drug trafficker with good connections, as further evidenced by his admitted possession of seventy

kilograms of marijuana. In his request for a new sentence, the principal argument made by

Defendant is that he is entitled to a reduced sentence because, as an alien, he will be ineligible for

placcment in a half-way house. However, under the circumstances of this case Defendant’s alien

Status is not a proper basis for a downward adjustment or variance from the advisory guideline

sentence. It is also noteworthy that Defendant’s sentence approximates the mandatory minimum
ten year sentence for those persons who traffic in five kilograms or more of cocaine, even though
his total relevant conduct includes significantly more drugs. See 21 U.S.C. § 841(b), For
example, the mandatory minimum sentence for those persons who traffic in one hundred
kilograms or more of marijuana is five years. See 21 U.S.C. § 841(B)(vii).

Yet, in this case, Defendant's guideline sentence was dictated primarily by his repeated
and poorly advised failure to take responsibility for his full criminal conduct, This Court
believes this behavior justified an appropriate emphasis on deterrence because Defendant's
repeated misstatements to the Court did not indicate that rehabilitation efforts would be effective.
All of the objective facts surrounding this case showed that Defendant was a significant and
unrepentant drug trafficker who merited a guideline sentence. Any other sentence would create
unwarranted sentencing disparitics among defendants whe traffic in similar quantities. Defen-
dant's alien status and lack of significant prior criminal] history were properly taken into
consideration by the imposition of a low-end guideline sentence.

CONCLUSION
For all the reasons indicated herein, this Court informs the Seventh Circuit Court of

Appeals that its original sentence of 121 months is the appropriate and reasonable sentence under

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After this general mandate, § 3553(a) lists seven factors for the court to consider “in determining

the particular sentence to be imposed.” In addition to the factors set forth at § 3553(a)(2) quoted

above, the court is to consider:

Q)

(3)
(4)

(5)

(6)

@)

the nature and circumstances of the offense and the history and character-
istics of the defendant;

the kinds of sentences available;

the kinds of sentences and the sentencing range established [under the
sentencing guidelines], subject to any amendments made to such guide-
lines by an act of Congress...;

any pertinent policy statement ... issued by the [United States] Sentencing
Commission ... subject to any amendments made to such policy statement

by an act of Congress,..:

the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and

the need to provide restitution to any victims of the offense.

Yet, within this statutory sentencing scheme the Sentencing Guidelines remain important

because they represent eighteen years’ worth of careful consideration of the proper sentence for

federal offenses as recently acknowledged by our Court of Appeals. See United States v.

Mykytiuk, No. 04-1196, F.3d _, (7th Cir. July 7, 2005). In Mykytiuk, the Court of Appeals

indicated that the Guidelines remain an essential tool in creating a fair and uniform sentencing

regime across the country and, therefore, acknowledged that a sentence properly calculated under

the Guidelines is entitled to a rebuttable presumption of reasonableness. Id.

In this case, the Court imposed a guideline sentence based on the nature of the offense

and Defendant’s failure to accept responsibility for the full scope of his criminal conduct. The

ease with which Defendant arranged the 4,7 kilogram cocaine transaction reflects that he was a

-4-


the advisory guideline system now in effect. The Clerk of the Court is directed to transmit this

order to the Seventh Circuit Court of Appeals.

ENTERED: WA —

Judge Ruben Castillo
United States District Court

DATED: July 25, 2005



—-- a . ys

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
) Appeal No. 03-3522
Plaintiff, ) {On limited remand)
)
v. )
)
NOE VASQUEZ, ) No. 01 CR 1094”
} Judge Ruben Castillo
Defendant. )
MEMORANDUM OPINION AND ORDER

On April 20, 2005, in appeal number 03-3522, the Seventh Circuit ordered a limited
remand to this court for proceedings to determine whether this court would have imposed a
different sentence in this case if required to re-sentence. This Court followed the procedure set
oul in United States v. Paladino, 40] F.3d 471 (7th Cir. 2005.) On May 3, 2005, this Court
requested briefing on this issuc from the parties. After careful evaluation of the parties’
submissions, the Sentencing Transcript and the pre-sentence report, this Court has decided to
hew to its original sentence for the reasons set forth herein.

RELEVANT FACTS

Qn December 11, 2001, narcotics trafficker Earl Berry identified Defendant as one of his
suppliers for cocaine, stating that Vasquez (whom he knew as “Hector”) had sold him cocaine
tive or six times in the past, each time in quantities of two to three kilograms, On the day
following Berry's arrest, December 12, 2001, Berry, while in federal custody, made a recorded

phone call to Defendant in which he ordered five kilograms of cocaine. Berry had described to

the agents how, when he had made prior purchases of multiple kilogram quantities of cocaine



from Defendant, he had picked it up at either Defendant’s house or a garage on the same block.
Defendant agreed ta provide Berry with the cocaine, and the same day, December 12, 2001, in
the company of FBI agents, Berry went to Defendant’s residence for the purpose of picking up
the cocaine. When Berry arrived, Defendant showed him into the garage, and agents arrested
Defendant, They asked him where the drugs were, and he pointed to garbage bags which
contained approximately seventy kilograms of marijuana. Pursuant to the execution of a search
warrant on the house where Defendant was residing, agents also recovered 4.7 kilograms of
cocaine from a non-working refrigerator in the basement area where the Defendant was staying.
Also recovered in the residence was a handgun loaded with a magazine clip, approximately
$13,000 in currency, and various drug paraphernalia.

Defendant was charged in a three count indictment. Count One charged a conspiracy to
possess with the intent to distribute cocaine and marijuana, Count Two charged possession with
intent to distribute cocaine; and Count Three charged possession with intent to distribute
marijuana. Pursuant to a written plea agreement, Defendant pled guilty to Count Three.

Sentencing

On September 17, 2003, this Court found that the offense level under the sentencing
guidelines was thirty-two and that no further adjustments were appropriate. Therefore, the
guidelines range was 121 to 151 months. This range was based on the Court's determination that
Defendant's relevant conduct included the cocaine charged in Count Two. Defendant, at the
sentencing hearing, claimed that he had only spoken to Earl Berry one time (Sentencing
‘Transcript, p. 17), and that he understood the transaction to be for the sale of marijuana, not

cocaine. This Court rejected this claim on various bases. (Sentencing Transcript, p. 10-12).

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Further, because Defendant refused to acknowledge responsibility for the cocaine, despite the
Court’s finding that the evidence of his possession of it had been proven not only by a preponder-
ance of the evidence, but beyond a reasonable doubt (Sentencing Transcript, p. 10), this Court
declined to credit Defendant with acceptance of responsibility. (Sentencing Transcript, p, 13). In
sentencing Defendant to 121 months, this Court advised Defendant: “..1 don’t think this was the
first time that you were involved in narcotics because someone doesn’t start with this level of
narcotics, either the marijuana or the cocaine, but I think this is the first time that you were
caught..,,” (Sentencing Transcript, p. 23).
ANALYSIS,

The sentencing of criminal defendants in the federal system is ultimately governed by 18
U.S.C. § 3553(a). United States v. Booker, 125 S.Ct. 738 (2005). That subsection first requires
that “[tJhe court shall impose a sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in” 18 U.S.C. § 3553(a)(2), which refers to “the need for the sentence
imposed to:

(A) reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense;

(B) afford adequate deterrence to criminal conduct;
(C) protect the public from further crimes of the defendant; and
(D) _ provide the defendant with needed education or vocational training,

medical care, or other correctional treatment in the most effective man-
ner.”