GOVT’S SENTENCING MEMORANDUM 

NO. 17-CR-0068-008 EJD 1 

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DAVID L. ANDERSON (CABN 149604) 

United States Attorney 

HALLIE HOFFMAN (CABN 210020) 

Chief, Criminal Division 

KAREN KREUZKAMP (CABN 246151) 

STEPHEN MEYER (CABN 263954) 

Assistant United States Attorneys 

450 Golden Gate Avenue, Box 36055 

San Francisco, California 94102-3495 

Telephone: (415) 436-7014 

FAX: (415) 436-7234 

Karen.Kreuzkamp@usdoj.gov 

Stephen.Meyer@usdoj.gov

 

Attorneys for the United States of America 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

UNITED STATES OF AMERICA, 

v. 

GERBER MORALES, 

a/k/a “Choco,” a/k/a “Chuki,” 

Defendant. 

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NO. 17-CR-0068-008 EJD 

GOVERNMENT’S SENTENCING 

MEMORANDUM 

Sentencing Date: July 17, 2019 

Time: 1:30 p.m. 

The government respectfully submits this sentencing memorandum to request that the 

Court sentence defendant Gerber Morales to 87 months of imprisonment, five years of 

supervised release, and a $200 special assessment. This sentence is at the top of the applicable 

Guidelines range, which is 70-87 months, but would be at the bottom of the Guidelines range 

without the two-point reduction for the safety-valve. Given that the defendant has been (and 

continues to be) a dedicated MS-13 gang member for at least 7 years, was part of a gang that was 

dedicated to committing acts of violence against rivals and threatening violence against others, 

personally possessed at least two firearms, attended at least 17 MS-13 gang meetings and held a 

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GOVT’S SENTENCING MEMORANDUM 

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position of leadership for a short period of time, and was a key player in the gang’s distribution 

of crystal methamphetamine in Santa Cruz since at least March 2015, the government believes 

that a sentence of 87 months is the lowest sentence necessary to achieve all of the goals of 

sentencing. 

I. Offense Conduct 

As set forth in more detail in Probation’s Presentence Investigation Report (the “PSR”), 

the defendant has been an active member of the Santa Cruz Salvatruchas Locos 13 (“SCSL”) 

clique of the MS-13 gang for the last seven to eight years. (PSR ¶28). Even since his arrest on 

the instant federal case, the defendant has remained an active MS-13 gang member, albeit in a 

custodial setting rather than on the streets.1

 

It is undisputed that the MS-13 transnational gang is among the most violent and ruthless 

street gangs in the United States, and that its members rely on its violent reputation to control 

territory in which to conduct their drug trafficking and extortion activities and to dissuade 

witnesses from reporting their criminal activities to law enforcement. As a clique of MS-13, 

SCSL members committed acts of violence, including murder and extortion, and sold crystal 

methamphetamine for the benefit of their clique and the transnational MS-13 gang. 

To carry out their violent crimes, the SCSL gang regularly collected money for firearms 

for the gang and passed around guns for use by SCSL members. At a meeting on March 21, 

2015, defendant Morales collected the money.2 Defendant Morales has admitted to carrying a 

firearm on at least one occasion in 2014. Defendant Morales was also given another gun by an 

 1

 Jail classification records reflect that defendant Morales has been classified as an active 

gang member during his entire time in custody. In addition, jail disciplinary records reflect that: 

(1) Morales admitted to possessing several pieces of metal (1 inch in length) in his cell on 

9/29/18 for which he received an administrative sanction of 15 days lost privileges, (2) Morales 

was found to have been engaged in a fight in the jail on 8/16/18 (no other info is known to the 

government at this time), (3) Morales was found to have engaged in a planned attack with two of 

his co-defendants against a single individual on 3/16/18, and (4) on three separate occasions, 

Morales was found to be in possession of “pruno,” for which he also received administrative 

sanctions. 

2

 Defendant Morales was known to have attended at least 17 SCSL monthly meetings 

between May 2013 and January 2017. He was made the Number 2 in charge of SCSL for a short 

period of time in January 2016 until April 2016. 

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MS-13 member for safekeeping, and Morales later gave that gun to another MS-13 member who 

did not have a firearm available for his use. (PSR ¶¶ 28-29). 

