IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

SOAMI TATIANA MERA PALOMINO,

et. al.,

Defendants,

_______________________________ /

CASE NUMBER: 22-20501-CR-BLOOM

DEFENDANT MARIO AURELIO VITERI-LEON

SENTENCING MEMORANDUM, EXHIBITS and REQUEST FOR VARIANCE

Defendant, MARIO AURELIO VITERI-LEON (“Mr. Viteri-Leon”) by and through

his undersigned counsel, and pursuant to Title 18 U.S.C. §3553(a), herein files this

Sentencing Memorandum and Request for Variance and states as follows:

(I) Introduction

Mr. Viteri-Leon shall stand before this Court on sentencing day and this Honorable

Court shall impose a sentence this Court deems just. Mr. Viteri-Leon has plead guilty to

possessing with intent to distribute three kilograms of cocaine on October 14, 2022. Before

his actions in this case, Mr. Viteri-Leon had never possessed, negotiated, or in anyway

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for Variance

involved himself in the distribution of narcotics . What Mr. Viteri-Leon has possessed and

1

has involved himself in during the course of his entire life, has been instrumentalities and

characteristics of an honest, hard-working individual. He has earned the respect of coworkers, friends and family members. Mr. Viteri-Leon is not perfect man, however, the facts

of this case unequivocally demonstrate that his actions in this case where outside of his

character.

(II) Request For Variance

On April 5, 2023 the Sentencing Commission met and voted to promulgate the

Proposed Amendments to the United States Sentencing Guidelines. Many of the Proposed

Amendments are in response to the Congressional Directive to the Sentencing Commission

which seeks to limit long periods of incarceration only to violent offenders and offenders of

very serious crimes. United States Sentencing Commission Chairman, Carlton W. Reeves in

his opening remarks explained that many of the Amendments promulgated by the Sentencing

Commission were being proposed in order to “give judges more discretion to expand nonincarceration options to more people ”.

2

Chairman Reeve’s remarks are in keeping with the trajectory that began with the

At the time of his arrest, Mr. Viteri-Leon was in possession of a small amount of 1

marijuana for his personal use.

https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-hearings-and-me 2

etings/20230405/20230405_remarks.pdf (page 18-19).

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for Variance

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and followed by

Kimbrough v. United States, 128 S.Ct. 558 (2007), Rita v. United States, 127 S. Ct. 2546

(2207), and Gall v. United States, 128 S.Ct. 586 (2007). A trajectory which for the past

eighteen years has resulted in imposing lower sentences for non-violent, first offenders with

a particular emphasis on individualized sentencing. Thus, while the Guidelines remain “the

starting point and the initial benchmark” in determining a sentence, this Court “may not

presume that the Guidelines range is reasonable,” but must “make an individualized

assessment based on the facts presented.” Gall, supra at 596-598.

One of the most recent examples of the Sentencing Commission’s commitment to the

trajectory that began post-Booker, has come in the form of the proposed amendment to the

Advisory Guidelines. Of particular note is the proposed Amendment which creates a new

section under “Chapter Four - Criminal History and Criminal Livelihood” entitled: §4C1.1

Adjustment for Certain Zero-Point Offenders. This new provision calls for a 2-point

3

decrease of the total base offense level of the applicable Guidelines. Therefore, should

Congress adopt this particular Amendment in November, the Advisory Guideline applicable

to Mr. Viteri-Leon would be a range of 30-37 months versus the current 37-46 month

Advisory Guideline range. Again, this Amendment is in keeping with the Congressional

See 3

https://www.ussc.gov/sites/default/files/pdf/amendment-process/federal-register-notices/2023020

1_fr-proposed-amdts.pdf (page 211-212).

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mandate affording the opportunities for non-violent, “zero-point offenders” a decrease in the

applicable guideline range, which together with the §3553(a) factors, would allow for the

lowest possible term of incarceration or even a non-prison sanction. The proposed

Amendments to the United States Sentencing Guidelines also serve to make the necessary

changes to the Guidelines as provided for by the First Step Act .

