Opinion
Case Number: 1:09CR02475-001JB USM Number: 48652-051
08-08-2011
UNITED STATES OF AMERICA v. Loreto De Jesus Mendez-Velarde
Defense Attorney: Gregory Acton, Appointed
Judgment in a Criminal Case
(For Offenses Committed On or After November 1, 1987)
Defense Attorney: Gregory Acton, Appointed
THE DEFENDANT:
[×] pleaded guilty to count(s) Information
[] pleaded nolo contendere to count(s) which was accepted by the court.
[] after a plea of not guilty was found guilty on count(s)
The defendant is adjudicated guilty of these offenses:
+-----------------------------------------------------------------------------+ ¦ ¦ ¦ Count ¦ ¦ Title and SectionNature of Offense ¦ Offense Ended ¦ ¦ ¦ ¦ ¦ Number(s) ¦ +-------------------------------------------------+---------------+-----------¦ ¦21 U.S.C. Sec. Possession with Intent to ¦ ¦ ¦ ¦Distribute More Than 50 Grams of ¦07/21/2009 ¦ ¦ ¦ ¦ ¦ ¦ ¦841(b)(1)(A) Methamphetamine ¦ ¦ ¦ +-----------------------------------------------------------------------------+
The defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the Sentencing
Reform Act of 1984.
[] The defendant has been found not guilty on count.
[] Count dismissed on the motion of the United States.
IT IS FURTHER ORDERED that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.
May 24, 2011
Date of Imposition of Judgment
James O. Browning
Signature of Judge
Honorable James O. Browning
United States District Judge
Name and Title of Judge
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 40 months.
The Court recommends that Immigration and Customs Enforcement begin removal proceedings during service of sentence.
The Court incorporates by reference its Memorandum Opinion and Order, filed July 14, 2011 (Doc. 70)("MOO"). The United States Probation Office ("USPO") disclosed a Presentence Investigation Report ("PSR") for Defendant Loreta De Jesus Mendez-Velarde, calculating Mendez-Velardes offense level to be 31 and his criminal history category to be I, which produces a guideline sentencing range of 108 to 135 months. Mendez-Velarde requests a downward variance to a sentence of 40 months. The Court will grant Mendez-Velardes request. The Court adopts the PSRs factual findings and sentencing calculations as its own, subject to the Courts 2-level downward adjustment for safety-valve eligibility and the Court will not apply the mandatory minimum, as set forth in the Courts MOO. With the 2-level downward departure, Mendez-Velarde has an offense level of 29, which, with a criminal history category of I, provides a guideline sentence of 87 to 108 months.
The Court notes the Mendez-Velarde possessed with the intent to distribute approximately 82 grams of methamphetamine actual and approximately 26 grams of cocaine base. The Court further notes the defendant possessed a Colt .380 caliber handgun with serial number ML01133. The Court has carefully considered the guidelines, but in arriving at its sentence the Court has also taken account of not only the guidelines, but other sentencing goals. Specifically, the Court has considered the guideline sentencing range established for the applicable category of offense committed by the applicable category of defendant, and the Court, after carefully considering the briefs in this case, the PSR, and also the evidence and arguments presented at the hearing, has concluded that the punishment that is set forth in the guidelines is not appropriate for this sort of offense. The Court has considered the kinds of sentence and range the guidelines establish, and the Court believes that a variance is appropriate in this case. Mendez-Velarde was involved in the drug trade for a short period, and he played a rather insignificant role. He does not appear to have had much control over the quantity of drugs he received. The ease and speed with which Mendez-Velarde was caught will likely deter him from attempting to traffic drugs in the future. Moreover, Mendez-Velarde is a young man. He was twenty-one-years old at the time of his arrest. He has no other criminal history. He is married with three children, who range in age between two and seven years, and he will be deported following his sentence. The Court believes a sentence of 40 months is appropriate in this case. The Court believes a sentence of 40 months adequately reflects the seriousness of the offense, promotes respect for the law, provides just punishment, affords adequate deterrence, protects the public, and otherwise fully reflects each of the factors embodied in 18 U.S.C. § 3553(a). While the Courts task, as a district court, is not to arrive at a reasonable sentence -- it is to come up with one that reflects the factors in 18 U.S.C. § 3553(a), see United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007)("[A] district courts job is not to impose a reasonable sentence. Rather, a district courts mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of section 3553(a)(2).")(citation omitted) -- the Court believes this sentence is reasonable and more so than one within the sentencing guideline range. Finally, the Court believes the sentence adequately reflects Mendez-Velardes lack of criminal history, and that this sentence is sufficient without being greater than necessary to comply with the purposes of punishment Congress set forth in the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987.
[×] The court makes the following recommendations to the Bureau of Prisons:
Tucson Federal Correctional Institution, Tucson, Arizona, if eligible
[×] The defendant is remanded to the custody of the United States Marshal.
[] The defendant shall surrender to the United States Marshal for this district:
[] at on
[] as notified by the United States Marshal.
[] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
[] before 2 p.m. on
[] as notified by the United States Marshal
[] as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on _________________ to _________________ at _________________ with a Certified copy of this judgment.
_________________
UNITED STATES MARSHAL
By _________________
DEPUTY UNITED STATES MARSHAL
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of 5 years unsupervised.
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state, or local crime.
The defendant shall not unlawfully possess a controlled substance.
The defendant shall refrain from any unlawful use of a controlled substance.
The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
[] The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.)
[×] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable).
[×] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable).
[] The defendant shall register with the state, local, tribal and/or other appropriate sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.)
[] The defendant shall participate in an approved program for domestic violence. (Check, if applicable)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Criminal Monetary Penalties sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
STANDARD CONDITIONS OF SUPERVISION
1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4) the defendant shall support his or her dependents and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;
6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement;
SPECIAL CONDITIONS OF SUPERVISION
The defendant must not reenter the United States without legal authorization.
As to the following standard condition, it shall not apply to employers: as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendants criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendants compliance with such notification requirements.
CRIMINAL MONETARY PENALTIES
The defendant must pay the following total criminal monetary penalties in accordance with the schedule of payments.
[] The Court hereby remits the defendant's Special Penalty Assessment; the fee is waived and no payment is required.
+------------------------------------------+ ¦Totals:¦Assessment ¦Fine ¦Restitution ¦ +-------+------------+-------+-------------¦ ¦ ¦$100.00 ¦$0.00 ¦$0.00 ¦ +------------------------------------------+
SCHEDULE OF PAYMENTS
Payments shall be applied in the following order (1) assessment; (2) restitution; (3) fine principal; (4) cost of prosecution; (5) interest; (6) penalties.
Payment of the total fine and other criminal monetary penalties shall be due as follows:
The defendant will receive credit for all payments previously made toward any criminal monetary penalties imposed. A [×] In full immediately; or
B [] $ immediately, balance due (see special instructions regarding payment of criminal monetary penalties).
Special instructions regarding the payment of criminal monetary penalties:Criminal monetary penalties are to be made payable by cashier's check, bank or postal money order to the U.S. District Court Clerk, 333 Lomas Blvd. NW, Albuquerque, New Mexico 87102 unless otherwise noted by the court. Payments must include defendant's name, current address, case number and type of payment.
Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment, payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary penalty payments, except those payments made through the Bureau of Prisons' Inmate Financial Responsibility Program, are to be made as directed by the court, the probation officer, or the United States attorney.