Download - Jose Morales sentencing hearing transcript-2

EXCEPTIONAL REPORTING SERVICES, INC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

McALLEN DIVISION

UNITED STATES OF AMERICA, ) CASE NO: M-08-CR-1242 ) Plaintiff, ) CRIMINAL )

vs. ) McAllen, Texas ) JOSE JOAQUIN MORALES, ) Monday, March 8, 2010 ) Defendant. ) (3:25 p.m. to 4:12 p.m.)

SENTENCING

BEFORE THE HONORABLE RANDY CRANE, UNITED STATES DISTRICT JUDGE

Appearances: See Next Page Court Recorder: Richard Cortez Transcribed by: Exceptional Reporting Services, Inc. 14493 S. Padre Island Drive Suite A-400 Corpus Christi, Texas 78418-5940 361 949-2988 Proceedings recorded by electronic sound recording; transcript produced by transcription service.

Case 7:08-cr-01242 Document 81 Filed in TXSD on 07/29/10 of 40

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APPEARANCES FOR: Plaintiff: CAROLYN FERKO, ESQ. Assistant United States Attorney 1701 W. Business Hwy. 83 Suite 600 McAllen, Texas 78501 Also present: Special Agent Garrett Huling Defendant: JOHN R. TEAKELL, ESQ. Milner & Finn 2828 N. Harwood Street, Suite 1950 Dallas, TX 75201 U.S. Probation: Karla Webb 1701 W. Business Hwy. 83 Suite 729 McAllen, Texas 78501



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McAllen, Texas; Monday, March 8, 2010; 3:25 p.m. 1

