Joao Borgas Defense SentencingMemo

8/4/2019 Joao Borgas Defense SentencingMemo

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA )

)v. ) Criminal No. 10-CR-430) Hon. Claude M. Hilton

JOAO LUIS HENRIQUES BORGAS, ) Sentencing Date: April 22, 2011)

Defendant. )

DEFENDANTS POSITION ON SENTENCING FACTORS

Pursuant to Rule 32 of the Federal Rules of Criminal Procedure, Section 6A1.3 of

the United States Sentencing Guidelines (the Guidelines or U.S.S.G.), and this

Courts Policy Regarding Procedures to be Followed in Sentencing, the defendant, Joao

Borgas, through counsel, states that he has received and reviewed the Presentence

Investigation Report (PSR) prepared in this case and submits the following corrections,

objections, and argument.

CORRECTIONS TO THE PSR

Mr. Borgas does not have any corrections to the PSR.

BACKGROUND

On January 13, 2011, Mr. Borgas pled guilty to count one of the indictment

charging him with importation of cocaine in violation of 21 U.S.C. 952(a). The

maximum penalties for this offense are a mandatory minimum term of imprisonment of

ten (10) years and a maximum term of life, a fine of $10 million and at least five (5) years

of supervised release.

The PSR calculates the advisory Guidelines range at 51 to 63 months of

imprisonment (Offense Level Total 24 at CHC I) based upon a total drug weight of 16.4

Case 1:10-cr-00430-CMH Document 32 Filed 04/14/11 Page 1 of 12 PageID# 217


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kilograms of cocaine. Mr. Borgas is only personally responsible for 10.4 kilograms, PSR

15(4); however the Guidelines range attributes to him 6 additional kilograms which

were illegally imported by another courier (Alexandra Martin) the day before Mr. Borgas

was arrested.1

PSR 15(6). Attributing this additional weight to Mr. Borgas is correct as

a Guidelines matter. But in determining a just sentence under18 U.S.C. 3553(a), it is

unfair to punish Mr. Borgas for Ms. Martins actions. For this reason, and others stated

below, Mr. Borgas respectfully requests that the Court impose a period of imprisonment

of no more than 46 months imprisonment, which amounts to the low-end of the

Guidelines range considering only the 10.4 kilograms he personally carried.

2

Alternatively, Mr. Borgas requests that the Court impose no more than the low-end of the

Guidelines range (51 months).3

1 Ms. Martin also pled guilty and was sentenced by Judge James C. Cacheris onMarch 18, 2011 to 51 months of imprisonment (the low-end of her range) and three yearsof supervised release.

2 Considering only his own drug weight, Mr. Borgas Offense Level Total would be23 (after the reduction for acceptance of responsibility), which results in a range of 46 to57 months at CHC I.

3 As Mr. Borgas qualifies for sentencing under the safety valve provision of 18U.S.C. ' 3553(f), the Court has the authority to impose a sentence below the ten yearmandatory minimum. The safety valve provision survives the Supreme Court=s decisionin United States v. Booker, 543 U.S. 220 (2005). SeeUnited States v. Cherry, 366 F.Supp.2d 372, 376 (E.D. Va. 2005) (Jackson, D.J.); United States v. Cardenas-Juarez, 469F.3d 1331, 1334 (9th Cir. 2006); United States v. Chambers, 2008 WL 687110, *3 (E.D.Wis. 2008); United States v. Boyd, 496 F. Supp.2d 977, 985 (E.D. Ark. 2007); UnitedStates v. Duran, 383 F. Supp.2d 1345, 1347 (D. Utah 2005). Indeed, since the Guidelinesare advisory, the Court has the power to sentence below the Guideline range in this case.See Boyd, 496 F. Supp.2d at 985 (sentencing a safety-valve eligible defendant to belowthe Guideline range);Duran, 383 F. Supp.2d at 1347 (stating that the Guideline range isadvisory in safety-valve cases postBooker).



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SENTENCING ARGUMENT

Mr. Borgas has pled guilty to one count of importing five kilogram or more of

cocaine in violation of Title 21 U.S.C. 952(a). Although the Guidelines recommend 51

months of minimum imprisonment, a below-Guidelines sentence of no more than 46

months would be more appropriate here because:

Combining his drug weight with Ms. Martins is unfair as the two were

independent actors, both mules in a larger scheme, with neither benefitting the

other;

Mr. Borgas never intended the drugs to be distributed in the U.S.;

His deportation following imprisonment eliminates any public threat;

He is a hard-working family man, with no prior criminal record, who fell on

dire financial problems and made a one-time critical error;

He is non-violent man and his crime was non-violent; and

He accepts responsibility for his criminal conduct and is deeply remorseful.