As a member of SCSL, defendant Morales and other MS-13 members participated in 

periodic armed patrols of their gang’s turf to maintain control over that area. (PSR ¶28). SCSL 

also periodically went into rival gang territory to look for rivals to attack or threaten and 

intimidate. On July 15, 2016, defendant Morales and other MS-13 members went on patrol into 

the rival territory of the Beach Flat Sureños gang. The MS-13 members spotted an individual 

that they believed to be a rival gang member, and co-defendant Escalante-Torres shot the 

perceived rival. (PSR ¶42). Up until this point, the SCSL gang was known for typically 

attacking rivals with their fists or with knives and similar weapons, rather than by firing guns at 

them. From this point on, however, SCSL’s participation in more extreme violence became their 

norm, ultimately culminating in the murder of a perceived rival on September 22, 2016. 

Defendant Morales was not directly involved in the planning or the execution of this murder. 

However, after this murder, several SCSL members, including Morales, received increasing 

pressure to commit a murder since they had not yet committed one. The government arrested 

defendant Morales and others on drug and extortion charges in order to disrupt their plans to 

carry out at least one additional murder. 

As a member of SCSL, defendant Morales directly disciplined other members of SCSL 

by beating them for at least 13 seconds (the count to 13 usually takes significantly longer than 13 

seconds). (PSR ¶29). These 13 second beat downs were a long standing MS-13 tradition, and 

were also used to initiate every new MS-13 member. 

From at least April 2012, the SCSL gang was extorting people and selling drugs for the 

benefit of SCSL and MS-13 generally. Defendant Morales was not directly involved in the 

extortion activities, but was well aware of them since they were discussed at numerous SCSL 

meetings. (PSR ¶30). 

 From at least March 2015, defendant Morales was one of two SCSL members directly 

involved in selling crystal methamphetamine on behalf of SCSL. Between April 2015 and 

September 2015, defendant Morales sold over 50 grams of crystal methamphetamine to a 

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confidential informant working with law enforcement. Defendant Morales admitted that he in 

fact sold at least 150 grams of actual methamphetamine, but less than 500 grams of actual 

methamphetamine. (PSR ¶¶ 31-41). Among the SCSL gang members, defendant Morales was 

one of two members who were the most directly involved in dealing drugs. 

II. Guidelines Calculation 

Based on the defendant’s plea to Counts One (RICO conspiracy) and Three (conspiracy 

to distribute 50 grams and more of crystal methamphetamine), the parties agree that the 

Guidelines are calculated as follows: 

a. Base Offense Level, U.S.S.G. §2E1.1(a)(2) (Racketeering) 32 

(Most serious underlying racketeering activity: collective distribution of 

150 grams or more of actual methamphetamine (§2D1.1)) 

b. Acceptance of Responsibility: - 3 

 If I meet the requirements of U.S.S.G. § 3E1.1, I may be entitled to 

a three-level reduction for acceptance of responsibility, provided 

that I forthrightly admit my guilt, cooperate with the Court and the 

Probation Office in any presentence investigation ordered by the 

Court, and continue to manifest an acceptance of responsibility

through and including the time of sentencing. 

c. Adjusted Offense Level: 29 

The parties contemplated that defendant Morales may be eligible for the safety-valve, 

which would allow him to escape the ten-year mandatory minimum for the drug charge, as well 

as obtain a two-level reduction from the applicable Guidelines. The government agrees that the 

defendant has now met all of the requirements for the safety-valve and therefore the Total 

Offense Level is 27. The defendant has a criminal history category of I, which results in a 

Guidelines range of 70 to 87 months. Without the two-level safety-valve reduction, defendant 

Morales’s Guidelines range would have been 87 to 108 months, with a mandatory minimum 

sentence of 120 months. 

The government has classified the defendants into two groups. Group One includes all of 

the defendants who were not directly involved in the conspiracy to murder Victim-2, five of 

whom have pled guilty. Group Two consists of all of the defendants who were directly involved 

in the conspiracy to murder Victim-2. With respect to Group One, three of the defendants were 

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charged with the drug conspiracy count, and three were not. All six of these defendants 

Guidelines are based on the drug trafficking conspiracy, and the Total Offense Level is identical 

before the application of a potential safety-valve reduction. However, in a twist of irony, only 

the defendants who were directly involved in the drug trafficking are eligible for the two-level 

safety-valve reduction. Thus, the defendants most directly involved in the drug trafficking 

conduct are actually obtaining a lower Total Offense Level calculation. The government, 

therefore, is considering both the Guidelines range before the safety-valve reduction and the 

Guideline range after the safety-valve reduction in evaluating the appropriate sentence for each 

of the defendants in Group One.3 Of course, the other 3553(a) factors also play a critical role in 

reaching the government’s ultimate sentencing recommendation. 

