John T. Floyd Law Firm
Board Certified Houston Criminal Lawyer
“Serious Criminal Defense Throughout Texas”
Board Certified Criminal Law Specialist
Experienced Criminal Trial Lawyer
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail [email protected]
Top Lawyers: Criminal Defense - 2008-2012 HTexas
Comments on Criminal Issues
March 11, 2011
DRUG CHECKPOINTS AND THEIR AFTERMATH
Drug Mules/Smugglers Beware: Permanent Border Patrol Checkpoints in Texas Seize Tons of Drugs, Marijuana, Illustrate Inhumanity of Drug Laws
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
There are many problems with mandatory minimum sentencing as we have discussed in previous blogs, but the following is just one real life example. He is a Mexican national, a legal resident in this country. He is a long haul truck driver. He has a family to support. He is approached by people who want him to haul a legal shipment of produce. He is told contraband will be concealed in the produce. But he is not told what the contraband is. He is paid one thousand dollars to make the delivery. It will help pay the bills, particularly the medical bills for one chronically ill child.
But things go awry. He is stopped at a drug checkpoint near the Texas border. A drug-sniffing dog alerts on the trailer of his rig. Border patrol officers have probable cause to search the trailer, but the driver eliminates the need for a warrant with consent to search. The search reveals over 2000 kilograms of marijuana. The driver is arrested. He is eventually indicted 21 U.S.C. § 841(a)(1) with possession with intent to distribute a controlled substance. Under subsection (b)(1)(A) of this statute, the driver faces a mandatory minimum of ten years imprisonment and a maximum of life imprisonment in addition to a possible fine of up to $4 million. With no “priors” or criminal history, the U.S. Sentencing Guidelines will recommend a minimum sentence of approximately 13 years (156 months) in such a case, and probably much worse.
Sentencing in these kinds of drug cases can be severe as evidenced last month when United States District Judge Micaela Alvarez, sitting in Laredo, sentenced eight members of a drug trafficking organization to 180 to 360 months without parole. The drug traffickers, operating out of McAllen, used tractor trailers to ship marijuana and cocaine to Georgia, Florida and North Carolina. The organization hired commercial truck drivers to transport the drugs concealed in legitimate merchandise who, on their return runs, transported large amounts of cash received from the drug sales. U.S. Attorney Jose Angel Moreno said the drug money was distributed throughout the Rio Grande Valley. This particular drug bust alone resulted in the seizure of 200 kilograms of cocaine, 2000 kilograms of marijuana, and the seizure/forfeiture of nearly $5 million.
U.S. Attorney Moreno said six of the members were truck drivers who received sentences ranging from 180 months to 350 months depending upon U.S. Sentencing Guidelines calculations. Judge Alvarez added that each of the eight defendants would have to serve periods ranging from 3 to 10 years under “supervised release” upon completion of their prison terms. This means that at a minimum the least culpable of these defendants will have to spend nearly 20 years while the most culpable will spend nearly 40 years under some form of federal supervision. With no parole, federal inmates serve approximately 87 percent of their sentence in actual custody.
At least a couple of the six “truck drivers” in this case were nonviolent, criminal history-free defendants based on the lower end of the sentences imposed on them. It doesn’t take much for legitimate truck drivers, or private vehicle carriers, to get ensnared in these large drug smuggling operations. For example, take the case of D. Ramirez, who was a 30-year teacher at Rio Grande City’s General Ricardo Sanchez Elementary where he had worked for six years before his arrest at the school in January 2010. The former fifth grade teacher pled guilty last April under Sec. 841 for conspiracy to possess and intent to distribute tons of marijuana from the Mexican border to Houston. Ramirez, nicknamed the “Devil” in his plea agreement, admitted to recruiting truck drivers and scouts while supervising the transportation of 44 tons of marijuana from the Rio Grande Valley to Houston, the Houston Chronicle reported. The newspaper reported that in 2006 Ramirez supervised the shipment of more than 10 tons of marijuana seized by the Houston police in a tractor-trailer and another 4 tons of marijuana seized by Texas state troopers from a tanker truck near Hebbronville in 2007. Ramirez faced a mandatory minimum of 20 years because he had a prior conviction in 1996 for cocaine possession.
Without unusual leniency on the part of a federal judge or prosecutor, there are only two ways convicted drug traffickers like Ramirez and the eight McAllen defendants can receive a sentence less than the statutory mandatory minimum or the minimum the Guidelines would recommend if they are found guilty. They can provide substantial assistance to the Government as provided under 18 U.S.C. § 3553(e) and/or request that the court sentence them under the “safety valve” provisions of § 3553(f).
