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Media Alerts - USA v. Gamez Reyes - Ninth Circuit
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December 6, 2014
  USA v. Gamez Reyes - Ninth Circuit
Headline: Ninth Circuit Affirms Eight-Year Sentence of Participant in Smuggling Operation of Illegal Aliens and Unaccompanied Alien Minors.

Area of Law: Criminal Law & Procedure

Issue Presented: Whether the district court erroneously added two enhancements to a defendant's sentence when both the defense and government recommended a shorter sentence.

Brief Summary: Defendant-Appellant, Fredy Oswaldo Gamez Reyes ("Reyes"), appealed from the district court's determination that two enhancements be added during his sentencing pursuant to U.S.S.G. section 2L1.1(b)(4), harboring unaccompanied minor aliens, and pursuant to U.S.S.G. section 2L1.1(b)(8)(A), involuntary detainment of aliens through coercion or threat or in connection with a demand for payment.

First, the Ninth Circuit repeated the district court's application of U.S.S.G. section 1B1.3(a)(1)(B), which provides that "in the case of a jointly undertaken criminal activity, whether or not it is charged as conspiracy, a particular special offense characteristic should be determined based on 'all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.'"

The Court then analyzed whether it was reasonably foreseeable to Reyes that the smuggling operation involved unaccompanied minor aliens and the involuntary detainment of aliens through coercion or threat or in connection with a demand for payment. The Court concluded in the affirmative, referencing the size of the smuggling operation as well as Reyes' frequent visits to the stash houses in which the aliens and minors were imprisoned.

Extended Summary: Between May 2008 and March 2011, Reyes participated in a smuggling operation in which he was responsible for obtaining, renting, maintaining, and operating stash houses, in addition to collecting smuggling fees from family members in exchange for the release of aliens. Through this operation, approximately two thousand aliens were smuggled annually into the United States.

On July 27, 2009, two female aliens in a Compton stash house handed a note to children outside the house's barred window. The note was written on toilet paper and read, "Don't call the police... We are immigrants and we cannot leave." The children gave the note to a neighbor, and eventually the owner of the house and police were notified. When the Immigration and Customs Enforcement ("ICE") agents arrived, they arrested eighteen aliens, two of which were later determined to be thirteen and fifteen years old. Between January 2010 and March 2011, ICE agents executed search warrants on three houses in Southern California and discovered a total of seventy-nine smuggled aliens.

At trial, Reyes pleaded guilty to six counts of statutory violation of harboring and concealing illegal aliens for financial gain. In negotiating Reyes' plea, the government agreed not to recommend a term of imprisonment higher than the low end of the applicable Sentencing Guidelines range. However, the district court was not bound by such recommendation.

The United States Probation Office submitted a presentence report recommending a two-level enhancement for smuggling, transporting, or harboring an unaccompanied minor, and a second two-level enhancement for the involuntary detainment an alien through coercion or threat, or in connection with a demand for payment.

Over the objections of Reyes and the government, both recommending a shorter sentence, the district court imposed the two enhancements and added a third for an aggravated role in the offense. Reyes was sentenced to eight years' imprisonment - the top of the Sentencing Guidelines range. Reyes appealed.

The Ninth Circuit reviewed de novo the district court's interpretation of the Sentencing Guidelines and reviewed its factual findings for clear error. The Court echoed the district court's application of U.S.S.G. section 1B1.3(a)(1)(B), that "in the case of a jointly criminal activity, whether or not it is charged as conspiracy, a particular special offense characteristic should be determined based on 'all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.'"

In its discussion of the unaccompanied minor enhancement, the Court stated that the district court correctly applied the "reasonably foreseeable" standard, against Reyes' argument that the district court applied a "strict liability" standard. The Court clarified that the inclusion of minor aliens need not be an "obvious fact" but need only be "reasonably foreseeable."

The Court then repeated that because the smuggling ring was large in size and had no system to ensure that minor aliens were accompanied, it was reasonably foreseeable for Reyes to have known that minors were among the smuggled aliens. The Court also noted that the minors' last name did not match any others at the stash house. The Court opined that Reyes' familiarity with and frequent visits to the stash houses, in addition to his numerous encounters with the guards stationed there, his overseeing the maintenance and operation of the stash houses, and his personally collecting smuggling fees further indicated Reyes' reasonable foreseeability that unaccompanied minors were among the smuggled aliens.

In its discussion of the involuntary detention enhancement, the Court agreed with the district court that the aliens were confined in "coercive and threatening conditions." The Court stressed that the Compton stash house had bars on the windows, guards next to doors, an aggressive pitbull, and guns in plain sight. Furthermore, one witness claimed that guards beat and sexually assaulted other aliens. The Court inferred that these conditions were easily observable to Reyes and therefore reasonably foreseeable.

Finding no errors by the district court, the Ninth Circuit succinctly concluded its opinion by affirming the two disputed sentencing enhancements.

For the full opinion:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/21/13-50086.pdf

Panel: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges.

Date of Issued Opinion: November 21, 2014.

Docket Number: 13-50086

Decided: Affirmed.

Case Alert Author: Daniel S. Seu

Counsel: Marisa Conroy (argued), Law Office of Marisa L.D. Conroy, Encinitas California; Michelle Anderson Barth, Burlington, Vermont, for Defendant-Appellant; Kerry C. O'Neill (argued) and David M. Herzog, Assistant United States Attorneys; Robert E. Dugdale, Assistant United States Attorney, Los Angeles, California, for Plaintiff-Appellee.

Author of Opinion: M. Murguia, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 12/06/2014 04:26 PM     9th Circuit  

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