4

The evidence in this case reveals a man who has engaged in behavior that was totally

uncharacteristic. Before his involvement in this offense, Mr. Viteri’s life was define as that

of a hard-working man, dedicated to family-- in particular to his beloved, son Camilo-- as

5

well as a man who was striving to achieve his long-time dream of owning his own restaurant

in the United States. It is his hope that after this Honorable Court has reviewed the facts and

circumstances of his life, as well as the circumstances of this offense, and when applying the

sentencing factors under 18 U.S.C. §3553(a), this Court shall impose a “sentence that is

sufficient, but not greater than necessary” comply with the purposes of sentencing. It is most

respectfully submitted that a sentence not to exceed 366 days ( one year and a day) of

incarceration will more than adequately serve to justly punish Mr. Viteri-Leon for his

conduct.

Pub.L. 115-391, 132 Stat. 5239 (2018).

4

Mr. Viteri-Leon’s son’s name is “Mario Camilo”, however, he is commonly referred to 5

as “Camilo”. 

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(A) Aberrant Behavior

The current Advisory Guideline in this case calls for a guideline range of 37-46

months. Mr. Viteri-Leon, a first time, non-violent offender seeks a variance from the

Advisory Guidelines based on the aberrant nature of his conduct. While the facts and

circumstances of this case fit within the confines of a departure for aberrant conduct under

§5K2.0 of the Advisory Guidelines, nonetheless is important to note that as a result of

Booker, this Court is empowered to grant a variance based on aberrant behavior, “without

the limitations on the use of factors to permit departures”. See United States v. Nesbeth, 188

F.Supp.3d 179 (E.D. N.Y.2016), see also United States v. Derusse, 859 F.3d 1232 (10

th

Cir.2017) “a variance can be imposed without compliance with the rigorous requirements for

departures”(citing United States v. Ganutt, 679 F.3d 1240, 1247 (10 Cir. 2012). Therefore,

th

while is respectfully submitted that the aberrant nature of Mr. Viteri-Leon’s conduct is

extraordinary in nature, this Court is now free to impose a below-Guideline sentence even

in the absence of extraordinary circumstances. See Gall, 128 S.Ct. at 595.

History and Characteristics of the Offender under §3553(a)(1)

The evidence of the aberrant nature of Mr. Viteri-Leon’s behavior is evidenced in

many ways. First, his participation in this offense is consistent with an inexperienced

individual who was out of his league and who was utilized by others in order to shield

themselves from detection by law enforcement. Mr. Viteri-Leon was the puppet and the

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others were tugging at the strings. The facts of this case are such that co-defendant, Jorge

Sisniegas Diaz acknowledged that he first met Mr. Viteri-Leon a day before the arrest. It was

co-defendant Sisniegas who was entrusted with the three kilograms of cocaine, and indeed

at one point, Mr. Sisniegas was in possession of as much as 50 kilograms of cocaine. To Mr.

Sisniegas’s credit, subsequent to his arrest he surrendered 500 additional grams of cocaine

that he had in his possession. (See ¶19 of the Pre-Sentence Investigation Report, herein after

referred to as “PSI”,see also. DE:41-Sisniegas’s Factual Proffer). It was Mr. Sisniegas Diaz

who gave the three kilograms of cocaine to co-defendant Soami Tatiana Mera and to Mr.

Viteri-Leon for distribution to the confidential informant. (See ¶’s 15 and 19 of the PSI, DE:

41).

(1) Testimonials of Mr. Viteri-Leon’s Commitment to Family, Friends &

Hard Work

Mr. Viteri-Leon comes from a close family unit with many life-long friends. As

demonstrated by the evidence in this case, Mr. Viteri-Leon has surrounded himself with the

love and support of family and friends. Until the day of his arrest, Mr. Viteri-Leon

substantially contributed to both, the financial and emotional support of his beloved son,

Camilo, he contributed to the support of his wife, Zaida Cruz, and his step-children, as well

as partially assisted his former spouse, Maria Cristina Reyna. The support provided to his

family and friends was not limited to financial support. Rather, Mr. Viteri-Leon has assisted

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and nurtured his family and his friendships with acts of kindness and emotional support. The

“Index to Exhibits” attached hereto, serves as evidence in support of the request for a

variance, and comes in the form of declarations from family, friends, co-workers and former

employers. Additional documentary evidence attached details Mr. Viteri-Leon’s education

and vocational training, excerpts of which shall be highlighted below. Furthermore, the

attached evidence shall be supplemented with testimony at the sentencing hearing. The

excerpts are as follows:

#Declaration of Aithia Paola Viteri-Leon (sister): “we are people who like to help others

without asking for anything in return”. Mr. Viteri-Leon is “much loved by his clients for his

charisma and his friendly manner, respectful and helpful personality”. (see Exhibit B-1)

#Declaration of Marcel Guillermo Defranc Zambrano (brother-in-law): Mr. Defranc

Zambrano, who is aware of Mr. Viteri-Leon’s case before this Court, states: “I can attest that

Mario is a person of integrity, responsibility, honesty, very hardworking and overall an

excellent father. He is also very caring with my children. I have witnessed his formation and

the efforts he made to become a chef...starting from zero, he has made it to recognized

restaurants and has been recognized for being a culinary representative of Ecuadoran

gastronomy”. (see Exhibit B-2)

#Declaration of Maria Cristina Reyna (former spouse): Ms. Reyna is also aware of Mr.

Viteri-Leon’s case before this Court, under penalty of perjury she states that she has known

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Mr. Viteri-Leon for more than 15 years . They have a 14-year son, Camilo. Ms. Reyna

characterizes, Mr. Viteri-Leon as an excellent father, both as a provider of financial support,

but also as a father who spends quality time with Camilo. In support of this belief she relates

an incident which took place last year when Camilo was required to present a school project

calling for presentation of a traditional food from his country. She called upon Mr. ViteriLeon at the last minute to help Camilo with this school project. Mr. Viteri-Leon cooked until

midnight so that his son could present a traditional dish to his class. The time spent between

father and son included a trip to Orlando where Mr. Viteri-Leon participated in a Jiujitsu

competition, Mr. Viteri-Leon taught Camilo the sport and discipline that is Jiujitsu, Mr.

Viteri-Leon being a part of Camilo’s friends and encouraging and assisting his son with

fostering and nurturing of his friendships. This is in keeping with what was taught to Mr.

Viteri-Leon, as evidenced by testimonials of Mr. Viteri-Leon’s own friends. Mr. Reyna

further details the many ways Mr. Viteri-Leon helps others, including her family,

notwithstanding the fact that they are no longer married. Finally, Ms. Reyna provides details

regarding Mr. Viteri-Leon’s work ethic, including the long hours, the many different jobs he

has held, oftentimes holding more than two jobs at the same time. (see Exhibit B-3)

#Declaration of Cristian Bravo Torres, DDS (Long-time friend): Dr. Bravo Torres, under

penalty of perjury states that he has known Mr. Viteri-Leon for more than 20 years, since the

time they were adolescents and he has seen Mr. Viteri-Leon grow into a “a hard-working

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man, dedicated to his family, mainly dedicated to his son with whom he spends most of his

time, teaching him his passion for the martial arts and his art for haute cuisine exercising his

work as a professional chef.” Dr. Bravo Torres concludes that “for this reason I can indicate

that he has been of great help and support to me and my family when I needed him thus I

believe and trust in his great humanity and his contribution to the social environment, this

is all I can say in honor of the truth.” (see Exhibit B-4)

#Angel Javier Gomez Quinonez (long-time friend): Mr. Gomez Quinonez states that he

has known Mr. Viteri-Leon for more than seventeen years, their love of soccer and their work

having brought them together. “I love him as if he were my own blood.” Mr. Gomez

Quinonez further declares, “I remember when he helped me make my commercials during

my college student days and later when I graduated obtaining a social communicator degree

and worked in a professional agency, he was also my production assistant always trying to

make an effort, there was a time when we were so close that we even lived together and he

was a great support for my younger brother. Cousin Mario has always been part of my life,

collaborating in my entrepreneurial projects or sharing with my family. During the time that

I have known him, I can attest that Mario is a person of integrity, responsibility, honest,

caring, an excellent uncle for my daughter Morena and above all a great example as a father

for myself, since I admire his relationship with Camilo, his son, whom I have known since

the day he was born, that is why he calls me uncle, I value him as a great friend and as if he