III. Other Section 3553(a) Factors 

The factors listed under 18 U.S.C. § 3553(a) indicate that a sentence at the top of the 

applicable sentencing Guidelines range is necessary to achieve the goals of sentencing. The key 

3553(a) sentencing factors in this case are the nature and circumstances of the offense and the 

history and characteristics of the defendant, 3553(a)(1), and the need for the sentence to afford 

adequate deterrence and protect the public from further crimes of the defendant, 3553(a)(2). 

A. Nature and Circumstances of the Offense

The nature and circumstances of the offense are discussed above in the “Offense 

Conduct” section. In addition, the Guidelines account for some of the relevant factors related to 

the defendant’s offense conduct (e.g., the amount of drugs involved). However, there are many 

other aggravating facts regarding the defendant’s offense conduct that are not adequately 

addressed by the Guidelines. The result is that the Guidelines do not provide increased 

punishment based on the following aggravating factors relating to the offense conduct: 

(1) The defendant was an MS-13 gang member for at least 7 years, and regularly attend 

SCSL gang meetings at which they discussed their violent crimes and plans to 

 3

 The Guidelines range for the defendants in Group Two are driven by the murder of 

Victim-2 and the Base Offense Level begins at 43 for each of those defendants. Thus, their 

Guidelines ranges are all at least approximately 20 years, with many of them being 30 years to 

life. 

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commit further violent crimes, as well as collecting money for guns and to otherwise 

support their continuing criminal activity; 

(2) MS-13, including defendant’s particular clique (SCSL), engaged in ongoing and 

significant violence against rival gangs, which ultimately culminated in a murder; 

(3) The defendant was directly involved in patrols of their turf for potential rivals or 

others to attack and/or intimidate; 

(4) The defendant was directly involved in patrols of rival gang territory to seek out 

rivals to attack, including one patrol in rival gang territory that led to the shooting of a 

perceived rival by one of the MS-13 gang members that was patrolling in the same 

car with defendant Morales; 

(5) The defendant personally possessed at least two guns on separate occasions, and 

provided one of the guns to another MS-13 gang member for his use, knowing that it 

would likely be used from violent crime; and 

(6) The defendant was directly involved in disciplining fellow gang members by beating 

them, and for a short period of time he was the Number 2 leader of the SCSL clique. 

Thus, the offense conduct that is taken into account in reaching the Guidelines calculation for 

this defendant only accounts for the drug trafficking aspects of the RICO conspiracy. In doing 

so, it fails to account for large amounts of offense conduct that is far more troubling and which 

are aggravating factors for sentencing. 

 If drug trafficking was the extent of defendant’s offense conduct, the government might 

be in agreement with Probation’s recommendation of a below-Guidelines sentence, given the 

social history that is a mitigating factor for sentencing. However, given the significant amount 

of aggravating factors that are not even reflected in the Guidelines calculation, the social 

circumstances are dwarfed when considering sentencing mitigation. 

B. History and Characteristics of the Defendant 

The offense conduct in this case, especially defendant Morales’s long-time membership 

in MS-13, accounts for the most significant aggravating factor in the history and characteristics 

of the defendant. In addition, while he has been in custody on the instant case, defendant 

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Morales has committed several disciplinary offenses ranging from the possession of contraband 

such as “pruno” on three occasions and metal objects on another occasion, to engaging in jail 

fights, including one that was a planned attack by the defendant and two of his co-defendants 

against a single inmate. 

On the other hand, a potentially mitigating aspect of the defendant’s history and 

characteristics is his lack of prior convictions. However, this potential sentencing mitigation is 

tempered by the fact that defendant Morales was actively engaged in criminal conduct for many 

years, but simply was not caught. This is not a situation where the instant offense was an 

isolated incident or a brief foray into criminal activity by this defendant. Defendant Morales 

joined a gang dedicated to violent crime and he demonstrated his commitment to the gang and its 

crimes by regularly attending meetings, providing money for guns and to otherwise support the 

gang, by personally possessing guns, by personally patrolling with the gang to attack rivals, and 

by selling crystal methamphetamine to further support the gang. 