Call to Order 2

THE COURT: Okay, 08-1242, USA versus Jose Joaquin 3

Morales. 4

MS. FERKO: Government's present and ready, your 5

Honor. 6

MR. TEAKELL: John Teakell for Mr. Morales, present. 7

THE COURT: Okay. Mr. Morales there was a 8

Presentence Report prepared about you in your case as well. 9

Have you had the opportunity to review and discuss your 10

Presentence Report with your lawyer? 11

THE DEFENDANT: Yes, sir. 12

THE COURT: And did you have any questions about your 13

Presentence Report that your lawyer could not answer for you? 14

THE DEFENDANT: No, he answered. 15

THE COURT: Okay. And was everything factually 16

correct about you in the report? 17

THE DEFENDANT: I believe so, yes, sir. 18

THE COURT: Okay. Let's deal with some of the easier 19

issues first. 20

I assume the Government will move for the third 21

acceptance point? 22

MS. FERKO: Your Honor, I move for that point at this 23

time. 24

THE COURT: Okay. And so we had -- you had a lot of 25



4

issues about the career offender, but I guess they come -- they 1

come out only with respect to the criminal history issues with 2

the role enhancement he was given it comes out to 37 either 3

way. 4

MS. FERKO: That's correct, your Honor. 5

THE COURT: So -- and I did receive your request for 6

a downward departure based on assistance which didn't quite 7

rise to the level of the Government's filing a motion. And so 8

I need to kind of hear about what that was, which I don't know 9

anything about. 10

Anything you'd like to begin with, Mr. Teakell? 11

MR. TEAKELL: Yes, your Honor, if I may. I'd like to 12

just make a couple -- state a couple of things for the record 13

-- 14

THE COURT: Uh-huh. 15

MR. TEAKELL: -- if I can. 16

Well, here in the relatively recent past Mr. Morales 17

had spoken about trying to withdraw his plea, but it's my 18

understanding he's abandoned that -- 19


MR. TEAKELL: -- that issue or that thought. And 21

we're here to go forward. 22

In regard to the career offender status is it my 23

understanding that the Court has ruled or is ruling that the 24

career offender status does apply regarding -- 25



5

THE COURT: No, I'm just saying it's not something I 1

had to directly reach on the base Offense Level because he -- 2

it's academic, it comes out to the same and his Criminal 3

History points bring him to a V. The career offender is what 4

bumps him to the VI. So it does matter because it's one 5

criminal history level -- 6

MS. FERKO: Right. 7

THE COURT: -- difference. 8

MS. FERKO: And your Honor, I just want to be clear. 9

I believe the last time we were here when we were dealing with 10

the base Offense Level, the Defendant -- probation held him to 11

the statements he made in a proffer -- in his proffer, in which 12

he was under a proffer letter for. So as far as -- it's up to 13

the Court obviously what the Court wants to assess. The 14

Government was going to just state that we are -- in that he's 15

definitely accountable for the six kilos of the cocaine and I 16

think that drops him from a 32 or 34 to -- and I just want to 17

be clear -- I'm trying to pull up the amount. I think he goes 18

to a level from a 34 to a 32, but I don't want to misspeak. 19

THE COURT: Wasn't all this corroborated by Ms. Frey 20

and some -- 21

MS. FERKO: Yeah, your Honor, Ms. -- 22

THE COURT: -- somebody else, I mean, it's not like 23

-- 24

MS. FERKO: -- Tiffany Frey, it's actually Ms. Frey. 25



6

THE COURT: Frey. 1

MS. FERKO: She actually was independently approached 2

after Mr. Morales debriefed by ICE in Baltimore. She gave a 3

full statement. She did confess that -- to wearing a maternity 4

suit. I had advised Counsel regarding Ms. Frey that, you know, 5

if his client was going to proceed to trial we were going to 6

consider charges here in our district against her even though 7

it was what's normally looked at like as a dry conspiracy. We 8

didn't have her on this trip, but we did have a full statement 9

from out of Baltimore. Because, you know, based upon his plea 10

we never had it -- I never reached that decision, I never had 11

to make any decisions regarding Ms. Frey, but you know, she 12

still faces, you know, whatever in whatever jurisdiction 13

outside of Texas. 14

As far as -- and as I said, we were -- that was 15

corroborated, she couldn't exactly give us a number but her 16

statement did say there was a number of trips and there was 17

packages being delivered from Texas, mailing packages. She was 18

aware he was picking them up. 19


MS. FERKO: She believed it contained narcotics, but 21

how much she did not know. 22

THE COURT: These were going to her grandmother or 23

something? 24

MS. FERKO: I believe your Honor, the statement was 25



7

her grandmother and then a house that he was being -- that he 1

was rehabbing and then there was another -- like somehow or 2

another family member or a friend was somehow also involved. 3

(Pause) 4

THE COURT: Okay. So we have Ms. Frey corroborating 5

or we have her information on the 12 kilo load. We have the 6

actual 6 kilo loads, that's 18 kilos, maybe just under that. 7

So with just those two -- 8

MS. FERKO: Right. 9

THE COURT: -- again, require no corroboration by 10

this Defendant. 11

MS. FERKO: No, your Honor, it does not. And -- but 12

as I said he was under a proffer letter at the time. But since 13

your Honor, this -- while this is open court there was no one 14

else in this courtroom related to this case. I don't know if 15

Counsel wants to speak afar or he can speak here. 16

Initially he -- Mr. Morales was under a proffer 17

letter because he alleged that his attorney in Baltimore and 18

I'd asked this section -- 19

THE COURT: Right. 20

MS. FERKO: -- be sealed -- 21

THE COURT: That's all in the Presentence Report. 22

MS. FERKO: -- related to Mr. Needleman (phonetic) 23

and that's why we were concerned. We contacted Baltimore U.S. 24

Attorneys' Office, they sent an AUSA along with an ICE agent 25



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and like we spent four days debriefing Mr. Morales only just 1

