NARCOTICS SMUGGLING HIGHLIGHTED IN THE EL CHAPO TRIAL IN FEDERAL COURT IN NEW YORK

The federal trial in New York of reputed Mexican drug kingpin Joaquin Guzman Lorea, best known in the public eye as El Chapo, has, for many, brought focus on what is new and upsetting information about the efficacy of border searches and the proposed border wall. Testimony about the method and manner in which narcotics were smuggled into the United States has upset major public information sources from CNN to Fox News, and as well to our president Donald Trump.

The persistent and repeated testimony of drug smugglers has provided examples of how massive amounts of narcotics are brought into the United States across from Mexico without difficulty. It repeatedly shows that a wall would have no deterrent effect for professional and skilled narcotics traffickers. They move their drugs through the border protected areas through inspections under the very watchful eye of border patrol agents. It was in cooking oil tractor-trailers, it was in bales of flowers flown into Kennedy Airport, it was brought in as presidential emblems made in Mexico City for the inauguration. It was in plastic bananas that looked like real bananas, it may have fooled border agents it may have fooled inspectors but it did not fool trained monkeys.

If there’s a double meaning there, and there is, they made a monkey out of our inspection services. It made into the punchline of a joke  what is commonly thought of as the porous border between the United States and Mexico that facilitates narcotics smuggling. The testimony revealed that operatives for the cartel created front companies. Those companies exported cooking oil from Mexico into the United States. The cooking oil trucks were floating in cocaine. Tens of millions of dollars in transactions from drug cartel operatives went through the most worldwide international banking institutions in the planet. The ongoing federal criminal trial is taking place in Brooklyn, NY in the federal courthouse in the Eastern District of New York. Channel 10 news has regular coverage, and tourists flock to the federal courthouse for a glimpse of a trial that is both enlightening and salacious. The trial focuses and highlights the sheer magnitude of narcotics trafficking into the United States.  Seizures of narcotics on the Mexican border totaled over one and one half-million pounds. Seizures of marijuana alone at the US borders total 8.2 million pounds. 32,600 pounds of cocaine, 34,000 ounces of heroin, and 17,600 pounds of methamphetamine. Mexico is the US largest supplier of methamphetamine and marijuana. But as highlighted in the trial, the methods and manner of crossing the border would not be affected by a physical barrier. The cost in human suffering is by most standards immeasurable.

But if measurement be had, the Congressional research service tells us that in 2016 there were an estimated 948,000 individuals, 0.4% of the population 12 years and older uses heroin in United States.

Federal sentencing was upset when the Supreme Court, in 2005, ruled that the Sentencing Guidelines are no longer mandatory but merely advisory.  What was then thought a landmark decision (taking sentencing from the heartland of the Guidelines back to judicial discretion) has been somewhat  illusory.  “Illusory”…yes as now a federal judge doing a sentencing of a federal criminal defendant now can sentence a non-guidelines sentence, if the judge desires.

Excerpt of the introduction of Federal Guidelines

This brief post is an introduction to the path from a sentence that is set by the Sentencing Guidelines Commission to a non-guidelines variance sentence.

First the court must determine what is the correct guidelines range, let’s use a level 21 Guidelines of 37 to 46 months and move forward.  First you must give a legal reason for the judge to pronounce a sentence that is non-guidelines.  There is a wealth of caselaw to use here.  In essence you are providing the judge, in a Defendant’s Sentencing Memorandum, the caselaw which supports a judicial finding that a non-guidelines sentence is appropriate.  All the arguments arise from federal statute  section 3553 which you find as 18 U.S.C. 3553(a)(1)-(7).  Read it.  You will see and you must be familiar with the four basics of sentencing policy created by the Congress in the statute  What follows is the basics, heartland and the entire world of sentencing: the 3553’s.  Read is slowly: The court must pronounce a sentence that is “sufficient but not greater than necessary” to achieve the goals of 3553. It must reflect the seriousness of the offense and at the same time promote respect for law.  The federal criminal sentence must also  provide a just, or appropriate punishment for the offense.  The sentence must provide adequate deterrence to any criminal conduct by others (future federal criminal defendants).

Moving on, it must protect the public from any further crimes by the defendant before the Court and the sentence should provide the defendant with some of the needed educational and or vocational training while in custody.  The federal criminal court judge must balance the purposes, nature and circumstances of the offense with the history and characteristics of the Defendant.  Then, with a look over the judicial shoulder and a view into the future, the judge must fashion a sentence that avoids unwarranted differences or disparities of sentence for like-situated defendants and provide for restitution so the victim is compensated.

Your federal criminal attorney will argue some of the leading cases such as Gall vs U.S. 552 US and a host of other cases.  What appears like a confusing mess is very simple after you see the path for federal sentencing.  Step one: convince the judge to give a non-guidelines sentence by demonstrating that the guidelines are either out of date or have been eclipsed by new law, new studies and new sentencing laws.  Just this past year the Congress passed and President Trump signed a new sentencing statute that puts most of the past twenty years of caselaw and sentences in a new light.

If you, or a loved one or friend, is facing a federal sentencing then take the time to read over 18 U.S.C. 3553(a)(1)-(7) and sit with an experienced federal criminal defense attorney who knows your district court and it’s sentencing attitude.  Good luck!