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United States v. Zitlalpopoca-Hernandez

United States District Court, S.D. California

March 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ADRIAN ZITALPOPOCA-HERNANDEZ, Defendant.

          MEMORANDUM OPINION ON RE-SENTENCING

          HON. ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE.

         This case was remanded for re-sentencing so that the Court can explain why it rejects Defendant's argument - the defense argument that imposing a 200-month sentence constitutes a so-called “unwarranted sentencing disparity” in his case. Re-sentencing was held on December 19, 2017.[1] This Opinion memorializes and supplements the oral findings and conclusions of the Court.

         I. FACTS & TESTIMONY

         The course of Defendant's criminal conduct and the facts leading up to his crimes of conviction provide the needed context for fashioning an appropriate sentence and rejecting the unwarranted sentencing disparity argument. Defendant's actions were not the product of a momentary lapse of judgement or an isolated act of financial desperation. Defendant took his time. He planned and implemented his criminal scheme over days, weeks, and months. The Court finds the following facts to be true beyond a reasonable doubt.

         FLORENCIA

         Florencia was 17 years old and living in Mexico. She came from a poor family. She was going to elope with her boyfriend and agreed to meet him at a bus station. After waiting five or six hours, her boyfriend never showed up. The Defendant Adrian Zitlalpopoca did. Defendant offered to help Florencia. He loaned her his cell phone to make a call, then left. He returned later around midnight. It was cold. He loaned her his sweater. Defendant told Florencia that the next bus would not depart until morning. He offered to drive her to his “sister's” house and he would return her the next morning.

         After spending a short time at the “sister's” house, he drove her to his mother's house in a nearby town. There they became intimate. He asked her to be his “wife.” He then drove her to his brother's house in Tlaxcala, Mexico. While en route he told Florencia not to listen to gossip that she might hear. A couple of weeks passed. He took Florencia to see a fancy car and fancy house that belonged to his friend. Florencia testified that after he showed her the car and the house he suggested she become a prostitute. He told her that he owed a debt and that if she agreed, it would help him out.

         At first she refused. Then she refused again. Eventually, she relented. Once she surrendered, she was introduced to his friend's “wife” or “woman” who was also a prostitute. The woman traveled with Florencia to another town called Puebla, Mexico, where Florencia was introduced to prostitution. Florencia testified that she worked five or six days a week. She gave all of her earnings to Defendant at his instruction.

         In 2005, Defendant directed Florencia to travel to Tijuana, Mexico, where she could earn more money. Florencia testified that on one occasion when Defendant did not come home at night she went looking for him. He responded by grabbing her by the hair. He punched her in the face. He kicked her. On another occasion he whipped her - with the cord to an iron. She heard that Defendant was looking for other woman to work for him. Defendant told her that “some come, some leave.”

         Florencia learned that Defendant and another woman[1] had traveled to the United States and that she was working for Defendant. Defendant and Florencia had talked about traveling to the United States before. Upon learning that Defendant was in the United States with Annabel, Florencia asked to also be brought to the United States. Defendant arranged for Florencia to be smuggled in.

         Within 3 or 4 days after arriving in the United States, Florencia began once again working as a prostitute. She would work in what evidence showed were the brushy canyons of San Diego's back country. After her arrest, Florencia was contacted by two of Defendant's brothers, Juan and Tonatiuh. She knew Tonatiuh was violent. She feared that Defendant and his family would come after her if she “turned on him.”

         ANNABEL

         Annabel was 18 years old and living in Mexico. Her parents were also field laborers. She was going to college. In March of 2006, she was at a public park. Defendant approached her. They began to talk. He lied to her. He told her he was younger than his actual age.[2] Defendant told her that he worked buying and selling clothing. They saw each other over several weekends at the park. Eventually, he asked her to marry him.

         He told Annabel that he had been working in the United States. He told Annabel that they could go to the United States to work, save money, and get married. One week before the school year was over, she left school with Defendant. They traveled to another town. Again, in Tlaxcala, Mexico. He took her to a house he said was his. The next morning Defendant introduced her to his mother, sisters, and brothers as his wife.

         On the second night, Defendant left. He told her he was going to go to work. He told her she was not allowed to speak to anyone. She was not to leave the house, or speak to anyone or use the phone. She did not go out of her room very much. Defendant told her she could not talk to his family.

         One night while they were together, Defendant suggested that she should work as a prostitute. He told her that he had a friend that had made a lot of money in prostitution and that they could too. She became upset and started crying. But “he insisted.” Defendant told her that if she loved him, she would do it. He told her that if she became a prostitute, then they would get married and she could help her family.

         She refused.

         He left for Tijuana, Mexico. While away he would call her. She told him she missed him and wanted to be with him. He told her that she could come to Tijuana, “but you know what for.”

