United States District Court, S.D. California
ORDER GRANTING GOVERNMENT'S RULE 35(b)(2) MOTION TO REDUCE DEFENDANT'S SENTENCE AND REJECTING DEFENDANT'S SUGGESTION FOR GREATER SENTENCE REDUCTION
LARRY ALAN BURNS, District Judge.
In 2007, this Court sentenced Gilberto Higuera-Guerrero ("Mr. Higuera") to prison for 30 years after he pled guilty to Racketeering and to Committing a Violent Act in Aid of a Racketeering Enterprise. Between approximately 1992 and 2002, Mr. Higuera served as a second-level lieutenant in the Arellano-Felix drug cartel ("AFO") working directly under his brother, Ismael Higuera-Guerrero. During that time, the AFO operated along the border between Tijuana and San Diego, and was "one of the biggest and most violent criminal groups in Mexico." Tim Steller, Mexican Drug Runners May Have Used C-130 from Arizona, Arizona Daily Star, April 15, 1998.The cartel engaged in drug smuggling, extortion, kidnapping, public corruption, and murder. Mr. Higuera's job was to help coordinate the receipt of large cocaine shipments from Colombia that were destined for importation into the United States. In connection with this task, he bribed public officials and assisted in the collection of AFO drug trafficking proceeds, netting the cartel tens of millions of dollars. Mr. Higuera's other duties for the AFO were more violent. As an example, he personally participated in the kidnapping and murder of a suspected informer named Cesar Gustavo Cruz-Prado. He also commissioned or participated in the murders of other victims. Mr. Higuera, a Mexican national, was arrested by Mexican police in 2004 and was extradited to the United States in January 2007.
Prosecutors have filed a motion under Rule 35(b)(2) asking the Court to reduce Mr. Higuera's sentence from 30 years to 20 years based on his post-sentence substantial assistance to the government. The motion itself was filed publicly, but the prosecutor's declaration setting forth the reasons for the requested sentence reduction was sealed to avoid compromising sensitive information and endangering lives. Consistent with the First Amendment, the public has a qualified right to know that the government has asked for a reduction of Mr. Higuera's sentence, but not the specific reasons supporting the request. See CBS, Inc. v. U.S. Dist. Court for the Cent. Dist. Of Cal., 729 F.2d 823, 826 (9th Cir. 1985) (finding a right of access to document filed in connection with a motion to reduce a sentence); United States v. Brooklier, 685 F.2d 1162, 1170 (9th Cir. 1982) (strong presumption exists in favor of public access to court records although the right is not absolute and can be denied if there are compelling countervailing reasons for keeping records secret).
Mr. Higuera's counsel, Stephen White, also filed sealed papers supporting a sentence reduction. He urges the Court to cut the sentence to 17 years. Mr. White's arguments focus exclusively on the value of Mr. Higuera's substantial assistance, rather than on non-assistance factors such as hardships of confinement or risk of safety. He points out that Mr. Higuera has an exceptionally good memory, and that he was able to recall and supply interrogators with very detailed information that other cooperating witnesses could not. According to Mr. White, the information that Mr. Higuera provided helped authorities locate and arrest other wanted drug traffickers, including some considered to be in the top echelon of the illegal drug trade. Mr. White also stresses that Mr. Higuera began cooperating with U.S. law enforcement even before his arrest in 2004 and his extradition to the United States in 2007. He urges a 13-year reduction in Mr. Higuera's sentence.
A preliminary question is whether under Rule 35(b)(2) Mr. Higuera should have any say in the extent of his sentence reduction. In a related case that now appears on Lexis, United States v. Francisco Javier Arellano-Felix, ___ F.Supp. ___, 2015 U.S. Dist. LEXIS 77247 (S.D. Cal. June 15, 2015), the Court analyzed this question. Noting that the Ninth Circuit hasn't directly addressed whether a defendant has the right to be heard before the court rules on a Rule 35(b) motion, the Court identified two rules pertaining to the process that may be relevant. First, a court has no authority to grant Rule 35 relief unless the government moves for a reduction of sentence, which it has done here. United States v. Tadio, 663 F.3d 1042, 1052 (9th Cir. 2011). Second, a court is not permitted to treat a Rule 35 motion as a plenary or de novo resentencing proceeding, id. at 1055, because courts "generally may not modify a term of imprisonment once it has been imposed.'" Dillion v. United States, 560 U.S. 817, 819 (2010) (quoting 18 U.S.C. § 3582(c)). It might be argued that, in combination, these rules authorize a district court to rule summarily on a government's Rule 35(b) motion without seeking or permitting input from the defendant.
