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January 26, 2007

The furor over border agents' long sentences

As first noted here, there is a lively debate over the sentences for two border patrol agents who each got more than a decade in prison for the shooting of a suspected Mexican drug dealer in Texas.  This Washington Times article spotlights the case and the growing political furor:

The prosecutor who won lengthy prison sentences for two U.S. Border Patrol agents for shooting a suspected drug smuggler fleeing back into Mexico acknowledged this week the "punishment was high" but said the sentences were mandated by Congress.  "I agree the punishment was high, but the sentencing guidelines were set by Congress and the judge acted in accordance with the law," U.S. Attorney Johnny Sutton told The Washington Times in a telephone interview.

Mr. Sutton said 11- and 12-year sentences, respectively, for Agents Ignacio Ramos and Jose Alonso Compean fell within the federal sentencing guidelines.... Ramos, 37, and Compean, 28, were convicted of causing serious bodily injury, assault with a deadly weapon, discharge of a firearm in relation to a crime of violence and a civil rights violation.  A jury convicted the agents in March after a two-week trial of shooting Osbaldo Aldrete-Davila in the buttocks as he ran from a marijuana-laden van back into Mexico.  Sentencing guidelines established by Congress say a person convicted of committing a crime of violence and using a firearm during that crime faces a 10-year mandatory minimum, in addition to what other charges are involved.

The convictions and sentences have drawn widespread criticism from several sources, including some members of Congress.  Rep. Dana Rohrabacher, California Republican, called it "the worst betrayal of American defenders I have ever seen."  Rep. Duncan Hunter, California Republican, introduced legislation calling for a congressional pardon.  Rep. Joe Wilson, South Carolina Republican, described the case as a "grotesque misdirection of our judicial system."

Petitions with more than 260,000 signatures have been presented to President Bush calling for a pardon.  Seventy members of Congress are co-sponsors of Mr. Hunter's bill.  National Border Patrol Council President T.J. Bonner, whose organization represents all 10,000 of the agency's non-supervisory personnel, said Mr. Sutton was not required to bring the mandated firearms charge, saying "it is quite doubtful Congress ever intended that this provision be used against law-enforcement officers who carry firearms in the performance of their normal duties." 

Rep. Walter B. Jones, North Carolina Republican, said in a letter to Attorney General Alberto R. Gonzales -- co-signed by Mr. Rohrabacher and Republican Reps. Ernest Istook of Oklahoma, Gary G. Miller and Ed Royce of California, and Tom Tancredo of Colorado -- the 10-year mandatory gun charges should have been dropped. "This statute has historically been used in violent crime and drug trafficking cases," Mr. Jones said in the letter. "It has also been applied to law enforcement when necessary, however, based on past applications ... it appears that its application in the present case is unwarranted." 

In addition to being an interesting case on its substantive merits, this case would seem to present the perfect opportunity for the US Sentencing Commission and groups like FAMM to engineer   bipartisan legislation to minimize the unfairness of mandatory minimum sentencing provisions.

Instead of legislation calling for a pardon (which arguably is unconstitutional), why isn't this case being used as the focal point for devloping broader safety-valve exceptions to the application of the federal mandatory minimum sentence applied here (which could be made retroactive in various ways)?

January 26, 2007 at 07:43 AM | Permalink

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One point that seems to be overlooked in all the hue and cry over this sentence is that these men were found guilty by a jury of committing a crime. This is the right that we have all been lauding since Blakely came out. I feel certain the agents' defense counsel argued that they were acting within the scope of their jobs, but the jury apparently rejected that argument. Since they were found guilty, they face sentencing just like anyone else in federal court. Despite the use of the phrase by some conservatives, there is no such thing as "criminals' rights." They are the rights of all of us, not just the guilty. And you can't water down one without affecting the other. You don't like the impact of the 924(c) mandatory consecutive sentence? You think the Guidelines are too harsh? As a defense attorney practicing in federal court I agree with you. But it is just as wrong for most of the individuals sentenced in federal court, not just law enforcement agents-defendants. Mandatory minimum sentences (like 924(c)) have skewed sentencing for the last 20 years, but Congress has not shown the will (despite repeated lobbying by FAMM and others) to do away with them. With the advent of the Guidelines it became more clear that mandatory minimums had an adverse affect on the fairness of sentences, but not only are they still around, Congress keeps adding them. (The cause du jour being child sex cases.) This case highlights not only the problem with mandatory minimums, but the problem with the continuing deference to the Guidelines, even post-Booker, by many federal judges, and especially by the Department of Justice which has directed its AUSA's to ignore the Supreme Court's decision in Booker and only support within-Guidelines sentences. Justice? Yes, but justice for all.