         She too relented. Defendant arranged for a friend to bring her food. When Annabel told Defendant she would work as a prostitute, the next day, his friend and his wife brought her clothes. They then took her to work. Again to the town of Puebla, Mexico. She was told what clothes to wear and how much to charge. She worked in Puebla three days from noon to 9:00 p.m.

         Defendant then sent her an airplane ticket to travel to Tijuana. While she worked in Puebla, she gave her earnings to Defendant's friend, Jose, with Defendant's “permission.” She then flew to Tijuana with the woman who had taught her and taken her to Puebla. The next day, she began working in Tijuana.

         She would work from 7:00 p.m. to 3:00 a.m., or later. She worked every day. Defendant told her the money she earned was his and she had to give it to him. When she tried to keep some of the money, he took it away from her.

         In September 2006, he sent her to buy food. She looked in his wallet for money and found a condom. She asked him why he had a condom. He responded by throwing a remote control device at her, hitting her on the leg. Defendant then grabbed her hair and hit her in the face - with his fist. He hit her in the mouth with his fist. She became very scared.

         In January 2007, he took her to a party. Defendant saw her talking to another woman. He had told Annabel earlier that she was not allowed to talk to anyone. Defendant reacted by hitting Annabel on the leg with his fist. He hit her with his elbow. He hit her in the mouth. He grabbed her by the arm and dragged her toward the car. He continued hitting her. Annabel testified that Defendant was angry with her frequently. Annabel testified that there were other occasions when he would hit her.

         Defendant then moved Annabel to Mexico City to continue her work. She continued to deposit the money she earned into Defendant's bank account. At one point, she called Defendant and said she wanted to return to Tlaxcala to be with him. He told her that if she returned to him, she would not have to work as a prostitute anymore. And so she planned to return to Tlaxcala. Instead, he met her at the airport in Mexico City. He said to her: “You thought that I was going to leave everything for you and that you weren't going to work anymore, well, I lied to you.” Defendant then took Annabel back to Puebla to continue to work. He took her to his parents' house. He then left again.

         On one occasion while in Tlaxcala, Defendant and Annabel were at a park. They argued. She threw a corncob on the ground. Defendant then began hitting her. He hit her and hit her until she bent down to pick up the corncob - not with her hand, but according to his orders - with her mouth.

         Annabel testified that Defendant abused her on other occasions. On one occasion, he whipped her, just like he had whipped Florencia. With a cable. He also hit her with a broomstick. Annabel also testified that Defendant told her that his friends were looking for a woman who had gone to the police in order to “kill her, beat her or something, but they wanted to find her.” She testified that she became scared.

         Defendant told Annabel that if they came to the United States she would be his only woman. Of course, that proved not to be true.[3]

         Defendant arranged to have himself and Annabel smuggled into the United States. When they arrived in the United States, Defendant told Annabel that she had to work in order to repay Defendant's cousin who had paid the smuggler's fee. She began working two days after arriving in the United States. Annabel testified that she worked at a “ranch.” She also testified that they used plastic tarps to lay down on while she and Florencia worked. Annabel lived with Defendant's cousin, co-defendant Eduardo Aguila and his wife. Annabel also testified that she was scared of Defendant.

         II. PROCEDURAL HISTORY

         Defendant Adrian Zitalpopoca-Hernandez was indicted on December 10, 2008. A Superceding Indictment was filed April 8, 2009. In that Indictment, Defendant was charged with the following crimes: Counts 1 & 2, Title 18, U.S.C., §§ 1591(a) (1) and (b)(1) - Sex Trafficking by Force, Fraud, or Coercion; Counts 3 & 4, Title 18, U.S.C., § 2422(a) - Persuasion or Coercion to Travel to Engage in Prostitution; Counts 5 & 6, Title 8, U.S.C., § 1328 - Harboring Aliens for Purposes of Prostitution; Counts 7 & 8, Title 8, U.S.C., § 1324(a)(2)(B)(ii) -Bringing Illegal Aliens into the United States for Financial Gain; Title 18, U.S.C., § 2 - Aiding and Abetting; Counts 9 & 10, Title 8, U.S.C., § 1324(a)(1)(A)(iii) and (v)(II) - Harboring Illegal Aliens and Aiding and Abetting; Count 11, Title 8, U.S.C., § 1326(a) - Deported Alien Found in the United States.

         A three-day trial was held in January 2010. The jury returned a guilty verdict in just 99 minutes. Defendant was found guilty on Counts one through ten. Count 11 was dismissed.

