Wednesday, January 25, 2006

Human Smuggling—Sentencing Guidelines Deficiencies?

US District Court Judge K. Michael Moore has “lashed out” at the federal sentencing guidelines because they “would not provide a sufficiently severe sentence for two men whose effort to smuggle Cubans into the United States last year ended in the drowning of a young boy.”[1]

Judge Moore’s outrage came during sentencing for Alexander Gil Rodriguez and Luis Manuel Taboada Cabrera, who “pleaded guilty last November to illegally attempting to transport immigrants to the United States.”[2] When their speedboat was spotted by the US Coast Guard, it capsized as the men tried to avoid being captured; Julian Villasuso Jr., who was six years old and was accompanied by his parents, was trapped under the boat and drowned.[3]

The two men struck plea agreements with prosecutors, and they have “have been assisting with investigations of ongoing immigrant-smuggling operations.”[4] In exchange for the assistance, prosecutors recommended prison sentences of 57 to 71 months in prison, which includes an additional 38 months because a death resulted from the commission of the crime.[5] Judge Moore, however, treated the enhancement with scorn stating “Three years and two months. Is that what the U.S. Attorney is saying that boy’s death was worth? That life was worth 38 additional months?” [6] He then indicated that he would sentence the defendants for more than 71months and postponed the sentencing until February 22 to give the defendant’s lawyer time to respond.[7]

Unlike the downward departures we for crack possession, this is an instance of a judge wanting to enhance a sentence. To see the issues at play in this case, it helps to look at what the defendants were charged with: a violation of , bringing in and harboring aliens. Under this statute, it is a crime for a person, knowing that another person is an alien, to bring or attempt to bring that alien into the in United States.[8] According to the statute, in the normal course of events, the punishment for this violation, if done for financial gain, is a fine, imprisonment for up to 10 years, or both.[9] If it is not done for financial gain, the punishment can be a fine, imprisonment for up to 5 years, or both.[10] However, if death occurs during a commission of this statute, the defendant can be sentenced to any term of years or for life, fined, or both.[11] That is what the statute states.

However, the sentencing guidelines state things differently. The base offense level for a violation of section 1324 is 12.[12] This translates to 10-16 months of prison. If the offense involved intentionally or recklessly creating a substantial risk of death, the offense level is raised by 2, but if the resulting offense level is less than level 18, it will be increased to level 18.[13] This translates to 27-33 months in prison. Finally, if death results from the commission, the offense level is raised by 8 levels[14] to level 26, which translates to 63-78 months in prison. Somewhere along the way, the prosecution knocked the offense level down by one, because 57-71 months in prison corresponds to a level 25 offense level.

It will be quite interesting to see what happens when the sentencing hearing continues. If Judge Moore gives an excessive punishment, there may be grounds for an appeal.


[1] Vanessa Blum, , Jan. 25, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] 8 U.S.C. § 1324(a)(1)(A)(i).
[9] Id. § (a)(1)(B)(i).
[10] Id. § (a)(1)(B)(ii).
[11] Id. § (a)(1)(B)(iv).
[12] U.S. Sentencing Guidelines § (a)(2).
[13] Id. § 2L1.1(a)(5).
[14] Id. § 2L1.1(a)(6).

posted by McNabb Associates, P.C. @ 3:35 PM