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were a brother.” Of Mr. Viteri-Leon’s commitment to his craft, writes, “It has been from his

training and career to be a chef and with a lot of sweat he managed to make a name for

himself.” Mr. Viteri-Leon also assisted Mr. Gomez Quinonez with his building his small

business in Miami. With respect to Mr. Viteri-Leon’s criminal conduct, Mr. Gomez

Quinonez states, “I am very sorry for Mario’s situation, Honorable Judge, and I can state that

the errors that he may have committed do not define who he is as a person, Mario has many

virtues that far outweigh his mistakes.” ” (see Exhibit B-5)

#Ezequiel A. Sanguinet - (former co-worker and friend) Mr. Sanguinetstates that he has

6

known, Mr. Viteri-Leon for more than six years when they met at a food event in Coconut

Grove where they were both working. He characterizes Mr. Viteri-Leon as a “good human

being” who always “likes to help” and who can always be “counted on”, “a person who I

always saw working and striving”. (see Exhibit C-5)

(2) Documentation of Mr. Viteri-Leon’s Employment, Education and

Community Involvement

Mr. Viteri-Leon is a high school graduate. (see Exhibit A-1). He enrolled in and took

Mr. Sanguinet also served as one of the two sureties on Mr. Viteri-Leon’s personal 6

surety bond stipulated to by the Government in this case. Mr. Sanguinet was advised by the

Honorable Judge Lauren Louis of the financial consequences Mr. Sanguinet would face should

Mr. Viteri-Leon not comply with the terms and conditions of his bond. In response to the Court’s

advisory and admonishing, Mr. Sanguinet, a home owner, agreed to serve as surety and advised

the Court that he had full faith in Mr. Viteri-Leon. Unfortunately, Mr. Viteri-Leon was served

with a detainer by the Department of Immigration & Customs Enforcement, he remained

detained.

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classes for a business degree, however, he did not complete the requisites of the degree. (See

Exhibit A-2). He held many jobs in Ecuador, most of which involved employment as a cook,

and with the honing of his culinary skills, he performed the job of assistant cook and later

head chef. (See Composite Exhibit B, B-2, B-4, B-5 and B-9). Since his arrival to the

United States, Mr. Viteri-Leon has engaged in lawful employment. He has worked tirelessly

in pursuit of his life-long vocation of chef. (See Exhibit Composite Exhibit B and C, B-1,

B-3, B-10,4, C-4). He has worked in restaurants of fine dining. He worked as a Sous chef in

Lique Restaurant, as well as SeaGrass, was characterized by these employers as a

“responsible”, “hard-working individual”, who “always arrived to work on time”. (See

Composite Exhibit C, C-1 and C-2). Mr. Viteri-Leon also worked at various different

restaurants and venues, all in the pursuit of mastering his craft and fulfilling his life-long

dream. (See Exhibits C-2). He has continued to further his vocation by engaging in virtual

programs, conferences, and local events. (See Composite Exhibit A and C, A-3, A-4, and

A5I thru A5V and C-3). Mr. Gallardo de la Puente, Executive Director of Taste Ecuador,

who has known Mr. Viteri-Leon for more than ten years, has referred to Mr. Viteri-Leon as,

“a reference of good Latin cuisine he has propriated that himself could dictate various

conferences in local Universities in their gastronomy schools as in the largest university in

Ecuador Uniandes and he was named embassador of the Ecuadoran cuisine.” (see Exhibit

C-3.

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Nature and Circumstances of the Offense under §3553(a)(1)

The nature of this offense and Mr. Viteri-Leon’s role compels this Court to exercise

it’s discretion and impose a sentence outside of the Advisory Guideline range. Mr. ViteriLeon was out of his league in this case. As previously indicated, Mr. Viteri-Leon participated

in a controlled purchase of cocaine. He participated on the day that a sample of cocaine was

provided to the confidential informants, and along with co-defendant Mera-Palomino, took

possession of the cocaine from co-defendant Sisniegas-Diaz on the day of his arrest. The

negotiations were actively pursued between the confidential informants and co-defendant Ms.

