Opinion
Case No: 3:09-00092(02)
03-26-2012
UNITED STATES of AMERICA, v. EDGAR GIOVANI ADAME PALOMINO
RESPECTFULLY SUBMITTED: LAWRENCE J. ARNKOFF TENNESSEE BAR # 026140 ATTORNEY FOR DEFENDANT
JUDGE HAYNES
MOTION FOR RECONSIDERATION OF SENTENCE
Comes Now the Defendant Edgar Giovani Adame Palomino by and through his undersigned counsel and respectfully files this motion requesting this Honorable Court reconsider the sentence imposed on Friday March 23, 2012. In support the undersigned would show as follows:
1. This Court recently sentenced Mr. Adame to 132 months after hearing argument from the undersigned asking for a downward departure from the guideline range of 121-151 months to the statutory mandatory minimum of 120 months and hearing from the Government their request for a sentence of 144 months.
2. The Court was openly giving consideration to giving Mr. Adame a bottom of the guideline sentence. The Court expressed sympathy to Mr. Adame being a criminal history category I and to the undersigned's argument that as a result of Mr. Adame's brother being murdered and Mr. Adame's fear for his family's safety in Mexico, his client was too frightened to cooperate and help himself. Mr. Adame spoke briefly to the Court apologizing for his conduct and expressing his hope to one day reunite with his family. The Court remarked that Mr. Adame's failure to mention his fear of the Mexican Cartel disturbed him and led him to believe Mr. Adame's fear was disingenuous. At that point the undersigned asked the Court for permission to speak, hoping to explain how Mr. Adame's failure to mention his fear of the Mexican Cartel is entirely consistent with the behavior the undersigned and former counsel AFPD Ron Small have had to cope with during their representation of Mr. Adame. The Court denied the undersigned an opportunity to speak.
3. The undersigned clearly brought to the Court's attention in his sentencing memorandum and at the sentencing hearing that neither Mr. Small nor the undersigned or their respective investigators had ever seen a defendant so reticent to discuss cooperation. Had the undersigned been permitted to respond to the Court's concerns after Mr. Adame spoke he would have explained to the Court that Mr. Adame has consistently advised the undersigned and his investigator that he does not trust that any conversation he has regarding the Cartel whether it is at the Robertson County Detention Center or at the Federal Courthouse will not filter back to Mexico. The undersigned had repeatedly attempted to get his client to proffer for "safety valve" purposes suggesting among other things that it could be privately done at the courthouse or U.S. Attorney's office; that an agent could come to the Robertson County Detention Center to interview him; that he could write out his statement and tender it to the U.S. Attorney's Office; and I even asked him if he would be willing to give a proffer to the Court prior to sentencing. Mr. McDonough can certainly attest to the repeated telephone calls the undersigned made to him concerning a way to make a proffer happen. The bottom line is Mr. Adame would not discuss his relationship with the Cartel anywhere. That includes telling the Court he fears they would harm his family in open Court. Mr. Adame never authorized the undersigned to seek relief concerning his fear of reprisals from Mexico. If Mr. Adame was not going to help himself by trying to become eligible for the safety valve or §5K1.1 relief, the undersigned was determined to at least advise the Court of the situation and seek §3553 relief.
4. When the undersigned presented his argument to the Court he had no reason to make the Court aware that during allocution his client would never ever discuss anything about the Cartel. The undersigned was not certain his client was even going to allocute. When the undersigned asked the Court's permission to speak he was only going to offer a clarification; he was not going to offer more argument or rehash matters that had already been presented. The Federal Rules of Criminal Procedure provide that defendant's counsel can allocute on his behalf prior to the Court imposing a sentence. FED. R. CRIM. P. 32(i)(4)(A)(i). The undersigned should have been permitted to speak for his client and it was error for the Court to refuse the undersigned the opportunity to do so.
5. The undersigned avers the Court has jurisdiction to hear this motion. The Court has not yet entered a written sentencing judgment and the defendant's time for filing an appeal has not yet expired. Although there is no federal criminal or civil rule expressly allowing motions to reconsider, most federal judges entertain them. See Thomas v. United States, a recent case where Judge Trauger acknowledged that despite not being in the Criminal or Civil rules, motions for reconsideration are reviewable. Thomas v. United States, Case No: 1:11-CV-0038, (M.D. Tenn. 2012). See also United States v. Snipes where the Sixth Circuit acknowledges the filing of a motion for reconsideration of a criminal sentencing judgment. United States v. Snipes, 385 Fed.Appx 483 (6th Cir. 2010). The fact that the PACER electronic filing system allows you to categorize a motion as one "for reconsideration" is also evidence of that these motions are acceptable. It would be inappropriate to seek reconsideration if I was asking to introduce new evidence that was available to the Court during the hearing or to introduce new legal theories. I am only attempting to clarify a matter I was not permitted to address at the sentencing hearing and I am moving expeditiously to file this motion prior to the Court entering a written judgment. If the Court had not so openly discussed his sympathy for Mr. Adame's valid concerns for his family's safety I would not be pursuing this matter.
6. Fairness would dictate the Court consider the undersigned's clarification. The Court is aware Mr. Adame has been a difficult client. He fired Mr. Small and attempted to replace the undersigned. It would be easy for me to close the file and not fret about the fact my client got an eleven year sentence instead of a ten year one. However, I know this Court and the other Judges in this District expect the CJA panel members to zealously advocate for their clients within the boundaries of the court rules and the code of ethics. By filing this motion I am attempting to do that.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this notice was electronically mailed to AUSA Harold McDonough, USPO Andrea Testa and all counsel of record this 25th day of March, 2012.
RESPECTFULLY SUBMITTED:
LAWRENCE J. ARNKOFF
TENNESSEE BAR # 026140
ATTORNEY FOR DEFENDANT