United States District Court, S.D. California
MEMORANDUM OPINION ON RE-SENTENCING
ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE.
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. This Opinion memorializes and
supplements the oral findings and conclusions of the Court.
FACTS & TESTIMONY
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
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
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.
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.
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
learned that Defendant and another woman 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.
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.”
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. 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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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
told Annabel that if they came to the United States she would
be his only woman. Of course, that proved not to be
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.
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
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.
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.
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).
remand is the reason for the present sentencing.
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,
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.
DEFENDANT'S “UNWARRANTED DISPARITIES”
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.” 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
Sentencing Memorandum Cases - Which One to Compare?
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.
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.
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 ...