UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
UNITED STATES OF AMERICA
v.
JOSE MEDINA
)
)
)
)
)
Case No. 3:08-CR-48-001
Judge Varlan
SENTENCING MEMORANDUM AND
MOTION FOR SENTENCE BELOW GUIDELINE RANGE
SUBMITTED ON BEHALF OF JOSE MEDINA
______________________________________________________________________
I.
INTRODUCTION
Comes the Defendant, Jose Medina, through counsel, and respectfully submits
the following Sentencing Memorandum and Motion for Sentence Below Guideline
Range setting forth the factors which the Court should consider in determining the type
and length of sentence that is sufficient, but not greater than necessary, to comply with
the statutory directives set forth in 18 U.S.C. § 3553(a). A sentencing hearing was held
in this matter on or about September 15, 2010. At the hearing, the United States
presented the testimony of four witnesses: Edwin Morales, Christian Fuentes, Heriberto
Ayala, and Bruce Conkey. The defendant did not present any proof. At the close of the
United States' proof, the court, based on the defendant's oral motion for a variance,
allowed the defendant additional time in which to file a Sentencing Memorandum and
Motion for Sentence Below Guideline Range addressing the issues raised during the
evidentiary hearing.
This Sentencing Memorandum and Motion for Sentence Below Guideline Range
will address three issues to determine an appropriate sentence in this case. First, this
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Memorandum will address the statutory penalties related to Mr. Medina's offenses.
Second, the Memorandum will address the applicable sentencing factors set forth in 18
U.S.C. § 3553(a). Finally, the Memorandum will address why a variance is proper in
this case.
For the reasons set forth below, Mr. Medina respectfully suggests that a sentence
of 121-151 months is sufficient but not greater than necessary to achieve the necessary
sentencing objectives based upon the facts of this case.
II.
STATUTORY PENALTIES
Jose Medina pled guilty to three counts of the Second Superseding Indictment on
October 15, 2009. In Count 1, Mr. Medina pled guilty to a violation of 21 U.S.C. §§ 846
and 841(b)((1)(a). Count 2 charged Mr. Medina with a violation of 18 U.S.C. § 1956(h),
(a)(1)(A)(1), and (a)(1)(b)(1). Count 3 charged a violation of 18 U.S.C. § 924(c). The
statutory penalty for Count 1 is a term of imprisonment of not less than 10 years up to
life. The statutory penalty for Count 2 is a term of imprisonment not more than 20
years. There is a mandatory minimum term of imprisonment of 5 years as to Count 3. 1
III.
18 U.S.C. § 3553(a) FACTORS
The primary directive in 18 U.S.C. § 3553(a), often referred to as the “parsimony
principle,” is for the sentencing court to “impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in paragraph (2) of this
subsection.” 18 U.S.C. § 3553(a)(2) states that an appropriate sentence needs:
1 The Defendant has objected to the mandatory imposition of consecutive sentencing as to Count 3 in
his Objections to the Presentence Investigation Report based on United States v. Almany, 598 F.3d
238 (6th Cir. 2010) and will not address that issue gain in this Memorandum.
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(A)
(B)
(C)
(D)
to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
to afford adequate deterrence to criminal conduct;
to protect the public from further crimes of the
defendant; and
to provided the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.
18 U.S.C. § 3553(a) further directs sentencing courts to consider other factors,
including (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (3) the kind of sentencing available; (4) the kinds of
sentence and the sentencing range established for the type of offense committed by the
defendant as set forth in the United Stated Sentencing Guidelines; (6) the need to avoid
unwanted sentencing disparities among defendants with similar records who have been
found guilty of similar conduct; and (7) the need to provide restitution to any victims of
the offense. Each of these factors will be addressed.
A. Nature and Circumstances of the Offense
This case came about as a result of an investigation into a multi-state marijuana
and cocaine conspiracy by multiple law enforcement agencies. Mr. Medina was
supplied cocaine by a large scale cocaine dealer in Nashville, Tennessee, Heriberto
Ayala. (Presentence Investigation Report, hereinafter PSR, ¶ 22). Mr. Medina obtained
marijuana from two primary sources, Juan Diaz and Bernardo Valdez. (PSR, ¶ 22).
