Evidence of Subsequent Crime Properly Admitted as 404(b)
U.S. v. Mares, 2006 WL 752017 (3/24/06) - The 10th affirms the defendant's conviction and sentence. The 10th teaches a valuable lesson: it's not a good idea to subsequently commit the same crime you're charged with committing. The d.ct. did not abuse its discretion in allowing the government to present evidence the border patrol found 43 kilograms of marijuana in the gas tank of a car the defendant was driving when she was being charged with possessing with intent to distribute 32.5 kilograms of marijuana the border patrol found in the gas tank of a car she was driving. The evidence was admissible under 404(b) to show the defendant willingly and knowingly engaged in a drug trafficking scheme, rather than being unknowingly duped by the car's owner. The offenses were similar in the method of concealment, the defendant's claim that she was borrowing a car that had no available registration, the fact that she had a prepared cover story and she blamed the same mastermind. Subsequent conduct is admissible under 404(b). The difference in time (one year) and place (just south of Alamogordo vs. El Paso) did not render the evidence meaningfully less probative.
The d.ct. correctly refused to give a minor role reduction based on the greater planning involved than with respect to the usual defendants bringing the contraband on a short turn-around trip to Las Cruces and the defendant's statement that she was "hired" to do the drug run. The d.ct.'s obstruction of justice enhancement for perjury at trial was also okey dokey. The 51 month sentence was reasonable, given the presumption of reasonableness of a guideline sentence, despite the defendant's circumstances, including having two young children, one of whom had health problems, and her own medical problems. The 10th made two important observations. One, to improve a defendant's chances on reasonableness review, it is very important that the defendant frame her request for a lower than guideline sentence, not only in terms of a departure, but also in terms of how the mitigating factors fit within the ยง 3553(a) framework. Two, the 10th stated the d.ct. may have been able to justify a nonguideline sentence on the basis of the defendant's personal history and characteristics. But, the d.ct. was not obligated to give such a sentence. So, reasonableness clearly is a range and the 10th ignores the parsimony requirement in its reasonableness review.
The d.ct. correctly refused to give a minor role reduction based on the greater planning involved than with respect to the usual defendants bringing the contraband on a short turn-around trip to Las Cruces and the defendant's statement that she was "hired" to do the drug run. The d.ct.'s obstruction of justice enhancement for perjury at trial was also okey dokey. The 51 month sentence was reasonable, given the presumption of reasonableness of a guideline sentence, despite the defendant's circumstances, including having two young children, one of whom had health problems, and her own medical problems. The 10th made two important observations. One, to improve a defendant's chances on reasonableness review, it is very important that the defendant frame her request for a lower than guideline sentence, not only in terms of a departure, but also in terms of how the mitigating factors fit within the ยง 3553(a) framework. Two, the 10th stated the d.ct. may have been able to justify a nonguideline sentence on the basis of the defendant's personal history and characteristics. But, the d.ct. was not obligated to give such a sentence. So, reasonableness clearly is a range and the 10th ignores the parsimony requirement in its reasonableness review.
posted by Anonymous at 3:05 PM
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