1 UNITED STATES SENTENCING COMMISSION 2 3 4 5 6 PUBLIC HEARING 7 8 9 10 11 Monday 12 March 6, 2006 13 Sheraton Suites Hotel 14 701 A Street Ovations Conference Room 15 San Diego, California 92101 16 17 18 19 20 21 22 23 AD HOC REPORTING 110 West C Street, Suite 807 24 San Diego, California 92101 (619) 236-9325 25 Ad Hoc Reporting 2 1 U.S. SENTENCING COMMISSION 2 3 Commissioners Present: 4 Michael E. Horowitz 5 Beryl A. Howell 6 Ruben Castillo 7 John R. Steer 8 Michael J. Elston 9 Commission Staff Present: 10 Judith W. Sheon 11 Krista Rubin 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ad Hoc Reporting 3 1 CONTENTS 2 Page 3 Opening Remarks .................... 5 4 Judicial Perspective from the Southern District of California 5 Honorable Irma Gonzalez ............. 7 6 Chief Judge Southern District of California 7 Honorable Marilyn Huff .............. 11 8 District Court Judge Southern District of California 9 Judicial Perspective from the District 10 of New Mexico 11 Honorable Martha Vazquez ............. 31 Chief Judge 12 District of New Mexico 13 Anita Chavez ................... 46 Chief Probation Officer 14 District of New Mexico 15 Phillip Munoz .................. 48 Assistant Deputy Chief Probation Officer 16 District of New Mexico 17 Department of Justice Perspective 18 Johnny K. Sutton, Esq. .............. 61 United States Attorney 19 Western District of Texas 20 Defense and Other Advocates 21 Reuben Camper Cahn, Esq. ............. 84 Executive Director 22 Federal Defenders of San Diego 23 Jon Sands, Esq. ................. 92 Federal Public Defender 24 District of Arizona 25 Ad Hoc Reporting 4 1 CONTENTS (CONT'D.) 2 Page 3 Judicial Perspective from the District of Arizona 4 Honorable John M. Roll ............. 107 5 District Court Judge District of Arizona 6 Magdeline E. Jensen .............. 113 7 Chief United States Probation Officer District of Arizona 8 Mario Moreno .................. 117 9 Assistant Deputy Chief Probation Officer District of Arizona 10 Probation Officer Perspective from the Southern 11 and Central Districts of California 12 Michelle Carey ................. 129 Assistant Deputy Chief Probation Officer 13 Central District of California 14 David J. Sultzbaugh .............. 139 Assistant Deputy Chief Probation Officer 15 Southern District of California 16 17 18 19 20 21 22 23 24 25 Ad Hoc Reporting 5 1 SAN DIEGO, CALIFORNIA MONDAY, MARCH 6, 2006 9:48 A.M. 2 --oOo-- 3 COMMISSIONER CASTILLO: We're starting today. I'd 4 like to welcome everybody on behalf of the Sentencing 5 Commission. My name is Ruben Castillo. I'm a District Court 6 Judge in Chicago. I'm also on the Sentencing Commission. 7 Starting on my left is Commissioner Michael 8 Horowitz, Commissioner Beryl Howell, Commissioner John Steer, 9 and Commissioner Mike Elston, who is ex officio from the 10 Department of Justice. Unfortunately, we're missing our 11 chair, Ricardo Hinojosa, who has been under the weather, but 12 is getting better. It was under his fine leadership that we 13 agreed to have a series of regional hearings, principally 14 along the U.S./Mexican border, to evaluate the proposals that 15 we are looking at this year in terms of immigration and 16 criminal law. 17 We greatly respect and appreciate the work of all 18 the judges along the U.S./Mexican border. They are pressed 19 to do too much with too little. Simply put, our statistics 20 show that there has been a five-fold increase in immigration 21 offenses that are being dealt with along the border. We 22 appreciate also, on behalf of the Commission, that the vast 23 majority of these cases are sentenced within the guidelines. 24 What does the Commission want to do? Well, we want 25 to help. We certainly don't want to in any way pass any type Ad Hoc Reporting 6 1 of guidelines that would hinder the great over-tasked work 2 being conducted by our colleagues along the U.S./Mexican 3 border. 4 This is our second regional hearing. The first was 5 in San Antonio, Texas last month. We heard what was 6 occurring in Texas. Today we hope to continue and expand our 7 dialogue with judges from San Diego, the Southern District of 8 California, New Mexico, Arizona. And I really want to 9 emphasize that this is just the start of what we hope will be 10 an ongoing dialogue. We had tried to, by having working 11 groups -- and I know some of you participated in that in 12 D.C. -- we also previously sent Judges Kendall and Judge 13 Sterling-Johnson to a Fifth Circuit conference. Maybe we 14 don't get out from D.C. often enough. It's not because we 15 don't want to. We think it was important that these hearings 16 be conducted here, especially in the Southern District of 17 California. 