Sunday, August 15, 1999

BENCHMARKS


'I did it' won't always merit lesser sentence

BY BEN KAUFMAN
The Cincinnati Enquirer

        Federal sentencing guidelines allow judges to reduce sentences for defendants who accept responsibility for their crimes.

        Two defendants recently tested judicial credulity and lost.

        Christopher Walker expected a break after he admitted a conspiracy to distribute cocaine in Grand Rapids, Mich.

        While he was free on bond awaiting sentencing, his urine tested positive for cocaine and Judge Richard A. Enslen concluded that Mr. Walker's explanation was a lie.

        Not only did the judge refuse to reduce Mr. Walker's sentence for acceptance of responsibility, he increased it, saying his lie was obstruction of justice.

        In his appeal, Mr. Walker sought credit for taking responsibility for his crime and said his sentence should not be extended for “illegal conduct in general.”

        Wrong, responded Judges Cornelia G. Kennedy, Leroy J. Contie Jr. and James L. Ryan. “Walker's cocaine use constituted a continuation of criminal activity that precluded an acceptance of responsibility.”

        In Memphis, Eddie D. Jeter hit a similar snag although his case was more complex, involving state and federal crimes and splitting the court.

        Tennessee authorities arrested Mr. Jeter on state loan fraud charges in June 1996. A federal grand jury indicted him on similar charges four months later.

        During those intervening months, Mr. Jeter commited new loan frauds.

        Mr. Jeter eventually admitted federal charges but Judge Jon Phipps McCalla refused to reduce his sentence for accepting responsibility and cooperating with prosecutors.

        Additional frauds after Mr. Jeter's state arrest — but before his federal indictment — negated any acceptance of responsibility, Judge McCalla said.

        Appellate Judges Damon Keith and Ronald Lee Gilman said neither the law nor precedents pointed a clear path but federal sentencing guidelines allowed Judge McCalla to reject Mr. Jeter's acceptance of responsibility when actions contradicted his words.

        Judge Cornelia G. Kennedy dis sented, saying state crimes committed before Mr. Jeter's federal indictment cannot be used to deny him a reduced sentence on his federal guilty plea.

        Judge Kennedy said her colleagues gave sentencing judges undesirable and “unbridled discretion in determining the time period for acceptance of responsibility.”

        She said “any defendant who has a prior record of similar crimes would be at risk of having the district court deny a reduction for acceptance of responsibility, even if the defendant has pled guilty early in the proceedings and cooperated with the government throughout the federal investigation.”

        That would be bad for the courts, too, Judge Kennedy said. “Such an approach could deter defendants from pleading guilty and encourage them to take their cases to trial.”

        Finally, she said, “to extend the denial of acceptance of responsibility reduction to mere similar criminal conduct before the defendant has been called to account on the federal charges is to penalize the defendant for a criminal disposition, not because he has not accepted responsibility to the federally charged conduct.”

A smuggler's nightmare
        An inept drug smuggler ended up being convicted of exporting and importing the same cocaine and cash.

        In March 1996, Pedro E. Ozuna drove from Port Huron, Mich., to Sarnia, Ontario, with $9,500 stuffed in his rental car's windshield washer reservoir and bricks of cocaine hidden under a fender.

        That was exporting.

        Uncertain of Mr. Ozuna's citizenship, Canadian officials denied him entry and he drove back to the United States.

        That was importing.

        At the U.S. border, Mr. Ozuna showed a Florida driver's license with the name Ramady Sanchez and said he was a U.S. citizen, born in Puerto Rico, going to New York. Mr. Ozuna would not explain why he was coming from Canada.

        An initial search of his wallet and car yielded documents with his real name, $760 and a photo of Mr. Ozuna with a Nissan Sentra with Texas plates. That heightened inspectors' suspicions; they say the Sentra is popular with drug couriers because false compartments can be installed easily. A pat-down found a rejection slip by Canadian immigration in Mr. Ozuna's pocket plus a Texas rental agreement for the car in two names, Ramady Sanchez and Ramon Ramierez.

        Mr. Ozuna did not explain the names but said he was from the Dominican Republic and bought the driver's license.

        Inspectors reached his stepdaughter at a New York phone number provided by Mr. Ozuna. She gave them his real name and said he was a resident alien born in the Dominican Republic.

        That checked out with immigration records but inspectors remained unsure whether their man was Pedro E. Ozuna.

        Those uncertainties and contradictory stories prompted a closer search, which turned up the $9,500 and cocaine.

        Mr. Ozuna was sentenced to 63 months in prison for exporting and importing cocaine, importing and exporting the cash, and possession of cocaine with intent to distribute it.

        His appeal claimed prosecutors lacked evidence to connect him with the cash and drugs in the rental car and inspectors violated his rights during the interrogation by failing to read him the Miranda warning that he could remain silent and have a lawyer.

        Judges Richard Suhrheinrich, Eric L. Clay and James G. Carr said there was abundant evidence and he had no right to a Miranda warning because he was not in custody. Everyone faces the likelihood of similar, routine questions from immigration and customs agents and they are not considered in custody.

       



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