On the other hand, while Rule 35(b) authorizes the government to recommend a reduction of a defendant's sentence based on his post-sentencing cooperation, the Ninth Circuit has emphasized that a district court must rely on its own evaluation of the significance and usefulness of the defendant's cooperation, taking into consideration the government's recommendation. United States v. Ressam, 593 F.3d 1095, 1125 (9th Cir. 2010) superseded by United States v. Ressam, 679 F.3d 1069 (9th Cir. 2012) (en banc). In other words, the court's role in the Rule 35 process is to decide whether to accept the Government's recommendation and, if so, the magnitude of departure as a function of the degree and nature of the cooperation. Tadio, 663 F.3d at 1048. So, assuming a court finds a defendant has rendered substantial assistance, it can order a greater reduction of sentence than that requested by the government. The Court's order in Arellano-Felix acknowledged the possibility that the extent of a sentence reduction predicated on a defendant's post-sentencing cooperation could be influenced by input from a defendant or from his counsel, but characterized it as "unlikely." Arellano-Felix at *5-6.
In United States v. Gangi, 45 F.3d 28, 31-32 (2nd Cir. 1995), the Second Circuit held that a defendant has a due process right to respond to a Rule 35(b) motion and to advocate for a greater reduction of sentence, although no formal or evidentiary hearing is required. The Gangi court observed that Rule 35 is the post-sentence counterpart to § 5K1.1 of the U.S. Sentencing Guidelines ("Guidelines"), which permits a court to reduce a defendant's sentence for presentence substantial assistance. That observation is relevant here. It is common practice in the Southern District of California for a defendant to be served with the government's § 5K1.1 motion, and to have an opportunity to comment. Moreover, the Ninth Circuit has held that a defendant has the right to challenge the government's refusal to seek a downward departure under § 5K1.1 - including, at least implicitly, the government's decision to ask for a skimpy downward departure - on grounds of either impermissible motive or breach of the plea agreement. United States v. Treleaven, 35 F.3d 458, 461 (9th Cir. 1994). Although Mr. Higuera does not allege that the government scaled back its Rule 35(b) recommendation based on an impermissible motive, and his plea agreement did not have a provision requiring - or even contemplating - that the government would bring either a § 5K1.1 or a Rule 35(b) motion, the Court nonetheless finds Gangi persuasive, and believes that the case provides impetus for considering input from the defendant and his counsel in assessing the extent of a Rule 35 sentence reduction.
As a final consideration, the Court is mindful that no review is permitted of its ruling on a Rule 35(b) motion, as long as the decision to reduce or not reduce the defendant's sentence is not "in violation of law." Tadio, 663 F.3d at 1045-46; see also United States v. Pedroza, 355 F.3d 1189, 1190-91 (9th Cir. 2004) (per curiam) (no jurisdiction under 18 U.S.C. § 3742 to review defendants claim that district court "abused its discretion by failing to reduce his offense level, and consequently his sentence, to a degree that he believes properly reflects the assistance he provided to the government"); United States v. Doe, 351 F.3d 929, 932 (9th Cir. 2003) (same); United States v. Arishi, 54 F.3d 596, 597-98 (9th Cir. 1995) (same). For this additional reason, the Court believes that its assessment of whether the government's sentence reduction recommendation goes far enough will be better served by permitting the defendant to comment and advocate on the issue. The Court will therefore entertain the defendant's input and allow his motion.
The government has recommended a 10-year reduction of Mr. Higuera's original sentence based on his post sentencing substantial assistance. The recommendation was made by an experienced prosecutor who has developed comprehensive knowledge of the AFO. The prosecutor also has the benefit of knowing the latest information available to law enforcement about other active drug cartels and other cartel participants who are currently operating. Five factors are relevant in assessing the government's recommendation: (1) the court's own evaluation of the significance and usefulness of the defendant's assistance (taking into consideration the government's evaluation); (2) the truthfulness, completeness, and reliability of any information provided; (3) the nature and extent of the assistance; (4) any injury or risk to the defendant or his family as a result of his cooperation; and (5) the timeliness of the defendant's assistance. Arellano-Felix at *8-9.
The Court finds that Mr. Higuera provided significant and useful information to the government, that the information was truthful, complete, and reliable, and that it was timely and helpful. Although there has been no showing that Mr. Higuera has been threatened or injured for assisting the government, the Court will assume that his decision carried with it an increased risk of harm. For all of these reasons, the Court concludes that Mr. Higuera provided substantial assistance to the government after he was sentenced. This finding is a required first step before the Court considers the magnitude of any sentence reduction under Rule 35. Tadio, 663 F.3d at 1048.
The remaining question in this case is whether a greater reduction of Mr. Higuera's sentence than that recommended by the government is warranted for his substantial assistance. In Arellano-Felix, the Court chose to defer primarily to the prosecutor's assessment of the value of the assistance. The Court explained that there are practical reasons for this. "Because prosecutors work closely with law enforcement agents who are on the front lines of the drug war, they are able to acquire a great amount of information, insight, and knowledge that helps them evaluate cooperation and assess its value. In contrast, judges - who are not on the front lines - are much more likely to form impressions about the significance and usefulness of cooperation from the accounts they get from others rather than from first-hand experience." Arellano-Felix at *11. In contrast to the evaluations offered by prosecutors, the Ninth Circuit has recognized that neither the defendant nor his counsel will ordinarily have comprehensive enough information (or particular competence) to ...