A truly mitigating aspect of the defendant’s history and characteristics is his upbringing, 

which admittedly was tragic and likely contributed to his decision to join the violent MS-13 

gang. The defendant’s father was murdered in El Salvador when the defendant was only three 

years old. (PSR ¶69). The defendant’s mother was absent fighting in the civil war and later 

working in another city. (PSR ¶71). The defendant was raised by his grandparents, but his uncle 

regularly beat him, and even threatened him with a gun on one occasion when he was only about 

12 years old. (PSR ¶76). The abuse finally stopped when Morales was old enough to defend 

himself, at age 15 or 16. (PSR ¶77). Morales began drinking alcohol and smoking marijuana at a 

young age, and his abuse of alcohol was a problem until he stopped drinking about 5 years ago. 

(PSR ¶83-84). Morales also began using methamphetamine when he was 21 years old and used 

it two to four times a month. (PSR ¶83). 

In the end, the government does not believe that this mitigation warrants a sentence 

below the very top of the applicable Guidelines range given the overwhelming number of 

aggravating facts. 

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The U.S. Probation Office’s recommendation of a sentence of 60 months appears to be 

grounded solely in defendant Morales’s abuse as a child and his use of marijuana and alcohol at 

a young age. However, Probation fails to adequately account for the multitude of aggravating 

factors and does not balance them against this mitigating factor. Probation’s recommendation 

seems to be based on a classification of this defendant as simply another drug dealer, and then 

makes a wholesale rejection of the sentencing Guidelines calculation for drug offenses, and fails 

to account for all of the other criminal conduct by this defendant that makes up the RICO 

conspiracy offense conduct. The PSR recommendation recites what appear to be aggravating 

sentencing factors – the seriousness of the offense, but only highlighting his involvement in 

selling crystal methamphetamine – and also recites what appear to be mitigating factors – 

personal history of abuse. However, aside from reciting these factors, there is no explanation for 

how these factors, on balance, justify such a large sentencing reduction below the applicable 

Guidelines range. 

Probation’s recommendation was also made without knowledge of defendant Morales’s 

in-custody violence and other jail rule violations. Perhaps by the government highlighting the 

aggravating factors of the offense conduct, and providing the new information about his incustody conduct, Probation will reconsider its recommendation. In any event, the Court should 

not follow Probation’s current recommendation and vary downward from the sentencing 

Guidelines based solely on his history of a very difficult and abusive childhood. This one 

mitigating factor should not counterbalance all of the aggravating facts in this defendant’s case. 

Moreover, to the extent that one may argue that his bad childhood makes him somewhat less 

blameworthy for becoming the man who got involved in gangs and committed the crimes in this 

case many years after the abuse ceased, logic dictates that it also makes him a greater risk for 

recidivism. 

C. Protection of the Public and Deterrence

Specific deterrence and general deterrence are both significant goals of sentencing. A 

significant sentence is necessary to deter this defendant from future crimes and to assist him in 

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making the sustained choice to comply with the law and distance himself from gangs and crime 

once he is released from custody. 

In addition to specific deterrence, general deterrence warrants a significant sentence in 

this case. The defendant’s criminal activity included directly supporting the criminal activities of 

his fellow gang members, which on one occasion led directly to the shooting of a perceived rival: 

Victim-1. More generally, the defendant supported the gang by contributing money for guns and 

storing one firearm and then passing it on to another MS-13 member who did not have a gun for 

his use. The gang ultimately committed a murder: Victim-2. 

Gangs are successful in large part because their members engage in criminal activity in 

concert. The conspiracy to engage in such concerted criminal activity on an ongoing basis, 

including crimes of violence, drug trafficking, and use and possession of firearms, presents a 

substantial threat to the communities in which the gangs operate. As a result, significant 

punishment is needed for all violent gang members to deter membership and support for such 

criminal enterprises. The RICO statute is uniquely suited to provide such a deterrent to those 

who aid and abet and conspire to commit these types of ongoing criminal activities. However, 

the statute must be sufficiently enforced at sentencing to carry out its full potential for deterrence 

(both for the specific individual and for others generally). 

IV. Conclusion 

Considering all of the 3553(a) sentencing factors, the government respectfully 

recommends a sentence of 87 months’ imprisonment, a five-year term of supervised release, and 

a $200 special assessment. 

Dated: July 10, 2019 

 DAVID L. ANDERSON 

 United States Attorney 

 /s/ 

 STEPHEN MEYER 

 KAREN KREUZKAMP 

 Assistant United States Attorneys 

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