In 2008, the U.S. Sentencing Commission reviewed documentation for 76,478 cases, of which 21,023 (28.6%) involved offenses carrying a mandatory minimum sentence. Defendants facing mandatory minimum sentences were twice as likely to go to trial rather than accept a plea agreement [6.2% to 3.7%] because they have much less incentive to plead guilty.
§ 3553(e) authorizes the district court, upon motion by the Government, to impose “a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” § 3553(f) which was born out of the Violent Crime Control and Law Enforcement Act of 1994 on the premise that the “integrity and effectiveness of controlled substance mandatory minimums could in fact be strengthened if a limited ‘safety valve’ from operation of these penalties was created and made applicable to the least culpable offenders.” A safety valve defendant must satisfy the following five criteria to receive the statute’s benefit:
- The defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
- The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
- The offense did not result in death or serious bodily injury to any person;
- The defendant was not an organizer, leader, manager or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
- Not later than the time of the sentencing hearing, the defendant has truthfully provided the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this agreement.
Of the 21,023 offenders convicted under mandatory minimum statutes in 2008, 3,831 of them (19.5%) were eligible for downward departure from the mandatory minimum because the Government filed the requisite § 3553(e) motion in those cases. Of the 3,831 eligible offenders, 2,714 of them were actually sentenced below the statutory minimum.
That same year a total of 25,337 drug offenders were sentenced, of which 16,198 were convicted under statutes that carried a mandatory minimum. Of this latter group, 4,112 (25.4%) were eligible to be sentenced under the “safety valve” provisions, of which 3,803 of them were actually sentenced below the statutory minimum. The remaining 309 offenders were sentenced at or above the mandatory minimum.
Altogether, 7,818 (48.3%) of the 16,198 drug offenders were sentenced to terms below the mandatory minimums under either or both § 3553(e) and § 3553(f).
Many of these defendants were convicted in federal courts in Texas because the state shares a 1,254 mile border with Mexico that travels along the Rio Grande River. Government figures show that in 2002 Texas ranked first in the amount of marijuana and cocaine seized by federal officers. The state has become what the Justice Department called a “national distribution center” with drug traffickers using tractor trailers and private vehicles as the means for smuggling drugs into and throughout the country. The state has Interstates 10, 20, 25, 30 and 35, in addition to Highways 59, 77, 83 and 281, which are used as common drug smuggling routes.
The San Antonio Express in 2009 reported that drug seizures along the U.S./Mexican border had “skyrocketed.” During a one 7-day period in January 2009 in the Rio Grande Valley sector alone, U.S. Border Patrol agents seized 16 tons of marijuana, 9000 pounds of which was seized at the Falfurrias checkpoint on U.S. 281. Altogether, Border Patrol agents seized more than 70 tons of marijuana during December ’08 and January ’09 in just that one sector, more than triple the amount seized during the same two month period the year before. To appreciate the significance of this amount of marijuana seized in this one Texas sector, a total of 1,626 metric tons of all illegal drugs were seized in the United States between January through November of 2009.
The escalating marijuana seizures should not be surprising. In 2009 some 19 million Americans were current users of marijuana. That same year the National Survey on Drug Use and Health reported increases in marijuana use by young adults 18 to 25 and that the drug potency had doubled since 2008. It is little wonder that San Antonio, Texas’ second largest city, has become a major “transshipment center” for illegal drugs and a “significant consumer market for these drugs.”
And the seizures continue – during a three week period this past December, Border Patrol agents in the Rio Grande Valley sector alone seized more than 4 tons marijuana. The demand, and ensuing supply, for drugs by Americans will ensure that more Texas drug defendants will face Sec. 841 indictments and subsequent trials. Many of these defendants will enter into plea agreements, but an increasing number are electing to face trial because, with the mandatory minimums, there are no real incentives to plead guilty. Criminal defense attorneys must become intimately familiar with § 3553(e) and § 3553(f) at the sentencing phase. These statutory provisions offer the only hope for a sentence at or below the statutory minimum.
And in those cases in which the defendant elects to face trial, criminal defense attorneys must be aware that the federal appeals courts have “consistently held in cases of this genre that, even in situations where the defendant knew that he was engaged in illicit activity, and knew that” some form of contraband “was involved in the scheme in which he was participating, the government is obliged to prove beyond a reasonable doubt that the defendant had knowledge of the particular illegal objective contemplated by the conspiracy.”