Christian Fuentes testified at the sentencing hearing. Mr. Fuentes' testimony
indicated that Mr. Medina and Edwin Morales were equal partners in the conspiracy. In
fact, the testimony of Christian Fuentes revealed that Mr. Medina and Mr. Morales were
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equal partners at times, and competitors at other times. Mr. Medina and Mr. Morales
sold cocaine and marijuana in the Knoxville area. It appears that Mr. Morales' customer
base consisted primarily of English speaking individuals because Mr. Morales is fluent in
English as well as Spanish.
The testimony at the sentencing hearing was fairly consistent with regard to how
Mr. Medina and Mr. Morales were supplied drugs. The witness testimony indicated that
an individual would arrive at Los Arcos restaurant and meet with Mr. Medina. Mr.
Medina would retrieve money from Mr. Morales. Mr. Medina would then give the money
to the supplier/courier and receive the drugs. At that point, Mr. Medina would hand the
drugs to Mr. Morales.
In total the conspiracy involved , during Mr. Medina's active involvement,
between 50-150 kilograms of cocaine and between 1000-3000 kilograms of marijuana.
Mr. Medina has consistently admitted that he was personally responsible for and
involved in 3 kilograms of cocaine and approximately 350 pounds of marijuana.
This case, like few others, illustrates that drug conspiracies are not structured
organizations with a central hierarchy that resembles a corporation. Rather, this drug
conspiracy seemed to involve a number of large-scale suppliers from Nashville, Texas,
and Mexico who were distributing cocaine and marijuana to a number of individuals in
the Knoxville area. The Knoxville contingent of the conspiracy was even less
organized. The proof at the evidentiary hearing revealed that individuals who were
sometimes partners were also sometimes competitors who were trying to get exclusive
agreements with different customers. Partners and competitors would try to “jump”
customers to cut out the middleman and make more money. Rather than a wheel with a
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central hub or leader/organizer of the organization, this case involves a series of
overlapping wheels without a central hub.
This point is best illustrated by the fact that multiple individuals alleged to be part
of one overall organization were competing for the same clientele. The competition was
so fierce that the different and overlapping groups were trying to steal the other group's
customers.
B. Character of Jose Medina
This case presents the Court with an unusual situation in that Mr. Medina is
facing, by any reckoning, a very lengthy sentence of imprisonment, yet he has no
Criminal History points. Mr. Medina is also facing collateral consequences as a result of
this conviction that are unique to Mr. Medina. As a result of this conviction, Mr. Medina
will be deported from the United States of America. The impact of this sentence on Mr.
Medina can not be overstated.
Jose Medina is a 41 year old Mexican national who has been in the United States
almost continuously since the 1980s. During that time, Mr. Medina has worked a variety
of jobs consisting mostly of manual labor and food industry work. Mr. Medina does not
have any specialized training, craft or skill.
Mr. Medina does not have any immediate family in the United States. His
parents and siblings reside in Mexico. As a result, Mr. Medina does not have a strong
network of support. After Mr. Medina is released and deported, he will have to attempt
to make a living in Mexico at a fairly advanced age.
Jose Medina has obviously committed a very serious offense for which he has
accepted responsibility and will be punished. Mr. Medina's motivation for committing
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this offense should be considered as part of the Court's determination in reaching an
appropriate sentence. Mr. Medina has a large and extended family in Mexico. Mr.
Medina, like many foreign nationals in the United States, hoped to create a better life for
himself and his family. Mr. Medina worked for many years earning a living through legal
means. Mr. Medina worked to support himself, his wife, and his extended family in
Mexico.
Unfortunately, Mr. Medina became involved in the drug trade. Mr. Medina did not
make large sums of money as a result of his involvement in this case. Mr. Medina
made an error in judgment, and recognizes the severe consequences he faces as a
result. One of the most difficult issues in this case has been for Mr. Medina to grasp the
meaning and impact conspiracy law has on his case. As the Court knows, this is not an
easy concept to grasp.