18 Where we're concerned, as I said, is the proposed 19 amendments that deal with the unfortunate events at the 20 border. The focus is not only on analyzing those who come 21 from Mexico to the U.S., but more importantly, on protecting 22 their safety and their lives, while maintaining the integrity 23 of our borders in this challenged post-911 era that we all 24 live in. 25 We're not here also to set any type of immigration Ad Hoc Reporting 7 1 policy on who should come across and who should not. Our job 2 is strictly to try and get the penalties right with regard to 3 violations of the criminal law. It will be up to Congress to 4 decide as part of the national policy what the immigration 5 laws should be with regard to who comes in and who does not. 6 So with that, I'd like to welcome our first panel 7 from the over-tasked Southern District of California. I call 8 upon Chief Judge, and my good friend, Irma Gonzalez, and also 9 the previous Chief Judge, and my good friend, Marilyn Huff, 10 to please step up. Thank you. And we can proceed in 11 whatever order you want. 12 JUDGE GONZALEZ: I'm going to start. 13 (Pause; adjusting microphone.) 14 Thank you for the opportunity to provide testimony 15 before the Sentencing Commission here today concerning the 16 proposed amendments regarding the immigration guidelines. As 17 Chief Judge of the Southern District of California, I'd like 18 to extend a warm welcome to all of you, and hopefully you'll 19 have an opportunity to enjoy our beautiful city, and 20 hopefully the weather will hold up. I know tomorrow you have 21 a tour of the border scheduled, and hopefully that will go 22 forward without any problems as far as the weather is 23 concerned. 24 The judges in the Southern District of California 25 appreciate the opportunity to discuss the proposed changes to Ad Hoc Reporting 8 1 the immigration guidelines due to the high volume of cases 2 that this court handles -- immigration cases this court 3 handles. The most recently published numbers in the 2003 4 Source Book of Federal Sentencing Statistics indicates that 5 our district sentenced 2,046 immigration defendants out of 6 the total of 15,081 defendants, or approximately 13.6 percent 7 of the total immigration cases in the District Courts. For 8 that reason, we are grateful that the Sentencing Commission 9 is here for this public hearing to discuss these very 10 important issues that are raised by the proposed amendments. 11 Our court also compliments the Sentencing 12 Commission for the thoughtful and reasoned analysis 13 accompanying the proposed amendments. We encourage the 14 Commission to carefully consider the proposed amendments in 15 light of all the testimony you will hear from everyone here 16 today, not only the judges, but the members of the Department 17 of Justice, and also the Federal Defenders or Federal Public 18 Defenders. As judges, we welcome comments from all those 19 that are interested in this topic of public concern, as I'm 20 sure you also welcome these comments. 21 In general, our district supports the concept that 22 amendments to the immigration guidelines might help achieve 23 the statutory purposes of sentencing, while providing 24 advisory guidance to the District Courts in immigration 25 cases. I will highlight in particular certain issues Ad Hoc Reporting 9 1 relating to the proposed amendments for Section 2L1.1, that 2 is, smuggling, transporting or harboring unlawful aliens, 3 while my colleague, Former Chief Judge Marilyn Huff, will 4 address special issues that relate to high-speed chases and 5 unlaw entry under Section 2L1.2, and also the overall 6 uniformity of the immigration guidelines compared to the drug 7 smuggling guidelines, and the success in our district of the 8 Fast Track Program. 9 As far as Section 2L1.1 is concerned, the court 10 supports the proposed amendment to increase the base offense 11 level for national security concerns, and leaves it to the 12 Commission to determine the best option after public comment. 13 The Commission might also want to consider whether a similar 14 adjustment for national security concerns might be available 15 in appropriate cases under Section 2L2.2, that is, 16 fraudulently acquiring documents relating to naturalization, 17 citizenship or legal resident status for own use. I notice 18 that there are some -- just one small proposed amendment for 19 trafficking in fraudulent documents, but not for fraudulently 20 acquiring the documents, although the court in this district 21 has limited experience with document cases.