Posted by: Sumter L. Camp | Jan 26, 2007 10:13:54 AM

If only there was this much indignity when a drug offender gets a million years or a GA kid gets decades. Let the murderous, trigger-happy thugs rot.

Posted by: A | Jan 26, 2007 10:29:29 AM

Let me be first to say it.
They did the crime. The jury so found.
Now they do the time.

If you disagree you are soft on crime. If you think the sentences are too harsh, then you will need to have a serious discussion about lowering sentences for people that didn’t happen to work for the government, too.

Posted by: S.cotus | Jan 26, 2007 11:25:11 AM

The legislators quoted in the article and the co-sponsors of Mr. Hunters' bill are upset about a sentence within the Guideline range. Would it be too late for all of them to file an amicus brief in Rita/Claiborne stating that Federal judges need wide discretion to not follow the Guidelines? (That question is sarcastically posed.) More importantly, they don't really need to file a brief; they could legislate the needed sentencing changes and correc the sentencing injustice that ALL defendants suffer.

But, in reality, I could just see the legislative correction now:

Guideline Manual Chapter Three, Part F-Defendant's Profession:

"3.F1.1 Law Enforcement
(a) If the defendant is a member of law enforcement, reduce by 3 points.
(b) If the defendant is a member of federal law enforcement or border patrol, reduce by 4 points.
(c) If this section applies and the defendant commits the crime while on duty and the judge finds by a perponderence of the evidence (and contrary to the jury verdict) that such agents really were acting within the scope of their duty, reduce by 5 points."

"3.F1.2 Other Professions Congress likes:
(a) If the defendant is a member of the following professions, the judge shall have wide discretion to vary downard, even after considering the adjustments in 3F1.1:
(1) Member of Congress
(2) Border Patrol Agent
(3) Law enforcement
(4) Etc..."

Posted by: Anon | Jan 26, 2007 11:37:10 AM

My son is Ignacio Ramos, Former Border Patrol Agent. Unless you have walked in his shoes in that 15 second moment, I feel that you would have a different perspective, unless you have been in that same exact situation. Unless you were at the 2-3 week trial and heard the testimony that was allowed to be given by and at Judge Cardone's mercy, you would have heard the lies, speculations and the drama that the US attorney brought into the case. And the last item is the transcript. We have not been able to obtain the transcript from the Court house in El Paso Texas. Many questions are up in the air by the US Attorney, but they have transformed this case into a card game and/or chess game. But most important, they have allowed an illegal drug smuggler's word over two good men figting and protecting you and me.

Posted by: Virginia Orwig | Jan 26, 2007 12:06:16 PM

Ms. Orwig, as far as the sentence is concerned, I think what happened to your son is an injustice. I do not know what type of injustices occured at your trial, but I suspect they did occur (as they do in most trials). Your post above show the problems in our criminal justice system, and I hope justice will one day be realized in our courts. But your post above also sounds like the statements of the mother of every other convicted defendant I have ever spoken with, each of whom I deeply sympathize with.

The problem, as I see it, is that the Congressmen are only upset in this case because it was a border patrol agent. Yet this outrageous sentence - and whatever other trial errors - occur all the time, all over this country, and no Congressman ever speaks up. That's what I think most of the previous posts are pontificating about, and absolutely no harm/disrespect to you or your son was meant in my previous post here.

Posted by: Anon | Jan 26, 2007 12:24:57 PM

Let me take a guess - they offered a much lower sentence, they turned it down and the gov't brought the 924(c) charge. Defense attorneys were banking on a good ol'Texas jury to set them free - bad defense advice, or lack of client control obviously.