basically to realize that he'd been lying almost the entire 2

time. 3

So -- 4

THE COURT: About this Mr. Needleman stuff? 5

MS. FERKO: Yes. 6

THE COURT: Okay. 7

MS. FERKO: Yes, I mean, there was no -- there was 8

not one -- not one corroborating fact to Mr. Morales's about 9

any statements of Stanley Needleman. We tried to make phone 10

calls, you know, if you just tell us when and where's the 11

money, where's the receipt, who heard you, what did you say to 12

somebody else and you know going back in time and it was just 13

not -- 14

THE COURT: And he was just playing games. 15

MS. FERKO: It was just playing games, your Honor. 16

So that was four days of that. And then afterwards we were 17

just ready to proceed. 18

THE COURT: Okay. Let's deal with the career 19

offender stuff because if there's an issue about quantity the 20

base Offense Level that I should have looked at -- it was less 21

than 34, then the career offender really is implicated here 22

based on the statements of Ms. Frey and the amounts actually 23

seized. I conclude that's in excess of 15 kilos of cocaine and 24

therefore the base Offense Level of 34 is applicable. 25



9

But let's, in the event that that is an erroneous 1

finding, or held to be erroneous, then the career offender 2

issue matters. I want to see if those documents were filed 3

under seal in support of that. 4

MS. FERKO: I believe I did file everything under 5

seal, your Honor, related to those documents. 6

The Government did file an exhibit. I provided the 7

Court with a courtesy copy which is about an inch thick, killed 8

a lot of trees doing it. 9


MS. FERKO: But I did want to make sure the Court 11

could actually look at the documents and see everything. There 12

were some issues -- sometimes the scanning is a little blurry 13

on the PDF so I just wanted to be clear the Court had ample 14

time to look at the documents. 15

THE COURT: Yes, it was about that thick of 16

documents. I assume you got the same -- 17

MR. TEAKELL: I did, your Honor. 18

THE COURT: -- thing, Mr. Teakell. 19

MR. TEAKELL: And I made a response to that. 20


(Pause) 22

THE COURT: And what happened to the co-conspirator, 23

the gentleman who was also flying down here doing some of this 24

stuff? 25



10

MS. FERKO: Your Honor, Mr. Malinowski had -- both 1

Defendants were actually stopped by DEA in the airport until it 2

was ascertained how much money they roughly had on them. Mr. 3

Morales was not searched, Mr. Malinowski was, so -- 4

THE COURT: He had 80,000 on him, I think, or 5

something. 6

MS. FERKO: That's correct, your Honor. And Mr. 7

Morales unfortunately was -- and a DEA task force agent that 8

had dealt with him so he didn't search him, so we only know 9

what he told us and he said he had $13,000 on him. 10

As far as Mr. Malinowski, he's up in Baltimore. He's 11

-- I think they tried to give -- I think he's retained a lawyer 12

in Baltimore. An ICE agent went to speak to him, you know, he 13

didn't want to talk to anyone else, so at that time Mr. 14

Malinowski's up in Baltimore. 15

THE COURT: And this -- 16

MS. FERKO: And I believe there's some other charges 17

in Baltimore that has arisen with Mr. Malinowski, so he's kind 18

of, I think, in the state system at this point. 19

THE COURT: Okay. 20

Okay, let's -- Mr. Teakell, let me -- is there 21

anything that you specifically want to point out. 22

I've reviewed all the documents in getting ready for 23

today. I did spend a -- I received the packet from U.S. 24

Attorneys' Office a couple of weeks ago. 25



11

MS. FERKO: That's correct, your Honor. 1

THE COURT: I've reviewed it then, I did not review 2

it this morning, but I reviewed it, looked at the issues then. 3

This case, because he was facing a lot of time, it was of 4

concern to me I don't have cases that frequently where people 5

grade out to career offender status and so I looked at it and 6

felt as though that those prior underlying convictions did 7

merit the enhancements. I did feel like that the malicious 8

burning was equal to arson. 9

I've had that issue come up in some immigration cases 10

to determine whether those people are enhanced 16 levels or not 11

and I've -- I -- a very similar statute of malicious burning, I 12

granted the enhancement finding it was arson. It was the 13

equivalent to the generic (indiscernible) meaning of the word 14

of arson. That was appealed and I was affirmed and so I feel 15

comfortable that the law would support the finding here as well 16

on this malicious burning. 17

And then he has a prior drug trafficking offense and 18

therefore career status. Would you like specifically to 19

address anything. 20

MR. TEAKELL: I do, Judge. 21

THE COURT: I know you had a long brief that I did 22

read as well. 23

MR. TEAKELL: I do and I appreciate that. I'd like 24

to confer just for a moment with Ms. Ferko, if I can, before I 25



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-- 1

THE COURT: Sure. 2

MR. TEAKELL: -- come back to you. 3

(Pause; Counsel confers) 4

MR. TEAKELL: Yes, your Honor, may it please the 5

Court. 6

First of all in regard to the other enhancements that 7

the Court took up at the first part of the sentencing, we just 8

reiterate our objections to those of being the 9

organizer/leader. 10

There are supposedly five people involved, the 11

Defendant, this Adam who traveled with him who was carrying 12

money, a large amount of money. The source of the controlled 13

substance who was here in the McAllen area. 14

THE COURT: Omar or something like that. 15

MR. TEAKELL: The -- Raul, I believe. 16

THE COURT: Raul, excuse me. 17

MR. TEAKELL: Anyway, there was the fourth person, 18

the female you've mentioned before, from Maryland. And then 19

supposedly the, as I understand it, the fifth person to 20

constitute the five people or more, was whomever the cocaine 21

was to ultimately go to. 22

It's our position that there at most -- there are 23

less than five because we don’t know who the person is in 24

Maryland, besides that it's a contact of Adam. Adam, the 25



13

person who had traveled at one time with Mr. Morales and was 1

carrying a lot of money. So, it's tentative at best and we'd 2

reiterate our objection to that. 3

In regard to the quantity, again, same thing. We'd 4

say that the -- we reiterate our objection that the evidence is 5

not credible and it's not been corroborated it came from the 6

woman you've mentioned who testified about other similar 7

activities -- other similar loads that she understood that -- 8

now I don't know and I don't know if the Government knows if 9

the basis she has for that other than perhaps overhearing or 10

supposedly overhearing Mr. Morales or someone else. But, 11

again, we would deem it to be not credible to jack up his 12

