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United States v. Gomez

United States District Court, E.D. Kentucky, Central Division, Lexington

January 15, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
RAFAEL GOMEZ, Defendant.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

Defendant Rafael Gomez and a co-Defendant, Eulogio Ramirez-Olivas, engaged in a conspiracy to distribute marijuana in this judicial district. The conspiracy occurred during February 2004 and an indictment was returned the same month. [Record No. 5] Shortly thereafter, Gomez entered a guilty plea pursuant to a written Plea Agreement with the government. [Record No. 25] Gomez's Plea Agreement provides details concerning this crime.

(a) On or about February 4, 2014, in Fayette County, in the Eastern District of Kentucky, the Defendant aided and abetted by Eulogio Ramirez-Olives [sic] possessed with intent to distribute approximately 720 pounds of marijuana. The Defendant, Ramirez-Olivas, and a third person arrived in the parking lot behind Climotos Mexican Restaurant on Versailles Road. The Defendant and the third person arrived in the Defendant's car, while Ramirez-Olivas arrived in a pickup. Once in the parking lot, Ramirez-Olivas backed the pickup to the rear of a tractor-trailer parked in the parking lot. All three men then proceeded to transfer several packages from inside the trailer into the bed of the pickup. Thereafter, Ramirez-Olivas drove away in the pickup, which the Defendant drove away in his car. The third person apparently stayed with the tractortrailer. The Defenant and Ramirez-Olivas were both stopped for traffic violations. Ramirez-Olivas abandoned the pickup and fled on foot before being arrested. A search of the packages in the bed of the pickup revealed them to be marijuana. The Defendant was then arrested for his role in transferring the marijuana from the trailer to the pickup.
(b) The marijuana transferred and possessed by the Defendant and Ramirez-Olivas is, in fact, marijuana, a Schedule I controlled substance. The weight is more than 100 kilograms but less than 400 kilograms (i.e. approximately 720 pounds). This amount of marijuana is consistent with distribution and not personal use.

[Record No. 26]

Gomez was sentenced on July 9, 2004, to a term of imprisonment of 70 months, to be served consecutively to a 40-year term of imprisonment imposed in Illinois. The sentence imposed by this Court was at the bottom of the defendant's guideline range of 70-87 months.

At the time of sentencing, the United States Supreme Court had not issued its decision in United States v. Booker, 543 U.S. 220 (2005). As a result, the sentencing judge's[1] focus at the time of sentencing was upon the guideline range as opposed to the factors set out in 18 U.S.C. ยง 3553. However, those statutory factors were noted as having been considered during the sentencing hearing. Further, the transcript of the sentencing hearing makes clear that the sentencing judge imposed a sentence at the bottom of Gomez's guideline range based, in part, upon his argument that he would likely spend the remainder of his life in prison due to a forty-year term of incarceration imposed in Illinois.

After discussing the enhancement applied in calculating Gomez's guideline range based on false information he provided regarding his identity, the defendant's counsel made the following representations in arguing for a sentence at the bottom of the guideline range:

[Mr. Bradbury[2]:]... All that being said, we would still urge the Court to impose the minimum. He's 47 years old. As the Court can see from his presentence investigation report, [in] the Illinois case he was tried in absentia, [and] received 40 years.
THE COURT: How many?
MR. BRADBURY: 40. Which he didn't even know about until we began having discussions with probation and received the paperwork from there. He simply thought he still had an outstanding warrant. So he has that case, plus he has the case from Missouri, that's a Federal prosecution that would transfer here. So Mr. Gomez faces the very real possibility of spending the rest of his life in prison. We simply ask the Court to impose the minimum of 70 months.

[Record No. 53; Sentencing Hearing Transcript, p. 7] The United States did not object to this request. [ Id. at p. 8]

In announcing the sentence of imprisonment of 70 months, the sentencing judge noted the following:

[The Court]... From what I can tell from reading the presentence report it is obvious that the defendant has pretty much made a career of dealing in drugs. Even though that is true, in view of the prior sentence which he must serve, the Court is of the opinion that a sentence at the low end of the guideline range here would be ...

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