924(c) is a necessary charge - but I have to agree that this was not the right case to bring it. But if a defendant is going to force a trial, the Gov't doesn't have to sit on its hands and not bring all the tools to work with.

I think these guys should be found guilty - but 924(c)isn't appropriate - they would have gotten 1-2 years if not for the CS time.

Posted by: Deuce | Jan 26, 2007 9:13:27 PM

I agree that the problem is with Texas juries, Deuce. RE bad advice: So how do you get an acquittal if you don't try? I'm a little sypathetic over the sentence, until I think about the guy they shot in the back. A Texas jury knows about back shootings all too well, I'm afraid. It is well established that an attempt to escape by an arrestee is not grounds, if memory serves on qualified immunity, to use deadly force.

Posted by: Mr. Habeas | Jan 27, 2007 6:06:50 AM

How come prosecutors can justify their actions with the old "I had no choice, the law is the law and I was just enforcing it" crap when such logic is laughed at when it comes from the henchmen of brutal dictators? As long as there is prosecutorial discretion, they should be held responsible for all of the convictions and sentences which they secure.

Posted by: BruceM | Jan 28, 2007 2:04:27 AM

The prosecution fought Compean's and Ramos's Motions for downward departure and variance. Under the guidelines, could the judge have lowered the sentence for the count regarding discharge of a gun in the commission of a crime of violence? Is that count qualified for a downward departure?

Posted by: Jerri | Feb 4, 2007 1:21:16 PM

If you just follow this case it is a gross miscarriage of justice. For one the prosecutor allowed the cartel drug dealer to take the stand and lie by telling everyone he had never done this before and was trying to help his sick sister. As and officer of the court it is illegal to allow a witness to knowingly lie. This dirt bag brought in another load of drugs before the trial started so they knew he was a cartel runner not a mule as they made him out to be. Sutton said on tv that they (the officers) had made statements that 1: they were out to shoot Mexicans 2:they never felt in danger 3: that he was trying to surrender 4: that these were dirty cops. (note that one of the officers was up for officer of the year) These same statements were made to congressman and when congress put DOJ Skinner under oath he had to admit that they were all lies (although he called them misstatements). If they would go to those lengths to lie about this how can you believe anything that they said in this case.

Posted by: Ray Hathaway | Apr 24, 2007 10:59:42 AM

I think the focus is misdirected. Congress should amend the law to allow law enforcement to shoot a fleeing felon in the back when they are headed for the border. If, as someone above suggested, the prosecutor made Nifong statements to the press then he should be disbarred.

Posted by: M. P. Bastian | Jul 18, 2007 9:42:57 AM

My overwhelming concern with this case is not that the patol agents covered up a shooting; my concern is that the jury was not aware of the imposition of 924(c) which added 10 years to the sentences.

I am disappointed that George Bush does not commute the sentences. But then George Bush has been a great disappointment regarding illegal immigration anyway. He can not vacate the office of President soon enough for me.

I hope the hearings in the Senate committee chaired by Sen. Feinstein with panal members Sen Cornyn and Session will discover a way to reverse this extreme and unjust sentence.

Posted by: PerryP | Jul 21, 2007 12:09:31 AM

Why do people think that when a person becomes a law enforcement or border patrol officer they suddenly become saintly, perfect, and sinless people. I could fill volumes with stories of cops committing the most horrible crimes. These people are the same kids you went to grade school with. They were not raised in some angel training school. They probably were the bullies and "bad seeds" you hated in school. I find that cops and such are in reality the weakest and most ego challenged of our society. Its why they became cops. They try to compensate for their feelings of inadequacy. Anyone that wears a badge should get a triple sentence whan they commit a crime and ten fold if the crime is committed while on duty. Cops should get stiffer sentences. These clowns are convicted felons and do not deserve any special treatment. I wish we could put more bad cops in prison.

Posted by: Kerri | Aug 7, 2008 5:27:47 AM

I'm so glad their sentences were finaly commuted ant that they were pardoned.

Posted by: health leads | Mar 10, 2009 5:01:07 PM

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