quantity amount. 13

THE COURT: Okay. I understand your objection. A 14

couple of things that I noted with respect to Ms. Frey's 15

credibility about being involved in this load. She was not 16

pregnant, she was asked to wear a pregnancy outfit. She wore 17

it when it didn't have something in it and then wore it -- she 18

could sense it was loaded, she talked in great detail about 19

exactly what she did, how she was able to avoid security at the 20

airport because of that. 21

And then she talked in detail about cocaine being 22

mailed to her grandmother's that she retrieved and she seemed 23

-- her statements were credible, they were specific, they were 24

consistent with the Court's knowledge of how these operations 25



14

work. And so I find her statements to be credible and 1

therefore hold Mr. -- hold the Defendant here, Mr. Morales 2

responsible for at least that. 3

I thought, sir, that if we included amounts that were 4

being mailed that this would be significantly greater than the 5

-- more than 15 kilograms and I'm just -- that I'm holding him 6

for. 7

With respect to the five members, at least five 8

members of the conspiracy. There is this supplier and then 9

there -- Mr. Morales was in charge of buying and reselling and 10

transporting. And we have Mr. Morales, Ms. Frey, the co-11

defendant that we spoke about up in -- up in the northeast and 12

then the person to whom ultimately it was being delivered or 13

transferred to. At least five people are involved in this. So 14

I believe the plus three was appropriately assessed. 15

I would also note that that's somewhat academic in 16

that if it wasn't assessed he's still getting bumped to the 37 17

because of the career offender. Either way he's at a level 37. 18

MR. TEAKELL: Yes, sir. 19

THE COURT: I did take off the three points for 20

acceptance which reduced him to a 34. 21

MR. TEAKELL: And also back to the quantity, your 22

Honor. 23


MR. TEAKELL: It's my understanding that at least -- 25



15

at least some of what Ms. Frey had indicated the Government is 1

willing to -- as far as they're concerned, not accept as far as 2

additional quantities. So, if that makes a difference in the 3

calculation great, if it doesn't -- 4

THE COURT: What, I'm sorry, what did you -- 5

MR. TEAKELL: It's my understanding that Ms. Ferko is 6

-- is not opposing excluding some of what Ms. Frey had said. 7

Now, I don't know -- 8

THE COURT: The mailed quantities or what is it -- 9

MR. TEAKELL: -- I don't think she's -- I don't think 10

she's talking about all of it. 11

MS. FERKO: Your Honor, the mailed quantity -- I 12

mean, your Honor, all the statements he gave I guess were under 13

a proffer letter. And as I stated, you know, anything that had 14

any -- 15

THE COURT: Right and so let's not talk about what he 16

said -- 17

MS. FERKO: Right. 18

THE COURT: I mean, let's talk about -- 19

MS. FERKO: So as I said -- 20

THE COURT: -- independently. 21

MS. FERKO: -- independently ICE agents went to speak 22

with her, she gave a confession, she said she was involved, she 23

said what she did, she told about the quantities and that. And 24

that's up to the Court to decide. 25



16


MS. FERKO: I mean, as I said, I mean, we -- you 2

know, I just wanted the Court to be aware of the, you know, -- 3

you know, we're not asking you to hold him to 40 kilograms -- 4

THE COURT: Right. 5

MS. FERKO: -- which was estimated in the packaging 6

or he told us -- 7

THE COURT: I'm not going to. 8

MS. FERKO: -- that's all in the letter. The 9

independent stuff, you know, we do feel that the Court can 10

consider that, but it was outside the proffer letter. And on 11

top of the fact that he lied, he was during the whole proffer 12

regardless, but you know, nevertheless, we're going to keep our 13

end of the bargain and just you know, we were asking for the 16 14

and then if the Court's going to consider Ms. Frey's statements 15

independently that's up to the Court. 16

THE COURT: Okay, that's what I'm doing. 17

MS. FERKO: Right. 18

THE COURT: I don't know what he said in his proffer. 19

I know what the investigation revealed as to Ms. Frey's 20

statements and so I'm considering those and then the seized 21

quantity. I have no knowledge of what he said in his proffer 22

to the Government. There's some information in the Presentence 23

Report, but I don't know what source, maybe some of it came 24

from his proffer, I thought most of it probably came from DEA 25



17

reports. 1

In any event I just feel holding him to at least the 2

17 kilos of cocaine is appropriate and for relevant conduct 3

which is a base of 34. 4

So, anything else, I mean, role and criminal -- and 5

career offender are really the only two big issues on this 6

case. 7

MR. TEAKELL: Yes, sir, in regard to the -- 8

THE COURT: And quantity amounts. 9

MR. TEAKELL: -- to the career offender status. As I 10

stated just -- I'll just kind of summarize. 11

In the response we made to the motion to make the 12

finding of career offense status noted that arson and malicious 13

burning under Maryland law, especially in 1995, were the -- 14

were two completely different crimes, different elements. 15

Also I noted that under the same Maryland law, or the 16

same statute, or a similar statute under Maryland law at that 17

time, that arson was deemed to be, along with a number of 18

specifically enumerated crimes, a crime of violence. 19


MR. TEAKELL: However, not included and rather 21

excluded from this list was the crime of malicious burning. It 22

has, as I stated, it's own statute, it's own punishment, it's 23

own elements and it is specifically not included in their list 24

of violent crimes. 25



18

So the state of Maryland at that time did not 1

include, did not deem this to be a crime of violence. In fact, 2

it's one of those that, as I understand, was used from time to 3

time as a -- a lesser included, so to speak, of arson or a 4

reduction from arson pursuant to a plea agreement. So the 5

state of Maryland didn't consider it to be a violent crime 6

specifically and they specifically excluded it. So based on 7

that, your Honor, and based on the fact that it's not an arson 8

case, it is -- we, of course, state that it's not a crime of 9

violence. 10

Now I heard what you said a moment ago about -- in 11

relation to an immigration case. 12

THE COURT: Well, in terms of crimes of violence 13

there. And I even recall the specific facts of that case even 14

because they came up about a week ago and it was a person who 15

burned his automobile, collect insurance proceeds. And I know 16

that seems to be that's exactly what this statute talks about, 17

even mentions for the purpose of defrauding to collect. Seems 18

like I read that somewhere to collect insurance proceeds, maybe 19