I. The Sentencing Factors

Congress requires the courts to impose the least amount of imprisonment

necessary to accomplish the sentencing purposes espoused in 18 U.S.C. 3553(a). The

factors to consider include: (a) the nature and circumstances of the offense and the

history and characteristics of the defendant; (b) the kinds of sentences available; (c) the

advisory guideline range; (d) the need to avoid unwarranted sentencing disparities; (e) the

need for restitution; and (f) the need for the sentence to reflect the following: the

seriousness of the offense, promotion of respect for the law and just punishment for the

offense, provision of adequate deterrence, protection of the public from future crimes and



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providing the defendant with needed educational or vocational training, medical care, or

other correctional treatment. See 18 U.S.C. 3553(a).

The Sentencing Guidelines are simply an advisory tool to be considered alongside

other statutory considerations set forth in 18 U.S.C. 3553(a). Kimbrough v. United

States, 552 U.S. 85 (2007); Gall v. United States, 552 U.S. 38 (2007). The Guidelines

cannot be used as a substitute for a sentencing courts independent determination of a just

sentence based upon consideration of the statutory sentencing factors. Nelson v. United

States, 555 U.S. ___, 129 S. Ct. 890, 892 (2009); Spears v. United States, 555 U.S. ___,

129 S. Ct. 840 (2009).

The Supreme Court cautioned inNelson that [o]ur cases do not allow a

sentencing court to presume that a sentence within the applicable Guidelines range is

reasonable and that the Guidelines are not only not mandatory on sentencing courts;

they are also not to bepresumedreasonable. 129 S. Ct. at 892 (emphasis in original).

Sentencing courts commit legal error by using a Sentencing Guidelines range as a default

to be imposed unless a basis exists to impose a sentence outside that range.

II. A Below-Guidelines Sentence of Not More than 46 Months of Imprisonment isAppropriate in This Case.

A. The Offense Conduct

In a Statement of Facts filed on January 13, 2011, Mr. Borgas admitted to the

offense conduct. In sum, Mr. Borgas was a mule recruited on a one-time trip to

smuggle drugs from Buenos Aires to Amsterdam by an international drug ring. On

September 21, 2010, Mr. Borgas arrived at Dulles International airport on a layover,

having left Buenos Aires to get to Amsterdam. On the flight, he had checked a suitcase

containing approximately 10.4 kilograms of cocaine. On his way to Buenos Aires, he



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met a Ms. Alexandra Martin, and it was reasonably foreseeable to him that they would

both be carrying drugs as mules. The combine weight of their cocaine was 16.4

kilograms. PSR Worksheet A.

B. Mr. Borgas Background and Character

Mr. Borgas is a 26 year-old Portuguese national, one of three children born to

Carla Henriques, a fish vendor, now 47 years old, and David Borgas, a construction

worker, now 48 years old, both of Portugal. He has two sisters, both also living in

Portugal. His father is an alcoholic and due in large part to difficulties from this disease,

his parents divorced when he was five years old. He grew up with his mother, and sees

his father rarely, usually only when he is in trouble for drinking. Mr. Borgas does not

have a close relationship with his father.

Mr. Borgas grew up poor and attended school only until the ninth grade when he

quit to begin working full time. He became an early teenage father and worked to

support his daughter, who is now 8 years old.

When he turned 18, Mr. Borgas went to work with his mother at a local fish

market in Lisbon, Portugal, where they would buy fish from the boats and resell them at

the open-air market. After a year, he got his own table, next to his mothers and

grandmothers tables, and started selling his own fresh seafood and fish. For about three

years, his business did relatively well, and he was able to provide for his fianc, Rebecca

Baptista, age 30, and their three children (two daughters and a son, now ages 8, 7, and 3).

(Photographs of Mr. Borgas family are attached at Tab 1).

But in the last few years, competition from large-scale supermarkets began to eat

into Mr. Borgas business. The high-volume supermarkets made it difficult for him to



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compete, and he hit hard times financially, falling behind on his payments. From making

about $2,700 a month in better times, his business slowed to only about $1,600 a month.

Although he worked harder and harder, with the global and Portuguese economy

meltdown, he could not make ends meet. He found himself financially desperate.