Mera-Palomino, and Mr. Viteri-Leon served asthe transmitter of information from those who

called the shots. It is important to note that while Mr. Viteri-Leon and his co-defendants

were initially charged with a conspiracy for ten kilograms of cocaine, clearly and

unequivocally, the evidence in this case shows that Mr. Viteri-Leon never agreed to a

transaction of ten kilograms of cocaine. Indeed, while the confidential informant was pushing

for a ten kilogram deal during, not only was there not an agreement for a ten kilogram deal--

but more importantly--the suppliers of cocaine in this case did not have ten kilograms of

cocaine was available for sale.

Mr. Viteri-Leon will present additional facts and arguments pertaining to the nature

and circumstances of his involvement in this case as the sentencing hearing.

A term of incarceration of not more than one year and one day would serve as the

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appropriate punishment for Mr. Viteri’Leon’s extreme lapse in judgment, which was fueled

by an unprecedented amount of emotional and financial stress as a result of the demands of

his employment at Lique and other issues that shall be detailed at sentencing hearing. Mr.

Viteri-Leon has lost a great deal more than his freedom. His has lost his life in the United

States, a life with his son, Camilo, most especially. He has lost the chance to fulfill his

dream of opening his own gourmet restaurant in south Florida. These collateral consequences

to Mr. Viteri-Leon are in a real sense, much worse, than a sentence within the advisory

Guidelines. Collateral consequences of this case to Mr. Viteri-Leon can be considered and

factored into consideration of the §3553(a) sentencing factors. Courts have weighed the

collateral damage of a conviction when considering the appropriate sentence. See United

States v. Nesbeth, supra at 195, wherein the district court found defendant’s inability to

pursue a teaching career and the goal of becoming a school principal as a result of

defendant’s conviction was sufficient punishment and a sentence of incarceration was not

necessary to render a punishment that is sufficient but not greater than necessary to meet the

ends of sentencing. See also United States v. Jaime, 235 F.Supp.3d 262, 265 (D. D.C. 2017).

Often times, we forget about all the different forms of punishment that a defendant

is subjected to, in addition to a prison sentence. Viteri-Leon will no longer be able to acquire

lawful permanent residency in the United States. He will now be forced to chose between

living thousands of miles apart from his beloved allowing for Camilo to be raised in a safe

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and secure environment in the United States, or to expose Camilo to the dangers and lack of

opportunities in Ecuador so that father and son may be together. This is a Hobbesian choice

if ever there was one. The anguish that he has been experiencing since his arrest on October

14, 2023 cannot be measured. He has not seen his beloved son since October 14 . Mr. Viterith

Leon shall not expose his son to a prison environment, an environment which is so foreign

to Mr. Viteri-Leon, and indeed his family and closest friends. This is not an environment that

Mr. Viteri-Leon is familiar with and it is not an environment that he would subject his son

to.

Clearly this first offense is to be viewed as an aberrant act of his otherwise lawabiding life. He has been gainfully employed all of his life. Indeed, he has worked long,

arduous hours, and he has engaged in meaningful activities in his community. He is a loving

father, who not only has financially supported his son, but a father who is actively engaged

in his son’s life. He has formed loving and long-lasting relationships with all of his family

members and his friends.

The guideline calculation of 37-46 months is but one measure of the seriousness of

the offense but is not always a reliable proxy for the culpability of an individual defendant.

See United States v. Suarez-Reyes, (D. Neb. 2012), see also United States v . Ysidro Diaz,

Case No.: 11-CR-821-2 (S.D.N.Y 2011)(Judge John Gleeson, presiding).

Based on the history and characteristics of Mr. Viteri-Leon, a sentence of 366 days

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would more than serve to deter him from ever engaging in criminal activity again. Just as the

Court in Gall concluded that the defendant therein was not going to return to criminal

behavior and is not a danger to society”, likewise, given way Mr. Viteri-Leon conducted

himself before his actions in this case, this Court should likewise feel confident that Mr.

Viteri-Leon will not pose a danger to the community nor is he likely to engage in criminal

behavior again. Gall supra at 57, 128 S. Ct. At 601.