that's not in this statute. Yes, just with intent to defraud. 20

But I once thought that arson could only be of a 21

dwelling or of a home, but it's much broader than that. And 22

the statute seems to be -- cover that other aspect of arson 23

which is burning things other than a dwelling, such as personal 24

property like an automobile. 25



19

MR. TEAKELL: The other -- aside from the fact, 1

Judge, that Maryland does not specify this to be a violent 2

crime, what we've gotten from the Government is more docket 3

entries and more docket information than we previously had, 4

however, it's still just that, entries on the docket. Some 5

things were handwritten in and we still don't have a judgment. 6

Now I take it that that's because of the way the 7

state of Maryland does their records and it's my understanding 8

that they don't keep any judgments, but rather they destroy 9

them, make some sort of, for the lack of better term, cursory 10

records, like we see today, sort of like minute entries. And I 11

would submit also that we don't know with certainty, we don't 12

have a judgment on that. 13

(Pause) 14

THE COURT: Anything you wanted to say? 15

MS. FERKO: Yes, your Honor. 16

Your Honor, related to the first point I guess of the 17

malicious burning. 18

We filed, I think the last time we were here in 19

November, a written response to that and a motion urging the 20

specific case laws that have to do with that and the Court 21

ruled on it and found malicious burning was appropriate as an 22

arson as a violent crime or a crime of violence pursuant to 23

U.S. Sentencing Guidelines. So, your Honor, I'm going to just 24

rely on what we've written on that rather than rehash that 25



20

argument. 1

The additional documents that we filed related to the 2

career criminal or career offender portion of the application 3

to Mr. Morales, your Honor, specifically states -- recites here 4

is a case on page 3, 2 and 3 of what the Government -- or the 5

brief the Government filed. In addition to, your Honor, the 6

documents that support that this is indeed Jose Morales that 7

committed this malicious burning in the first degree, documents 8

-- Exhibit C, your Honor, is what they call pretrial docket 9

that we obtained with certified copy. A trial docket, it 10

listed a guilty verdict, it lists the exact case, it lists what 11

he pled to. Your Honor then they supplemented it with pen 12

packet or what's termed a pen packet in, I guess colloquial 13

terms, that's basically documents from the Maryland Department 14

of Public Safety and Corrections Services as Exhibit D of that. 15

And your Honor, we start off with the actual 16

fingerprint set that went for Mr. Morales back when he -- his 17

data was received on 9-18-1995 related to the theft, less than 18

$300, Malicious Burning First Degree and Malicious Burning of 19

Property, it's his photo and his fingerprints. 20

Mr. Teakell at the last hearing kind of alluded, 21

that, oh, I don't know if this is Mr. Morales, in this -- from 22

this 1995 conviction. I think if you look at that photo it's 23

completely clear that that is the same individual standing 24

before the bar of the Court. 25



21

Additionally you have admission summary under docket 1

number 502244 which provides all the personal information 2

related to Mr. Morales, his wife's name, Terri Morales, dealing 3

with refrigeration, criminal information regarding the Theft 4

Less Than 300, Malicious Burning First Degree, Malicious 5

Destruction of Property, cites it -- lists what was given five 6

years consecutive, suspended for two years probation, there's 7

some corrections. And each there they have his entry into the 8

prison system in Baltimore and it follows by commitment record 9

which lists what he received for each of those counts from the 10

court. They're sealed from the district court of Maryland. 11

All those documents -- while they're not called a 12

judgment, your Honor, support the fact, support this individual 13

was convicted of this crime. You know, and as far as the case 14

law's concerned when it deals with a career offender several of 15

the cases cite, including the Tenth Circuit, and the Fifth 16

Circuit even states -- you know a New York certificate of 17

disposition in the Gary Hernandez case because it's only proven 18

to prove a prior conviction. All I have to prove for a career 19

offender is that he had a prior conviction for the malicious 20

burning. 21

So the Government's going to support -- suggest that 22

when you look at the abstract we have the documents related to 23

the arson, documents related to his drug conviction, the drug 24

conviction we actually have the information that -- the 25



22

charging documents, the judgment, we have -- it was closer in 1

time, it was in 2004, he ultimately pled guilty on that. 2

For the 1995 case, I mean, there's nothing different 3

related to that information we've provided from the pen packet 4

that's in that abstract. And again, the abstract, if you 5

consider by the court as a whole is a criminal record. There's 6

not one thing that this Defendant has put forward to say I did 7

not do that, that wasn't me, you know, this is a big mistake. 8

I mean, you asked him before he started this, you know, the 9

sentencing again, your Honor, and you said, you know, is there 10

anything wrong, is there anything correct, I believe 11

everything's okay. 12

Your Honor, as far as the case law of the Fifth 13

Circuit the Government would say that the evidence of the prior 14

conviction using the abstract compiled with the information 15

received from the Maryland Department of Corrections supports a 16

conviction of Malicious Burning of the First Degree which does 17

qualify as a crime of violence under the Sentencing Guidelines 18

and which does, in combination with the Defendant's conviction 19

for drug trafficking offense, rises him to the level of career 20

offender. And we believe that the 37 level is appropriate, we 21

believe the career Criminal History of VI is appropriate and -- 22

THE COURT: It's a V. 23

MS. FERKO: Instead -- instead of V. 24

THE COURT: Yes, there's not a lot of difference here 25



23

between career offender and non-career offender because of the 1

quantities and the role and so these -- to me these are 2

somewhat academic arguments but are important for appellate 3

purposes. Because there's two ways we get at where we end up 4

here, one is through career offender finding and the other is 5

simply relevant conduct and role. 6

MS. FERKO: Right. And, your Honor, and again, I 7

also -- within that motion there's also -- depending on your 8

ruling on the career offender there's also a motion for upward 9

departure based upon what is not being considered in his 10

