United States v. Avila-Medina

844 F. Supp. 427, 1994 U.S. Dist. LEXIS 3089, 1994 WL 50079
CourtDistrict Court, N.D. Illinois
DecidedFebruary 15, 1994
DocketNo. 94 C 183, 93 CR 079
StatusPublished

This text of 844 F. Supp. 427 (United States v. Avila-Medina) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Avila-Medina, 844 F. Supp. 427, 1994 U.S. Dist. LEXIS 3089, 1994 WL 50079 (N.D. Ill. 1994).

Opinion

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court is the petitioner’s motion under 28 U.S.C: § 2255 to reduce a sentence handed down by this court in United States v. Jesus Avila-Medina, 93 CR 79-1. In that case, petitioner pleaded guilty to one count of conspiracy to produce false identification cards in violation of 18 U.S.C. § 371. This court sentenced him to prison for one year and one day. Subsequently, respondent notified petitioner that evidence relied on by this court in applying a six-point sentencing enhancement was possibly unreliable. For the reasons set forth below, the court finds that the six-point guideline enhancement was based on unreliable information and petitioner’s motion is granted.

I. BACKGROUND

Except when indicated otherwise, the following facts are from the Government’s Version of the Case, attached to the Pre-Sentence Investigation Report (“PSI”) dated July 27, 1993. On June 5, 1992, Jesus Avila-Medina (“Avila”) offered to sell counterfeit alien registration and social security cards to an Immigration and Naturalization Service (“INS”) informant. The informant paid Avila for the documents and told Avila that his “cousin,” INS agent Gus Meza (“Meza”), would pick them up the next day. On June 6, Meza picked up the documents from Avila. Meza bought additional documents from Avila on June 20, 1992 and August 1, 1992.

On January 30, 1993, Meza and INS agent Gilbert Solis (“Solis”) met with Avila at his residence to buy another counterfeit registration card and social security card. Avila asked Meza to drive him to the residence of Manuel Marquez to place an order with a new source for documents. During the car trip, Meza and Solis allege that Avila stated that the new source received high quality counterfeit documents in large shipments from California. Government’s Version of the Case, at 3. The new source was Jose Marquez (“J. Marquez”). In Avila’s Statement of Offense (attached to the PSI), he admitted knowing J. Marquez “for awhile” and that J. Marquez “fixed” papers. Id. at 1. He admitted that J. Marquez told him to “take them [the customers] to me” and Avila admitted that he did this for J. Marquez “only now and then.” Id. Later, on January 30, Avila sold a counterfeit alien registration card and a counterfeit social security card to Meza for $160.

On February 1, 1993, on Meza’s behalf, Avila telephoned Manuel Marquez (J. Mar[429]*429quez’ cousin) to place an order with J. Marquez for another registration and social security card. Later that day, J. Marquez delivered the documents to Avila’s residence. Avila sold these documents to Meza for $150. INS agents subsequently arrested Avila and J. Marquez. During the search of J. Marquez’ apartment, INS agents found 279 counterfeit alien registration cards and 55 counterfeit social security cards.

II. PROCEDURAL HISTORY

Avila pleaded guilty to one count of Conspiracy to Produce False Identification Cards in violation of 18 U.S.C. § 371. In the plea agreement, Avila stipulated for purposes of computing his sentencing base offense level that he sold counterfeit documents on the above dates.

This court sentenced Avila to a prison term of twelve months and one day. The court applied a six-point base offense level enhancement from the United States Guidelines Commission, Guidelines Manual, § 2L2.1(b)(2)(C) (Nov.1992) (“Guidelines”). This court concluded that it was reasonably foreseeable to Avila that J. Marquez possessed all the counterfeit documents found in his bedroom. The court relied on three facts for this finding: that Avila admitted going to J. Marquez for papers more than once; that Avila admitted that J. Marquez instructed him to “Take them [customers] to me;” and the statement in the PSI that Avila told agents Meza and Solis his new source of supply received counterfeit documents in large shipments from California. Avila denied making this statement. During the preparation for the trial of co-defendant M. Marquez, the assistant U.S. Attorney trying the case determined that, with respect to statements relating to the receipt of documents from California, “Agent Meza could not recall whether the defendant made the statements” and that “Agent Solis recalled that the defendant had made the statements, but could not recall whether the defendant had made the statements before or after January 30, 1993.” Government’s Response to Defendant’s Motion, at 2-3. After being notified of this, Avila filed the present motion under 28 U.S.C. § 2255 to reconsider the six-point base level enhancement in his sentence.

III. DISCUSSION

The main issue in this case is what weight the district court should give to a statement relied upon for sentencing enhancement when the reliability of that statement is subsequently put in doubt by the government.

A defendant has a due process right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct, 589, 591-92, 30 L.Ed.2d 592 (1972); United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir.1992). When a defendant challenges an allegation in the PSI, he has the burden of producing some evidence beyond his own testimony that calls into question the reliability or correctness of the facts. United States v. Isirov, 986 F.2d 183, 186 (7th Cir.1993); Coonce, 961 F.2d at 1280. This evidence must bear sufficient indicia of reliability. Coonce, 961 F.2d at 1280; Guidelines § 6A1.3(a). If the defendant meets his burden, “the burden of persuasion then shifts back to the prosecution, who in turn must convince the court that the facts presented by the government are actually true.” Coonce, 961 F.2d at 1280.

In his motion, Avila alleges that the government’s reasons for doubting Meza’s statement shows that the statement is unreliable. This allegation satisfies Avila’s burden because the prosecutor, not Avila, called into doubt the reliability of Meza’s statement.

The government, thus, has the burden to convince the court that the facts presented by the . government are actually true. Coonce, 961 F.2d at 1280. The government must prove the veracity of the statement by a preponderance of the evidence since the severity of Avila’s sentence is linked to the existence or nonexistence of exculpatory or mitigating facts. McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986); United States v. Schuster, 948 F.2d 313, 315 (7th Cir.1991). Since the government prosecutor doubted the reliability of Meza’s and Solis’ statement for trial, the government must now prove the truth of this statement by the preponderance of the evidence.

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Related

United States v. Tucker
404 U.S. 443 (Supreme Court, 1972)
McMillan v. Pennsylvania
477 U.S. 79 (Supreme Court, 1986)
United States v. James E. Schuster
948 F.2d 313 (Seventh Circuit, 1992)
United States v. Randall E. Coonce
961 F.2d 1268 (Seventh Circuit, 1992)
United States v. Louis Isirov
986 F.2d 183 (Seventh Circuit, 1993)
United States v. Edwards
945 F.2d 1387 (Seventh Circuit, 1991)
Love v. United States
503 U.S. 973 (Supreme Court, 1992)

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Bluebook (online)
844 F. Supp. 427, 1994 U.S. Dist. LEXIS 3089, 1994 WL 50079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-avila-medina-ilnd-1994.