Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. BONNET-GRULLON

May 25, 1999

UNITED STATES OF AMERICA
v.
FRANCIS BONNET-GRULLON, DEFENDANT.



The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

This case demonstrates that the goal of sentencing uniformity which underlay the enactment of the Sentencing Reform Act may and, in some circumstances, is undermined dramatically by the vast scope of charging discretion reposed in federal prosecutors.

Defendant Francis Bonnett-Grullon pleaded guilty to unlawfully entering the United States after having been deported subsequent to a conviction for an aggravated felony. The Guideline range in his case is 70 to 87 months imprisonment. He seeks a downward departure pursuant to U.S.S.G. § 5K2.0 on the ground that similarly situated defendants who promptly agree to plead guilty in such cases in the Southern District of California are charged under a statute that permits a maximum sentence of 30 months.

Facts

Defendant's Record and Plea

On March 4, 1994, defendant was convicted of criminal sale of a controlled substance, i.e., crack cocaine, in the fifth degree in New York Supreme Court, Bronx County, and sentenced to 16 months to four years imprisonment. He was deported to the Dominican Republic on February 2, 1995.

Defendant next was arrested on May 13, 1997 by New York City police officers and subsequently convicted of criminal possession of a controlled substance in the seventh degree. He was sentenced to three days incarceration.

Defendant was arrested yet again on September 23, 1997 for criminal possession of a controlled substance, heroin. He was convicted and sentenced to 90 days imprisonment. While in state custody on this offense, however, the U.S. Immigration and Naturalization Service determined that he had reentered the country illegally. In consequence, defendant was indicted in this Court on June 22, 1998 on one count of unlawful reentry following deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a), 1326(b)(2). On October 9, 1998, he pleaded guilty to the indictment without a plea agreement. As indicated, his Guideline range, which is not controverted, is 70 to 87 months. The statutory maximum for the offense of conviction is 20 years.*fn1

The Southern California "Fast Track" Program

The facts concerning the charging and plea policies in the Southern District of California have been stipulated for purposes of this application.

Prior to 1998, the United States Attorney's Office for the Southern District of California instituted a "fast track" program whereby "[i]n all but the most serious cases," a defendant otherwise potentially chargeable under 8 U.S.C. § 1326 (b) "was allowed to plead guilty to a violation of 8 U.S.C. § 1326 (a), which carries a maximum term of two years. The conditions for the reduced sentence were that the defendant (1) waive indictment; (2) forgo motions; (3) waive presentence report; (4) stipulate to a particular sentence (usually 24 months); (5) submit to immediate sentencing; (6) waive all sentencing appeals; (7) consent to the entry of an order, issued by an Immigration Judge or officer, removing defendant from the United States upon conclusion of his or her prison term; and (8) waive all appeals of the removal order."*fn2

In March 1998, the Supreme Court decided Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350,*fn3 in which it held that 8 U.S.C. § 1326 (b)(2) is a penalty provision rather than a separate crime. This affected the "fast track" program because it eliminated the guarantee of a 24 month sentence for an early plea to a charge under 8 U.S.C. § 1326 (a). In consequence, the San Diego United States Attorney's Office modified the program to "permit criminal aliens in appropriate cases to plead guilty to two counts of violating the illegal entry statute, 8 U.S.C. § 1325. The first count is a six-month misdemeanor and the second is a two year felony. Thus, the combined `cap' is 30 months, a six-month increase in sentence under [a] . . . 1326(a) plea."*fn4

The reason for the San Diego fast-track program is not difficult to fathom. Approximately one-half of all undocumented aliens apprehended in the United States each year are caught in the Southern District of California.*fn5 "The fast track system allowed [an] explosion in filings to be accomplished . . . with limited staff increases and, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.