criminal history if the court doesn't (indiscernible) career 11

offender that this Court could clearly upward depart to a level 12

37, to a career criminal history of VI based upon this 13

Defendant's actions, this Defendant's criminal history 14

beginning at the age of what, 19. 15


MS. FERKO: And being as successful as he is at 35, I 17

believe. 18

THE COURT: Okay. I need to wind things down here. 19

Everybody's had a chance to speak, let me give Mr. Morales a 20

chance to speak. 21

MR. TEAKELL: Judge. 22

THE COURT: Mr. Morales, before I determine your 23

sentence you do have the right to speak. You're not required 24

to, but if there's anything you would like for me to consider 25



24

in determining your sentence now is your opportunity to speak. 1

MR. TEAKELL: Your Honor, if I may? 2


MR. TEAKELL: Could I address the career offender 4

status as well as the downward departure motion? 5

THE COURT: Let me let your client finish and then 6

anything you want to add on top of what he says I'll let you 7

speak. 8

MR. TEAKELL: Yes, sir. 9

THE COURT: Mr. Morales. 10

THE DEFENDANT: Sir, I know you asked if there was 11

anything wrong like Ms. Ferko said and I said -- I'm confused 12

about everything because when I pled guilty back here in your 13

courtroom -- 14


THE DEFENDANT: -- she specifically told me when I 16

was back there that she wasn't going to enhance me if I pled 17

guilty and if I went to trial that I would be enhanced, that 18

Tiffany would be arrested and my family. 19


THE DEFENDANT: She then told me and my attorney that 21

if I pled guilty that she would drop the charges on the rest of 22

my family. 23


THE DEFENDANT: And I would only be accountable for 25



25

the six kilos of cocaine that I admitted -- that I would admit 1

to. 2


THE DEFENDANT: The gentleman who I come down here 4

with and for -- 5


THE DEFENDANT: -- I told her everything. Yes, I did 7

tell some lies in the beginning with my first attorney who gave 8

me some very bad advice. 9


THE DEFENDANT: And he told me to make a story up, a 11

big story if I wanted the bail and that's what I did. 12


THE DEFENDANT: And then he -- I fired him. And then 14

I hired Mr. Teakell. 15


THE DEFENDANT: And then when I hired Mr. Teakell I 17

went in and as Mr. Teakell said to tell the truth on everything 18

and I did about Adam, about Raul, the person that come from, 19

everything, 100 percent of everything. 20

And I just -- she -- I don't understand -- I'm not -- 21

I understand what the career criminal means, I understand all 22

that. But I feel like I was tricked into saying "Yes, I plead 23

guilty." And I've wrote you two letters on this as well. I've 24

wrote you two letters at different times based on the same 25



26

things, I was told one thing and when I pled guilty. And I'm 1

not saying that I'm innocent or an angel, I'm not saying I know 2

what I did -- 3


THE DEFENDANT: But what I'm -- when I pled guilty 5

she told me that I wasn't going -- that if I didn't plead 6

guilty that I would be enhanced. 7

I had a public defender for, I think, two weeks, in 8

the process of firing my first attorney and the public defender 9

said the exact same thing as well. That if -- I would not be 10

enhanced if I pled guilty. And that's why I pled guilty under 11

all these intentions that I would not be enhanced. Otherwise 12

-- 13

THE COURT: I'm not sure -- I mean there are -- 14

THE DEFENDANT: Otherwise -- 15

THE COURT: -- different enhancements that are out 16

there. There's a mandatory minimum of 20 years that you would 17

have faced in this case. 18

MS. FERKO: That's -- and that's -- 19

THE COURT: And sometimes, well, frequently I see if 20

you plead guilty they don't enhance you with that mandatory 21

minimum of 20, but the chips fall then where they fall. In 22

every other aspect if you're a major player then you're looking 23

at a role enhancement there. If the quantities are such that 24

you have a base Offense Level where you come out here and 25



27

again, I would note that I find you come out the same way. So 1

even if we -- put aside his career offender in terms of your 2

base Offense Level, you'd come out exactly the same. 3

Now, it does make difference in your criminal history 4

because you'd be looking at a range of 235 months and upward 5

instead of 262 months and upward. And because you pled guilty 6

I am going to sentence you at the low end of the guideline 7

range. 8

Now had you not pled then you would not get three 9

acceptance points off. So for example, if you'd gone to trial, 10

then you'd be looking at 360 to life. Based on what I know 11

here, if you'd gone to trial and lost, I would have sentenced 12

you to life. 13

So you -- there was a lot of benefits to you 14

pleading, but again, hindsight's always 20/20. We don't know 15

what would have happened if you'd actually gone to trial, maybe 16

the quantities -- we just don't know. 17

THE DEFENDANT: Maybe I would have been not guilty, 18

sir. 19

THE COURT: Maybe Ms. Frey would have been involved, 20

you could have worked some deal out, I mean, who -- we just 21

don't know the -- it's too speculative what would have happened 22

had you gone to trial. 23

You have no control over, Ms. Ferko has no control 24

over, Mr. Teakell has no control over what I find is relevant 25



28

conduct. I look at the facts, determine what's -- I think is 1

fair and appropriate based on the evidence. I treat your case 2

like I do any other that's similarly situated, make my rulings 3

and move on to the next case. 4

I mean -- granted you got a long and significant 5

criminal history, again, based on what Ms. Frey said I didn't 6

hold you for any of this other stuff that she talked about in 7

terms of the mailed stuff because it's too speculative. I 8

don't know if you were mailing two kilo quantities, which is 9

pretty typical, or one kilo, which is also common, but not as 10

typical, I didn't hold you to any of that it's too speculative. 11

But she's carrying the weight on her, she can estimate whether 12

it's consistent with what you're telling her, how much weight 13

she has on her and so I felt like that was very credible. I 14

could rely upon that in determining the quantities. Even if 15

Ms. Ferko told you she wasn't going to push for that, it 16

doesn't matter, it's what the facts are. 17

MS. FERKO: Your Honor, just for the record, I had no 18

conversations with this Defendant about doing whatever we're 19

doing. The only statements we made to his Counsel, both 20

Counsel actually, was that if he was going to trial we would 21

consider a dry conspiracy and that still had to go for 22

approval. And then the other thing was that Mr. Teakell and I 23

spoke and I said, "Look, you need to advise your client that 24