Mr. Medina readily admitted his involvement in the conspiracy charged. The one
issue that has consistently plagued this case has been Mr. Medina's difficulty in
comprehending that he can be sentenced for a quantity of drugs that is far greater than
he was actually responsible for. Rather than rehashing the issues raised in the Motion
to Withdraw Guilty Plea, it is sufficient to say that for a number of reasons, Mr. Medina
does not feel like he is being sentenced for a quantity of drugs for which he is personally
responsible.
Mr. Medina acknowledges his involvement in the conspiracy and admits his guilt,
but wants to be sentenced in a way that correlates with his true involvement and role in
the conspiracy.
C. SENTENCING OBJECTIVES of 18 U.S.C. § 3553(a)(2)
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1.
The need to reflect the seriousness of the offense, promote respect
for the law, and provide just punishment for the offense.
Jose Medina readily acknowledges the seriousness of this offense and his
contribution to and culpability in this case. The question of “just punishment” is,
however, the overarching question in this case. Mr. Medina suggests that a sentence in
the range of 121-151 months fulfills the objectives of promoting respect for the law and
in providing just punishment for this offense. The amount of time contemplate with such
a sentence is substantial and will have a devastating impact on Mr. Medina's life.
2. The need to afford adequate deterrence to criminal conduct.
Deterrence is a factor to be considered in relation the public at large as well as a
factor to consider specific to Mr. Medina. A sentence of 121-151 months is more than
adequate to provide a deterrent effect to the general public. In fact, such a sentence is
so substantial that it is hard to grasp the implication it will have on an individual
defendant. As to the application of the deterrent effect specific to Mr. Medina, the
consequences are clear. Mr. Medina will have spent the majority of his “middle-aged”
years in prison. After a sentence of 121-151 months, Mr. Medina would be released
while he was in his mid to late 50s. Mr. Medina will be deported to Mexico, a country he
has not visited in almost 20 years. His opportunities will be limited and his life will be
hard. A sentence within the 121-151 month range will accomplish the goals of general
and specific deterrence.
3.
The need to protect the public from further crimes of the defendant.
The scope of the conspiracy charged in this case was limited in time. Although
the quantities of drugs involved was large, the duration of the conspiracy was only from
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October, 2007 to May 11, 2008, a time of approximately 5 ½ months. Mr. Medina was
not a violent actor in this conspiracy and no lives were endangered.
If Mr. Medina is sentenced to a term of imprisonment of 121-151 months, Mr.
Medina will be unable to commit any offenses for a very long time. When he is
released, Mr. Medina will be at an advanced age and unlikely to commit any further
offenses. Likewise, Mr. Medina will be deported and will not be able to commit any
offenses in this country.
4.
The need to provide the defendant with educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.
Mr. Medina would benefit from the Bureau of Prisons RDAP program, based on
his lengthy substance abuse history. As detailed in Paragraph 59 of the PSR, Mr.
Medina first consumed alcohol when he was 12 years old. As Mr. Medina's drinking
habit escalated, he would drink to the point of being inebriated four times per week. Mr.
Medina has also abused marijuana and cocaine on a regular basis.
Mr. Medina is a laborer. Mr. Medina does not speak English. Mr. Medina could
benefit from language classes as well as vocational training to assist in his reintegration to society once he is returned to society. A sentence of 121-151 months
would allow Mr. Medina to avail himself of the opportunities offered by the Bureau of
Prisons.
D.
The kinds of sentences available and the sentencing range
established by the Sentencing Commission.
The United States Sentencing Guidelines are no longer mandatory, but instead
provide a “starting point” for the Court’s sentencing decision. Gall v. United States, 552
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U.S. 38 (2007); accord Cunningham v. California, 549 U.S. 270 (2007). District courts
are now required to consider the Guidelines, but should “tailor the sentence in light of
other statutory concerns, as well.” Kimbrough v. United States, 552 U.S. 85 (2007). As
a result, the Court must consider all of the factors set forth in 18 U.S.C. § 3553(a). Gall,
128 S.Ct. at 596.
United States Probation Officer Joe Thomas calculated Mr. Medina’s potential
guideline sentence. Based upon this calculation, Mr. Medina is facing a range of
punishment of 262-327 months imprisonment. This calculation is based, in part, on a
finding that Mr. Medina was a leader and organizer of the drug conspiracy and a leader
and organizer of the money laundering conspiracy. (PSR, ¶35 and 41). Because of that
determination, Mr. Medina received a 4 level enhancement in his guideline calculation.