(III) Conclusion

It is respectfully submitted that Mr. Viteri-Leon has shown that a variance from the

Advisory Guideline range is warranted and that a sentence not to exceed 366 days will more

than adequately served the goals of punishment. Mr. Viteri Leon has made extraordinary

efforts to show his shame and remorse so that he may redeem himself, not only in the eyes

of his family, but also in the eyes of the Government. As the late Honorable Judge Weinstein

noted many years ago, “Unlike their district court colleagues, appellate judges can neither

look defendants in the eye...nor struggle with assessing whether an offender is beginning or

ending a criminal career, appears to be dangerous or harmless, is a minnow in a sea of big

fish, or has gone astray under unusually stressful circumstances and will not offend again.

Appellate judges [do no see] large numbers of worried or stunned faces...

United States v. Naugle, 879 F.Supp 262, 267 (E.D.N.Y. 1995)(Judge Jack B. Weinstein,

presiding)(in part quoting from Roger K. Newman’s biography of Hugo Black. (Emphasis

added)(internal citations omitted).

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I HEREBY CERTIFY that a copy of the foregoing document was electronically filed

with the Clerk of the Court using CM/ECF and via e-mail to all co-counsel of record on this

18 day of April 2023.

th

RESPECTFULLY SUBMITTED,

ANA M. JHONES, ESQ.

Haley & Jhones, P.A.

9100 S. Dadeland Blvd., Suite 1500

PMB #150048

Miami, FL 33156

Telephone: (305) 661-4637

E-mail: ajhones@hsaalegal.com

BY: Ana Maria Jhones

Florida Bar No.: 771170

HALEY & JHONES, P.A.

9100 S. Dadeland Blvd., Suite 1500, Miami, FL 33156, Telephone: (305) 661-4637

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INDEX TO EXHIBITS

EXHIBIT A (Composite) - EDUCATION, VOCATIONAL, CERTIFICATES

A-1 High School Diplomas 2001

(and translation)

A-2 University Metropolitan Identification of Mr. Leon 2003

(and translation)

A-3 Pro Ecuador Certificate for virtual training by Mr. Viteri Leon 2022

A-4 Ecua-Exquisite-Dor Certificate of Attendance Mr. Viteri Leon

Workshop 2018

A-5I thru A5V - Photographs of Culinary Events

EXHIBIT B - (Composite) CHARACTER REFERENCE LETTERS

B1 - Alithia Paola Viteri-Leon (sister)

(and translation)

B-2 - Marcel Guillermo Defranc Zambrano (brother-in-law)

B-3 Cristina Maria Reyna (former spouse)

(and translation)

B-4 Cristian Bravo Torres, DDS (long time friend)

(and translation)

B-5 Angel Javier Gomez Quinonez (long time friend)

(and translation)

B-6 Ana Gabriela Duchely Paladines, DDS (long time friend)

(and translation)

HALEY & JHONES, P.A.

9100 S. Dadeland Blvd., Suite 1500, Miami, FL 33156, Telephone: (305) 661-4637

Case 1:22-cr-20501-BB Document 52 Entered on FLSD Docket 04/18/2023 Page 17 of 18
Page 18

USA v. SOAMI TATIANA MERA PALOMINO, Case Number:22-20501-CR-Bloom

Mario Viteri-Leon’s Sentencing Memorandum, Exhibits and Request for Variance

B-7 Liliana Bestabeth Garcia Leon (cousin)

(and translation)

B-8 Jorge Josue Harb Penilla (long time friend)

(and translation)

B-9 Juan Pablo Jaramillo Palomino (long time friend)

(and translation)

B-10 Luis Viteri (nephew)

B-11 Adrian Adum - (long time friend)

(and translation)

EXHIBIT C -EMPLOYMENT REFERENCES

C-1 - Martin Westinner, Lique Restaurant (former employer)

C-2 - Lauren De Meo, Seagrass (former employer)

C-3 Carlos Gallardo de la Puente, Zero Lab Restaurant (business colleague)

(and translation)

C-4 Ezequiel A. Sanguinet (co-worker/friend)

(and translation)

EXHIBIT D -PHOTOGRAPHS

D-1 Certificate of Death - Father (and translation)

D-2 Mr. Viteri-Leon Jijutsu

D-3 - Family Photos

HALEY & JHONES, P.A.

9100 S. Dadeland Blvd., Suite 1500, Miami, FL 33156, Telephone: (305) 661-4637

Case 1:22-cr-20501-BB Document 52 Entered on FLSD Docket 04/18/2023 Page 18 of 18