he's possibly a career offender." I said based upon an arson 25



29

conviction and based upon his drug -- and that was spoken about 1

prior to his arraignment and at length with Mr. Teakell because 2

I wanted him to be fully aware of what the ramifications were 3

even of a plea, so -- 4

THE COURT: I understand. And Mr. Teakell has made 5

some good arguments. I'm not always correct, every, I don't 6

know, so often I'll get reversed on a case or I made a wrong 7

decision, it happens maybe once a year, twice a year -- not -- 8

I mean it happens. 9

Your lawyer has done a very good job in making sure 10

that if I make a mistake he's going to appeal and correct me 11

and I want to be corrected if I'm wrong. I don't want you to 12

spend one day more in prison than what you should, what I feel 13

you should. 14

So, let me -- Mr. Teakell, you were going to make 15

some last response, last comment. 16

MR. TEAKELL: Yes, your Honor. I just was going to 17

point out that in regard to the career status, just kind of in 18

rebuttal, what Ms. Ferko was stating which I'd already put in 19

the response, Boykin versus Alabama (phonetic), the Supreme 20

Court case just says that the burden's on the prosecution, we 21

got to show that the Defendant knowingly and intelligently 22

entered the plea, waived his rights for -- in other words to 23

show that there's a -- something to enhance him with for 24

whatever that's worth to the Court. 25



30


MR. TEAKELL: And in regard to the downward 2

departure, as Mr. Morales has already pointed out, there were 3

what I characterize as two debriefings. One, early on before I 4

came into the picture and apparently that didn't go well. And 5

then later he was debriefed, provided information about this 6

Raul, about Adam, who was transporting a lot of money with Mr. 7

Morales. 8


MR. TEAKELL: And I think some other information 10

which the Government has not used at present, but he at least 11

provided that and tried to do that and tried to correct himself 12

from his first scenario. 13


MR. TEAKELL: And the cases I've cited are frankly 15

from the Second and the Sixth Circuit, they do say that the 16

Court can go ahead and downward depart even if there's no 17

fruits of his labors, so to speak. 18

THE COURT: I understand and I occasionally do that 19

when I think the 3553(a) factors merit it. Here I just don't. 20

So, from everything I know, I don't find that that's 21

appropriate given the -- all the misinformation he gave 22

previously really destroyed his credibility or usefulness to 23

the Government with his preposterous story about this lawyer 24

essentially directing this smuggling scheme. 25



31

Okay. Any final word from the Government? 1

MS. FERKO: Nothing, your Honor. We rely on what we 2

filed. 3

THE COURT: No, okay. Court will -- your client's 4

already spoken. 5

MR. TEAKELL: May have him make just another 6

statement to the Court? 7

THE COURT: Anything else you'd like to add before I 8

sentence you? 9

MR. TEAKELL: Can I have just a quick moment with 10

him? 11


(Pause) 13

THE COURT: Okay, anything else you anted to add, Mr. 14

Morales? 15

THE DEFENDANT: Yes, sir. 16

First I'd like to apologize to you and the courts for 17

even being here, for considering and transporting the cocaine, 18

which I did. I know I got a criminal history that's a long -- 19

that's a lot and I'm not making excuses, you know, I apologize 20

it's just through years of drug abuse. 21


THE DEFENDANT: And I apologize for all this. And 23

believe me I've been here a year and a half, I haven't seen no 24

one in my family, I don't even know no one here in the valley, 25



32

not one person. And I realize now what I should have realized 1

years ago. I got four kids. I'm sorry, your Honor, I just ask 2

for you to just take that into consideration, please. 3

THE COURT: Okay. I will recommend you be placed in 4

an institution close to your family so that they can come visit 5

you and your children can grow up and see you when they can. 6

I would also remind you, something I know your 7

lawyer's already talked to you about and that is that you -- 8

you still have an opportunity to reduce your sentence even 9

after I sentence you. If you provide substantial assistance to 10

the Government then within the next year they can -- they will 11

ask me to reduce your sentence and I'll take -- I mean I -- 12

just from where you -- you're going to cut years and years and 13

years off of your sentence so if you do that. And there are 14

ways to do that, your lawyer can explain all of these. But I 15

feel based on your knowledge it's not very hard to do, you can 16

probably identify people who are in this business and help the 17

Government locate them -- 18

THE DEFENDANT: Okay. 19

THE COURT: -- which would likely be enough to get a 20

reduction in your sentence. Anyway, you'll have -- I want your 21

lawyer to talk to you about that later. 22

I do -- let me make my findings and my sentence, I 23

have a jury waiting. 24

THE DEFENDANT: Can I -- can I say something else on 25



33

that? 1


THE DEFENDANT: I did, I gave the information on the 3

bank accounts where the money came from, what banks they come 4

from, where it was going, who supplied the money, to who it was 5

-- a copy of the guy's driver's license, the person down here 6

who we got it from. 7

THE COURT: Right. 8

THE DEFENDANT: And they say it's not good enough. 9

THE COURT: I'll find out about that. 10

Ms. Ferko, what -- he did -- remember when he went 11

into the restroom and took a photograph of the guy's wallet, 12

and his I.D., what happened with that? 13

MS. FERKO: Your Honor, I have Garrett Huling in the 14

back. If I may ask him to approach. 15

THE COURT: I mean maybe it's still under 16

investigation. 17

THE DEFENDANT: I mean I understand I did wrong and I 18

tried to redeem myself by identifying all the players, I mean, 19

the actual banks, the day we went, where the large checks got 20

cashed from the check cashing company, everything from A to Z. 21

THE COURT: Okay. 22

Your name first, for the record. 23

SPECIAL AGENT HULING: Special Agent Garrett Huling, 24

ICE. 25



34

THE COURT: Okay. I just was asking about that one 1

issue where he did seem to -- with his cell phone he took 2

pictures of some I.D. information. What was -- how come that 3

wasn't very useful? 4

SPECIAL AGENT HULING: Which -- I'm not even -- is 5

this where we -- 6

THE COURT: At one of the exchanges at the 7

gentleman's club, he took -- this gentleman I understood took 8

the supplier's wallet and went and photographed his I.D. And 9

he's telling me that information was given to you all, it had 10

the supplier's -- Omar or something or other, I forget his 11

name. 12

MR. TEAKELL: Raul. 13