A closer look at the guidelines as applied to this case is necessary.
The substantive offense in this case was Count 1 of the Second Superseding
Indictment, the drug conspiracy. Mr. Medina's guideline calculation is being driven,
however, by Count 2 of the Second Superseding Indictment, money laundering. Based
upon the quantity of drugs Mr. Medina is being held responsible for, his base offense
level is 36. After the 4 level leadership enhancement pursuant to USSG §3B1.1(a), his
adjusted offense level is 40.
Because of the multiple count grouping decision used by the Probation
Department, the adjusted offense level for Count 2 is 42. The adjusted offense level for
Count 2 includes a 4 level leadership enhancement pursuant to USSG §3B1.1(a) as
well as a two level enhancement for money laundering, the offense of conviction,
pursuant to USSG §2S1.1(b)(2)(B). After a 3 level reduction for acceptance of
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responsibility pursuant to UUSG §3E1.1(a) and (b), Mr. Medina's total offense level is
39.
As this Court knows, the guidelines are now only advisory, thus the Multiple
Count Grouping Decision does not have to be followed if it overstates or results in a
sentence that is not appropriate under the circumstances.
In this case, Mr. Medina suggests that a more appropriate guideline calculation ,
based upon the proof submitted at the sentencing hearing, would eliminate the 4 level
leadership enhancement for both Counts 1 and 2. The proof at the sentencing hearing
established that Mr. Medina was a mid-level player in this conspiracy. Mr. Medina was a
t times, an equal partner with and competitor to Edwin Morales. Mr. Medina did not
organize, lead, manage, supervise or direct other participants as it relates to Counts 1
or 2.
In determining whether a defendant qualifies as a leader, organizer, manager, or
supervisor, a trial court should consider a number of factors, including but not limited to
the defendant's exercise of decision-making authority, any recruitment of accomplices,
“the claimed right to a larger share of the fruits of the crime,” the degree of participation
in planning the offense, and the degree of control the defendant exercised over others.
USSG §3B1.1, Commentary, Application Note 4. The government bears the burden of
proving that the enhancement applies by a preponderance of the evidence United
States v. Martinez, 181 F.3d 794, 797 (6th Cir. 1999).
The proof at the sentencing hearing established that Mr. Medina would get
money from Edwin Morales to purchase drugs. Once Mr. Medina purchased drugs for
Mr. Morales, he would give the drugs to Mr. Morales. Mr. Medina was doing Mr.
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Morales' bidding. As to Count 2 of the Second Superseding, there is absolutely no proof
in the record establishing that Mr. Medina was the leader of the money laundering
offense. To the contrary, Mr. Medina had no ownership in Los Arcos. The only proof
relative to this issue was Mr. Morales' testimony that he and/or Mr. Medina would
occasionally lend the owner of Los Arcos money to pay a bill. This money was repaid
immediately. There is no proof in the record that establishes that Mr. Medina directed,
supervised, managed or instructed any other individuals with regard to the money
laundering count.
The record is devoid of any proof related to Counts 1 and 2 establishing that Me.
Medina recruited any other individuals or exercised any authority over other individuals.
Likewise, there is no proof establishing that Mr. Medina claimed a right to a larger share
of the fruits of the crime, or took a leadership role in planning the details of the offense.
The only proof in the record shows that Mr. Medina got money from Edwin Morales and
that it appeared that Mr. Medina and Mr. Morales were equal partners. The leadership
enhancement should not apply in this case.