         This Court sentenced the Defendant to a total custodial term of 292 months. An appeal was filed. The Court of Appeals reversed the convictions on Counts 1, 2 & 4, and remanded for re-sentencing on Counts 3, 5, 6, 7, 8, 9, and 10. U.S. v. Zitalpopoca-Hernandez, 495 F. App'x 833, 835-36 (9th Cir. Nov. 7, 2012). The Court of Appeals determined there was insufficient evidence for the § 1591 convictions (Counts 1 & 2). It reasoned that although there was evidence that Zitalpopoca physically assaulted the women on numerous occasions in Mexico, there was no evidence of assaults in the United States and whatever assaults had occurred took place prior to 2008 (which was the beginning date specified in the Indictment). Id. The Court of Appeals also determined that there was insufficient evidence for one of the § 2422(a) convictions (Count 4) because, in its words,

[t]he evidence at trial demonstrated that it was Florencia who persuaded Zitlalpopoca to bring her to the United States, not the other way around. Contra United States v. Rashkovski, 301 F.3d 1133, 1135 (9th Cir. 2002) (sufficient evidence supported § 2422(a) conviction where defendant traveled to Russia, held recruiting meetings to promote prostitution in the United States, and arranged and paid for Russian women to travel to the United States to work as prostitutes).

Id. at 836. After remand, Defendant was re-sentenced for a total custodial term of 262 months. Another appeal followed and again the Court of Appeals reversed. It held that this time the Sentencing Guidelines were improperly computed by applying a sexual abuse enhancement under § 2241 and a vulnerable victim enhancement under U.S.S.G. § 3A1.1(b). U.S. v. Zitalpopoca-Hernandez, 632 F. App'x 335, 337 (9th Cir. Dec. 28, 2015). It was also error to impose mandatory restitution. Id. at 338. The case was again remanded for re-sentencing.

         On April 18, 2016, Defendant was re-sentenced: Counts 3, 5, and 7 - 100 months as to each count concurrently; Counts 6 and 8 - 100 months as to each count concurrently; Counts 9 and 10 - 60 months as to each count concurrently; Counts 3, 5, and 7 to run consecutive to Counts 6 and 8; Counts 9 and 10 to run concurrent as to all counts. In total, the Court imposed a sentence of 200 months. A third appeal followed and a third remand. U.S. v. Zitalpopoca-Hernandez, 709 F.App'x 428, 430 (9th Cir. Sept. 26, 2017).

         This remand is the reason for the present sentencing.

         The remand was occasioned by this Court's lack of explanation for rejecting an “unwarranted sentencing disparities” argument offered for the very first time at the end of a late-filed, last-minute pleading. Sentencing had been set for the morning of Monday, March 28, 2016. Defense counsel filed late the memorandum electronically on the afternoon of Thursday, March 24, 2016 at 4:15 p.m. (i.e., the Thursday before the Monday sentencing). A printed copy of the memorandum was delivered to chambers the following day. Faced with a newly-minted sentencing argument - to which the Government had no opportunity to respond - and with which the Court had little time to consider, the sentencing hearing was re-set for April 18, 2016.[4]

         On December 19, 2017, Defendant was again sentenced. The Court again imposed a 100 month sentence on each of Counts 3, 5, and 7, with the counts to run concurrently. The Court also imposed a 100 month sentence on each of Counts 6 and 8 with the counts to run concurrently. On Counts 9 and 10, the Court imposed 60 months each to run concurrently and to run concurrently with all other Counts. The concurrent 100 month sentences for Counts 3, 5, and 7, run consecutively to the 100 month sentences for Counts 6 and 8. The resulting total custodial sentence time remains 200 months.

         III. DEFENDANT'S “UNWARRANTED DISPARITIES” ARGUMENT

         The reason for this re-sentencing (as noted above) is that Defendant made a late-filed, last-second, newly-minted argument that this Court did not orally address during the sentencing hearing. That argument cobbled together a dozen lighter sentences in other local cases and argued that a 200-month sentence would be an “unwarranted disparity.”[5] The Court of Appeals remanded the case because, “[w]hen a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party's position.” Id. (quoting U.S. v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc)).

         A. Sentencing Memorandum Cases - Which One to Compare?

         At the December 19, 2017 sentencing hearing, the Court discussed at length, inter alia, the argument tethered to 18 U.S.C. § 3553(a)(6) that similarly situated defendants in other cases were given lighter sentences and that therefore Zitalpopoca's sentence represents an unwarranted disparity. Defendant's late-filed, last-minute, codicil about unwarranted disparities suffers from several glaringly obvious flaws.

         One problem is that Defendant's memorandum simply sets forth a list of cherry-picked cases that are unfamiliar to this Court (with one exception). The list is a selection of cases presided over by other judges. For each case, Defendant supplies his own description of charges and conduct and the sentence imposed. The sentences imposed range from time served to 153 months and there is no uniformity.[6]

         It is difficult to imagine which of those cases and/or sentences might serve as a sound basis for comparison or how a court would sort through them to reach a decision. For example, in one case there were 38 defendants. Two defendants received time served. One defendant was sentenced to 153 months. The rest were sentenced to varying amounts in between. Given these disparate sentences, Defendant's real argument is not that a 200 month total sentence is an unwarranted disparity, but rather, that it is higher than the highest sentence imposed in any of the selected cases. Of ...


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