During this time, he met someone at a party, who told him that quick money can

be made by acting as a courier to smuggle drugs. Although Portugal had officially

abolished all criminal penalties for personal possession of drugs in 2001, Mr. Borgas

knew that importing or selling drugs was still highly illegal and wrong. He had only

smoked marijuana a few times, first time at age 16, and drinks rarely, even at parties.

PSR 39. He has never tried any hard drugs such as cocaine or methamphetamine and

has never dealt drugs. But with the lure of a quick payment and feeling financially

desperate, Mr. Borgas made a profoundly critical mistake and decided to be a courier this

one time. He regrets this decision with every fiber of his being.

Owing to his naivety and complete inexperience, Mr. Borgas did not even know

what type of drug or how much he would be carrying, where the drugs would be

smuggled from or to, or even how much he would be paid. He was told that he would be

carrying only a small amount of drugs. He was just told to meet his contact at the airport

in Portugal, where he was given a ticket and boarded a flight to Amsterdam.

Mr. Borgas stayed in Amsterdam for a few days before boarding a flight to

Buenos Aires. On his flight from Amsterdam to Buenos Aires, he first met Ms. Martin

and learned that she too was to smuggle drugs as a mule. They stayed at the same hotel

in Buenos Aires and waited for someone to contact them. Mr. Borgas had no idea whom



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he would meet, when he would board a return flight, or what he was to do after he

returned to Amsterdam. He was given only a cell phone and asked to wait in a hotel.

After several days of waiting, Mr. Borgas met an unnamed woman who handed

him a pile offolded mens shirts, which he was told to insert into his bag. He boarded a

flight to Amsterdam, with a layover at Dulles Airport. The woman who gave him the

shirts also gave him his pre-purchased ticket, and he only deplaned at Dulles to switch to

a connecting flight to Amsterdam. Before being arrested, he had not even seen with his

own eyes the drugs hidden between the shirts. Prior to this layover trips from Amsterdam

to Buenos Aires and back, he had never set foot in the United States.

Mr. Borgas was a mule, a courier with no detailed knowledge of the workings of

the smuggling operation. He is continuing to fully cooperate with the government and

has met with them and will continue to meet with them to help in arresting any of the

others involved in the smuggling ring.

Mr. Borgas is a gentle person, well liked by friends and acquaintances. He has

never been arrested before, and has no criminal record. PSR 24-28. He is a loving and

devoted father to his three children. He has never been violent and is scared and afraid to

go to prison. He is worried how his family will survive financially without him. He

realizes that he will not be there for his children while he is in prison. He is deeply

remorseful, and he wishes that he could undo what he did.

C. The Guidelines Range Should be Accorded Lesser Weight than the OtherFactors Under 18 U.S.C. 3553(a)

The Guidelines recommend a low-end sentence of 51 months of incarceration.

Considering the other 3553(a) factors, a period of incarceration of no more than 46

months is more appropriate.



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1. Unfair to Combine Drug Weight With Ms. Martin. As noted, theGuidelines combine the total drug weights for Mr. Borgas and Ms. Martin. Although Mr.

Borgas is certainly responsible for the cocaine he imported (10.4 kilograms), he had no

idea how much Ms. Martin would or did carry, until after he was arrested. He had only

met Ms. Martin by happenstance on his flight to Buenos Aires. He did not know her

before, and the only reason he met her is because their handlers put them together. Mr.

Borgas and Ms. Martin were independent actors, who happened to cross paths. Mr.

Borgas did not benefit in any manner from Ms. Martins actions, and Ms. Martin did not

benefit in any manner from Mr. Borgas actions.

2. A Good, Hard-Working, Family Man. Mr. Borgas is a gentle and kindman. He grew up poor, and his parents divorced when he was 5 because his father is an

alcoholic. He began working full-time at age 15 to support his family and attended

school through the ninth grade. He currently owns a table at a famous open-air fish

market in Lisbon, Portugal, which he operates next to his mothers and grandmothers

tables. See clippings attached at Tab 2. He is well liked by his friends and

acquaintances.

3. A Mule in a Larger Ring. Mr. Borgas was lured as a mule by aninternational drug ring. He made a monumental mistake in deciding to act as a mule by

the lure of quick money. He did not seek out the criminal opportunity, he did not design

it, or in any manner coordinate or organize it. He was approached when he was

vulnerable and in a bad financial state by people who sought to exploit him. Other than

his Portuguese contact, he did not know where he was going, when or how the smuggling



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was to unfold or take place, or whom he would meet. He did not even purchase the

tickets for his flights. He met several people, but only briefly each time.