Mr. Medina submits that the correct guideline calculation would result in a total
offense level of 35.2 The Defendant would agree with the calculation done as to Count
2 in the PSR. The base offense level is 36 as determined by the quantity of drugs. A
two level enhancement is applied pursuant to USSG §2S1.1(b)(2)(B), for an adjusted
offense level 38. After a three level reduction for acceptance of responsibility, the total
2 This section of the Sentencing Memorandum is submitted to comply with 18 U.S.C.§3553(a)(4). The
Defendant is requesting a variance from the guideline calculation.
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offense level is 35 with a corresponding range of punishment of 168-210 months. This
range of punishment is reasonable and within the framework of the guidelines.
E.
The need to avoid disparities.
This case involves approximately 17 co-defendants. This Court is in a unique
position to evaluate and analyze the various sentences handed down in this case. It is
anticipated that the United States will recommend a guideline sentence as calculated in
the PSR. The result of such a sentence would be to impose an unfairly harsh sentence
on a mid-level participant in the conspiracy. A guideline sentence as calculated by the
defendant resulting in a range of punishment of 168-210 months would avoid any
disparities as would a sentence below the guideline range as recommended below.
F.
Restitution to Victims
Restitution is not an issue in this case.
IV.
MOTION FOR SENTENCE BELOW GUIDELINE RANGE
Mr. Medina respectfully requests that the Court impose a sentence below the
guideline range established in the PSR. Mr. Medina has advanced an alternative
calculation above that would result in a guideline sentence of 168-210 months. Mr.
Medina is requesting a variance from that calculation as well. Specifically, Mr. Medina is
requesting that he be sentenced to a term of imprisonment of 121-151 months.
A sentence of 121-151 months is a guideline based sentence. Mr. Medina has
always admitted his role in this conspiracy, but has objected to the drug quantity he is
being held responsible for. Mr. Medina has repeatedly accepted responsibility for an
amount of drugs for which he was personally responsible. As reflected in Paragraph 29
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of the Presentence Investigation Report, Mr. Medina admitted to being responsible for 3
kilograms of cocaine hydrochloride and 350 pounds of marijuana. Based upon the drug
equivalency table in §2D1.1 of the United States Sentencing Guidelines, three
kilograms of cocaine converts to 600 kilograms of marijuana. 3 350 pounds of marijuana
converts to 158.76 kilograms of marijuana. 4 The total marijuana equivalence is,
therefore, 758.76 kilograms. Mr. Medina's corresponding base offense level according
to U.S.S.G. §2D1.1, should be level 30.
If the Court finds it appropriate, Mr. Medina would receive a 2 level enhancement
pursuant to USSG §2s1.1(b)(2)(B). If the Court declines to give Mr. Medina a 3 level
reduction for acceptance of responsibility the total offense level would be 32, with a
corresponding range of punishment of 121-151 months. 5
V.
CONCLUSION
For the foregoing reasons, Jose Medina respectfully suggests that a sentence of
121-151 months is sufficient but not greater than necessary to achieve the statutory
objectives set forth in 18 U.S.C. § 3553, and comports with the considerations set forth
in the United States Sentencing Guidelines.
Respectfully submitted on September 26, 2010.
3 1 gram cocaine = 200 grams marijuana.
4 1 pound = 453.6 grams
5In the alternative, if the Court finds that a 2 level enhancement pursuant to USSG §2S1.1(b)(2)(B) is
warranted, as well as a four level enhancement pursuant to USSG §3B1.1(a), the adjusted base offense
level would be 36. after a 3 level reduction for acceptance of responsibility, Mr. Medina's total offense
level would be 33 with a sentencing range of 135-168 months.
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s/Robert R. Kurtz
Robert R. Kurtz
BPR No. 020832
STANLEY & KURTZ, PLLC
422 S. Gay St., Suite 301
Knoxville, TN 37902
865/522-9942
CERTIFICATE OF SERVICE
I hereby certify that on September 26, 2010, a copy of the foregoing was filed
electronically. Notice of this filing will be sent by operation of the Court’s electronic filing
system to all parties indicated on the electronic filing receipt. All other parties will be
served by regular U.S. mail. Parties may access this filing through the Court’s
electronic filing system.
s/ Robert R. Kurtz
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