In the context of drugs found in trucks, the Third Circuit Court of Appeals in United States v. Cooper reversed a conspiracy conviction that involved a shipment of 1100 pounds of marijuana in a Ryder truck from Boulder, Colorado to Pottsville, Pennsylvania. The appeals court assumed that the Government had established there was a conspiracy between Cooper and two other men who had rented a Ryder truck used for the trip from Colorado to Pennsylvania. The appeals court also found that there was sufficient evidence that Cooper rode in the truck with one of the other men from Colorado to Pennsylvania. But the appeals court held “there [was] no evidence that [Cooper] knew what was in the padlocked rear compartment and no evidence that illegal plans were discussed during telephone calls to [Cooper’s] home and telephone.” Id. The court added: “In the absence of some evidence that he knew the contents of the locked compartment or some evidence that he engaged in telephone or other communication of a conspiratorial nature, no factfinder could find beyond a reasonable doubt that a Cooper as a member of the Allen-Meador conspiracy.”
To support a conviction for possession with intent to distribute marijuana, or other drugs, under Sec. 841, the Government must prove beyond a reasonable doubt: 1) that defendant knowingly possessed the marijuana, and 2) that defendant possessed the marijuana with the specific intent to distribute it. Possession may be found if the defendant knowingly had ownership, dominion or control over the marijuana and the premises where it is found. However, “when the [marijuana] may be attributed to more than one individual, constructive possession requires some nexus, link, or some connection between the defendant and the [marijuana].”
The following factors, which the Government must prove, are considered a nexus or affirmative links between driver and tractor trailer in which drugs are found:
- Defendant is sole occupant in the truck
- His mode of operation and downtime may infer drug trafficking
- Information stored on his computer in truck may incriminate him
- Ties between him and material in which drugs are packaged, and
- The value of the drugs are such that traffickers would not ship them without driver’s knowledge
Factors supporting a defendant’s claim that he did not know drugs were stored in the tractor trailer include:
- Defendant does not own the tractor trailer
- Defendant operating tractor trailer pursuant to a “hook and drop” arrangement
- The tractor trailer was locked and sealed by shipper
The Eighth Circuit held in United States v. Sanchez that because a defendant had complete and sole control over a tractor trailer in which marijuana was concealed and the defendant offered inconsistent testimony about the marijuana, a jury would infer that he knowingly possessed the marijuana discovered in the truck. The appeals court added that proof of “constructive possession” satisfied the element of knowing possession under Sec. 841. Constructive possession entails ownership, dominion and control of contraband—and the Eighth Circuit in United States v. Pace held that if a defendant does not have sole control over a vehicle in which drugs are found, he does not have constructive possession absent additional evidence that he did.
Thus the Government must prove, in order to establish constructive possession of the marijuana that the defendant had sole control over the tractor trailer— and if it cannot establish sole control, then it must establish knowledge of the marijuana through other evidence.
United States Border Patrol Permanent Interior Checkpoints in Texas
- Sierra Blanca - located 5 miles west of Sierra Blanca on Interstate 10. --31°11′29.84″N 105°25′46.83″W / 31.1916222°N 105.429675°W
- Eagle Pass - located 11 miles east of Eagle Pass on U.S. Route 57. --28°47′50.45″N 100°22′5.34″W / 28.7973472°N 100.36815°W
- Eagle Pass/Carrizo Springs - located 30 miles West Southwest of Eagle Pass, Texas on U.S. Route 277.
- Bracketville/Uvalde - located 60 miles east of Del Rio, Texas on Highway 90.
- Laredo - New I-35 - located 30 miles north of Laredo on Interstate 35. --27°54′17.85″N 99°23′37.59″W / 27.9049583°N 99.393775°W
- Freer - located 16 miles west of Freer on U.S. Route 59. --27°46′26.79″N 98°50′44.09″W / 27.7741083°N 98.8455806°W
- Oilton - located 6 miles east of Oilton on Highway 359. --27°26′35.72″N 98°53′14.75″W / 27.4432556°N 98.8874306°W
- Falfurias - located 14 miles south of Falfurrias on U.S. Highway 281. --27°1′29.71″N 98°8′18.39″W / 27.0249194°N 98.1384417°W
- Sarita - located 14 miles south of Sarita on U.S. Route 77. --27°0′58″N 97°47′39″W / 27.01611°N 97.79417°W
- Hebbronville - located 1 mile south of Hebbronville on TX 16 S
Source: Wikipedia (03/08/11)
By: Board Certified Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair.
Drug Defense Lawyers in Houston, Beaumont, San Antonio, Corpus Christi, Laredo, Brownsville, Del Rio, Victoria, Texas