Another example of uncharged sentencing enhancements

Earlier today I discussed here the remarkable Eighth Circuit decision in Rashaw, in which the defendant, convicted at trial of illegal possession of firearms, received 30 years for uncharged murders.  A Florida case involving alien smuggling that is not quite as extreme, but raises similar issues, is making headlines today.  As detailed in stories here and here, a "federal judge on Monday imposed the harshest possible sentence on two men whose effort to smuggle Cubans into the United States last year ended in the drowning of a young boy."

This Miami Herald account of the sentencing details the import and impact of uncharged crimes in this case:

A lawyer for both Alexander Gil Rodriguez, 25, and Luis Manuel Taboada-Cabrera, 28, whose relatives sobbed outside the courtroom, said they will appeal the judge's sentences [of the maximum 10 years] for their alien-smuggling convictions.  Attorney Steven Amster said the two Miami men, who were not charged or convicted of causing the death of 6-year-old Julian Villasuso, still faced up to the maximum prison term because his drowning was a factor in the judge's sentencing under advisory guidelines. ''They understand their actions led to this death,'' Amster said, acknowledging the two men sped off in their go-fast boat when the U.S. Coast Guard tried to stop them. "But their actions were not so egregious to go above what the sentencing guidelines say.''

The two men had reached plea deals in November, expecting to receive lighter sentences.  They pleaded guilty to a conspiracy to smuggle 29 Cubans in a 33-foot speedboat that overturned and claimed the life of the boy, who got trapped beneath the capsized vessel.  But Assistant U.S. Attorney Dana Washington said he didn't have enough evidence to charge them with the death of Julian Villasuso.

The boy's death was factored into the sentencing guidelines, doubling the initially proposed prison term from three to six years. But Moore, who as a federal judge has the authority to go higher than those advisory guidelines, didn't believe that penalty was sufficient.