THE COURT: Raul, I'm sorry, I keep calling him Omar. 14

Raul's I.D. -- 15

THE DEFENDANT: They showed me a picture of it and 16

then I signed knowing who he was and all that. 17

THE COURT: Uh-huh. I think maybe Raul's already 18

serving a lot of prison time. 19

MS. FERKO: Your Honor, I believe -- 20

MR. TEAKELL: I don't think anybody's been prosecuted 21

out of the rest of the group that -- 22

MS. FERKO: Your Honor, I don't want to misspeak to 23

the Court. This case, as I said, has been since '08. I 24

believe when we looked in Raul there was -- the driver's 25



35

license -- apparently he took the photos when he got ripped 1

off. But I believe there was nothing that led back to 2

specifically that location or any other location where we could 3

rematch to his name. 4


MS. FERKO: And again, as I said there was also other 6

agents working with us on this. I don't want to misspeak, I 7

don't to want to say something to the Court, but I -- in the 8

long run I believe it was a dead end that's what I was 9

informed, but I don't want -- 10

THE COURT: No corroboration, I mean, -- 11

MS. FERKO: I don't recall -- 12

THE COURT: -- he could take a photograph of 13

anybody's driver's license. 14

MS. FERKO: Right. And I mean, it's a name -- 15

THE COURT: You got to have more than that. 16

MS. FERKO: -- but I think there was nothing else 17

that we went further -- that we went further with. 18

As I said, your Honor, I don't want to misspeak, but 19

I just know that initially, your Honor, we were charging 20

(indiscernible). We came back in, we talked, it about flights. 21

I mean, what this Defendant needs to understand is that this 22

district doesn't normally do six kilograms of cocaine. I mean, 23

the difference was was that he was utilizing an airplane to fly 24

back to Baltimore. There was a whole investigation, you know 25



36

that had all these possibilities for this area, not necessarily 1

this Defendant with his six keys, so -- 2

THE COURT: Right, not a big case is what Ms. Ferko's 3

saying -- 4

MS. FERKO: Right, I mean, it's really not. 5

THE COURT: -- six keys -- 6

MS. FERKO: So I mean I just want -- I want the Court 7

to understand, I mean, the fact that he ended up being a career 8

offender, you know, changes -- you know, makes him a larger 9

Defendant, but as far as ICE was concerned, you know, there was 10

a lot of investigation going into the airport aspect to it. 11

You know, he did talk to us about who he dealt with 12

and there was some thought -- there was a dead-end follow-up on 13

that. And as I said as far as an individual license I recall, 14

your Honor, I was told that it didn't go anywhere. But again, 15

I don't want to misspeak, I don't want to misspeak to the 16

Court. I do have the agent here, but there were other agents, 17

your Honor from our ICE and Baltimore ICE. 18

THE COURT: Was there anything -- 19

SPECIAL AGENT HULING: I vaguely remember that -- 20


SPECIAL AGENT HULING: -- but like Ms. Ferko was 22

speaking we -- we were, you know, hard-charging at first and 23

tried to corroborate the information that was provided. We 24

flew down agents from Baltimore to follow over there. Even our 25



37

U.S. attorneys up there in -- amidst multiple lies. I do 1

vaguely remember information about a lady that works at 2

Dillards -- 3

MS. FERKO: That's correct. 4

SPECIAL AGENT HULING: -- nothing was -- nothing that 5

we could really work with. 6

MS. FERKO: And your Honor, everything we did follow 7

a lead on ended up absolutely nowhere and it was -- it was -- 8

THE COURT: Who was his initial lawyer? 9

MS. FERKO: His initial was Eric Jarvis, actually his 10

initial lawyer was Nadia Medrano. He had Nadia Medrano I think 11

for like a week and then he hired Eric -- 12

THE COURT: Yes, right, but that was just -- 13

MS. FERKO: -- and then -- 14

THE DEFENDANT: I had Eric first and then the public 15

defender. 16

THE COURT: Okay. 17

Okay. The Court adopts the factual findings 18

contained within the Presentence Report, grants the three 19

acceptance points which results in a total Offense Level of 34. 20

Based on my finding of a career offender this will be a 21

Criminal History Category of VI, otherwise I would have found 22

Criminal History of V. 23

Criminal History Category VI is a range of 262 to 327 24

months. Based on the circumstances and everything I know the 25



38

fact this was only 6 kilos in this load, another 11 kilos in 1

the other load, a 17 kilo case, I find that a sentence within 2

these guidelines satisfies them. Again, this is also closely 3

looking at his prior criminal conduct. 4

I considered all those factors under 18 U.S.C. 5

3553(a) and conclude that a sentence within these guidelines 6

satisfies them. And therefore pursuant to the Sentencing 7

Reform Act of 1984 it's the judgment of the Court the 8

Defendant, Mr. Morales, is hereby committed to the custody of 9

the Bureau of Prisons to be imprisoned for a term of 262 10

months. 11

Upon release from imprisonment he is placed on 12

supervision for five years. With 72 hours of his release from 13

the custody of Bureau of Prisons the Defendant is to report in 14

person to the probation office in the district to which he is 15

released and while on supervision he is not to commit another 16

federal, state or local crime. He is to comply with the 17

standard conditions adopted by this court, abide by any 18

mandatory conditions as required by law. 19

In addition he's not to possess a firearm or other 20

destructive device. He's to cooperate in providing a DNA 21

sample. I find Mr. Morales cannot afford to pay a fine so I 22

waive it, but he is assessed a $100 special assessment which is 23

payable immediately. 24

Mr. Morales, you can appeal. You'd have 14 days to 25



39

do so. If you could not afford the cost of an appeal you could 1

ask that I waive these costs of an appeal. 2

Are there remaining counts? 3

MS. FERKO: Your Honor, there are. And I ask that 4

you dismiss all the remaining counts at this time. 5

THE COURT: Okay, I will -- I will dismiss all 6

remaining counts. 7

Mr. Morales, I'll recommend you be placed in an 8

institution where you can receive treatment for drug 9

addiction/dependency and abuse. If you successfully complete 10

that program that will take a year off of your sentence. 11

I will also recommend that you be placed like I said 12

in an institution near your family. 13

Okay, best of luck to you, Mr. Morales, you're 14

excused at this time. 15

Okay. 16

(This proceeding adjourned at 4:12 p.m.) 17

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CERTIFICATION

I certify that the foregoing is a correct transcript from the

electronic sound recording of the proceedings in the above-

entitled matter.

July 26, 2010 _

TONI HUDSON, TRANSCRIBER