4. No Prior Criminal Record. Mr. Borgas has no criminal record, either inPortugal, where he has lived his entire life, or here. He has never been to the United

States prior to his one and only trip. He was never involved in selling drugs or trafficking

of drugs of any kind. The only drug that he has ever tried is marijuana, which he has

used only occasionally over the years. He has never tried any other drugs. PSR 39.

5. Never Intended to Distribute Drugs in the United States. The drugs wereintended for Amsterdam, and Dulles was merely a connecting destination. Further, Mr.

Borgas did not purchase his airline tickets, and he does not even know why his flight

even had to make a connection at Dulles. He never intended for any of the drugs to be

distributed or sold in the United States.

6. Deportation After Incarceration - No Public Threat From Mr. Borgas.There is a lessened need to protect the public against Mr. Borgas given that he will be

deported upon serving his sentence. PSR 8. He will not be allowed to reenter the

United States. Cf. United States v. Ramirez-Ramirez, 365 F. Supp. 2d 728, 733 (E.D. Va.

2005) (Lee, D.J.) (noting the decreased need to protect the public from further crimes of

defendant when he will ultimately be removed and sent out of the country); United

States v. Biheiri, 356 F. Supp. 2d 589, 603 (E.D. Va. 2005) (Ellis, D.J.) (observing that

the goal of protecting the public was of little import where the defendant was going to

be deported to Egypt immediately following his release from custody). Further, the risk

of recidivism is low given Mr. Borgas sincere remorse and acceptance of responsibility.



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7. Non-Violent Offense. Without lessening the gravity of the offense andwhile acknowledging the societal damage from drug trafficking, Mr. Borgas did not

physically harm anyone. Nor was he found in possession of any dangerous weapons.

8. Remorse. Mr. Joao Borgas accepts responsibility for his criminal conductand is contrite. When arrested at Dulles Airport, he immediately acknowledged fault,

fully cooperated with the authorities, and signed a confession. He continues to show

remorse through his guilty plea. In his letter to the Court at Tab 3, he admits that he

committed a grave wrong and that he is deeply sorry.

9.

Difficulty on His Family in Portugal. Mr. Borgas incarceration has been

hard on him and his family. As attested to by the submitted letters at Tab 4, Mr. Borgas

is a devoted father to his three children. He is a productive, well-liked, member of his

community and a hard worker. His hope is that the Court will allow him to return home

to his family as quickly as possible.

In sum, for the reasons stated, a below-Guidelines sentence of no more than 46

months imprisonment is enough to reflect the seriousness of the offense, promote respect

for the law, provide a just punishment, and protect the public from further crimes of the

defendant.

CONCLUSION

For the foregoing reasons, Mr. Borgas asks the Court to impose a sentence of no

more than 46 months of imprisonment and not to impose any fine or costs given his lack

of financial resources.

Respectfully submitted,

JORGE HENRIQUES BORGASBy Counsel



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/s/ .Kenneth P. TroccoliVirginia Bar Number 27177Attorney for the defendant

Assistant Federal Public Defender1650 King Street, Suite 500Alexandria, Virginia 22314(703) 600-0870 (telephone)(703) 600-0880 (fax)[email protected] (e-mail)

/s/ .John J. Yim, Esq.Virginia Bar Number 68908Pro Bono Co-Counsel for defendant

John J. Yim & Associates, LLC7600 Leesburg Pike, Suite 470 EastFalls Church, VA 22043(703) 749-0500 (telephone)(703) 842-8195 (fax)[email protected](e-mail)

CERTIFICATE OF SERVICE

I hereby certify that on April 14, 2011, I will electronically file the foregoingpleading with the Clerk of the Court using the CM/ECF system, which will then send anotification of such filing (NEF) to the following:

Michael P. BenAry, Esq.Assistant United States Attorney2100 Jamieson AvenueAlexandria, Virginia 22314(703) 299-3700Michael.Ben'[email protected]

Pursuant to the Electronic Case Filing Policies and Procedures, a courtesy copy ofthe foregoing pleading will be delivered to Chambers within one business day of theelectronic filing.

/s/ .Kenneth P. TroccoliVirginia Bar Number 27177Attorney for the defendant

mailto:[email protected]:[email protected]:[email protected]


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Assistant Federal Public Defender1650 King Street, Suite 500Alexandria, Virginia 22314(703) 600-0870 (telephone)(703) 600-0880 (fax)

[email protected] (e-mail)


Documents

Joao Borgas Defense SentencingMemo