United States
v.
Benavente

United States District Court District of COLORADOJan 23, 2012
Case Number: 11-cr-00145-PAB-02 (D. Colo. Jan. 23, 2012)

Case Number: 11-cr-00145-PAB-02 USM Number: 80581-098

01-23-2012

UNITED STATES OF AMERICA v. RUBEN LICEA-GARCIA a/k/a Robert Benavente

Douglas L. Romero, Retained, Timothy D. Edstrom, Retained Defendant's Attorney


JUDGMENT IN A CRIMINAL CASE

Douglas L. Romero, Retained, Timothy D. Edstrom, Retained


Defendant's Attorney


THE
DEFENDANT:

[×] pleaded guilty to Counts Two and Three of the First Superseding Indictment

[ ] pleaded nolo contendere to Count(s) __________________ which was accepted by the court.

[ ] was found guilty on Count(s) __________________ after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

+-----------------------------------------------------------------------------+ ¦Title & Section ¦Nature of Offense ¦Offense Ended ¦Count ¦ +-----------------+-----------------------------------+---------------+-------¦ ¦18 U.S.C. §§ 922 ¦ ¦ ¦ ¦ ¦(g)(5)(A) ¦Possession of Firearms by an ¦03/16/11 ¦Two ¦ ¦ ¦Illegal Alien ¦ ¦ ¦ ¦and 924(a)(2) ¦ ¦ ¦ ¦ +-----------------+-----------------------------------+---------------+-------¦ ¦ ¦Conspiracy to Distribute and ¦ ¦ ¦ ¦21 U.S.C. §§ 841 ¦Possess with Intent to Distribute ¦ ¦ ¦ ¦(a)(1), (b)(1) ¦Less Than 50 Kilograms of ¦12/04/10 ¦Three ¦ ¦(D), and 846 ¦Marijuana, a Schedule I Controlled ¦ ¦ ¦ ¦ ¦Substance ¦ ¦ ¦ +-----------------------------------------------------------------------------+

The defendant is sentenced as provided in pages 2 through 8 of this judgment . The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

[ ] The defendant has been found not guilty on Count(s) __________________

[×] Counts remaining of the Indictments [ ] is [×] are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

January 19, 2012


Date of Imposition of Judgment


Philip A. Brimmer


Signature of Judge


Philip A. Brimmer, U.S. District Judge


Name and Title of Judge


IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: fifty-one (51) months as to each of Counts Two and Three, to be served concurrently.

[×] The court makes the following recommendations to the Bureau of Prisons:

Designation to a facility in Texas.

[×] The defendant is remanded to the custody of the United States Marshal.

[ ] The defendant shall surrender to the United States Marshal for this district:

[ ] at __________________ [ ] a.m. [ ] p.m. on
[ ] as notified by the United States Marshal.


[ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

[ ] before 12 p.m. on __________________ .
[ ] as notified by the United States Marshal.
[ ] as notified by the Probation or Pretrial Services Office.



RETURN

I have executed this judgment as follows:

Defendant delivered on ________________ to ________________ at________________, with a certified copy of this judgment.

__________________


UNITED STATES MARSHAL


By __________________


DEPUTY UNITED STATES MARSHAL


CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

+------------------------------------------+ ¦ ¦Assessment ¦Fine ¦Restitution ¦ +--------+------------+------+-------------¦ ¦TOTALS ¦$ 200.00 ¦$ 0.00¦$ 0.00 ¦ +------------------------------------------+

[ ] The determination of restitution is deferred until __________________ . An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.

[ ] The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid before the United States is paid.

+----------------------------------------------------------------------------+ ¦Name of Payee ¦Total Loss ¦Restitution Ordered ¦Priority or Percentage ¦ +---------------+-------------+---------------------+------------------------¦ ¦TOTALS ¦$ ¦$ ¦ ¦ +----------------------------------------------------------------------------+

Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.

[ ] Restitution amount ordered pursuant to plea agreement $ __________________

[ ] The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

[ ] The Court determined that the defendant does not have the ability to pay interest and it is ordered that:

[ ] the interest requirement is waived for the [ ] fine [ ] restitution.
[ ] the interest requirement for the [ ] fine [ ] restitution is modified as follows:


SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties are due as follows:

A [ ] Lump sum payment of $ __________________ due immediately, balance due

[ ] not later than __________________ , or
[ ] in accordance [ ] C, [ ] D [ ] E, or [ ] F below; or


B [×] Payment to begin immediately (may be combined with [ ] C, [ ] D. or [ ] f below); or

C [ ] Payment in equal __________________ (e.g., weekly, monthly, quarterly) installments of $ __________________ over a period of __________________ (e.g., months or years), to commence __________________ (e.g., 30 or 60 days) after the date of this judgment; or

D Payment in equal __________________ (e.g., weekly, monthly, quarterly) installments of $ __________________ over a period of __________________ (e.g., months or years), to commence __________________ (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or

E Payment during the term of supervised release will commence within __________________ (e.g., 30 or 60 days) after release from imprisonment. The Court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

F [ ] Special instructions regarding the payment of criminal monetary penalties:

Unless the Court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the Court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

[ ] Joint and Several

[ ] The defendant shall pay the cost of prosecution.

[ ] The defendant shall pay the following Court cost(s):

[ ] The defendant shall forfeit the defendant's interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and Court costs.

STATEMENT OF REASONS

I COURT FINDINGS ON PRESENTENCE INVESTIGATION REPORT

A [×] The Court adopts the presentence investigation report without change.

B [ ] The Court adopts the presentence investigation report with the following changes.

(Check all that apply and specify Court determination, findings, or comments, referencing paragraph numbers in the presentence report, if applicable.) (Use page 4 if necessary.)

1 [ ] Chapter Two of the U.S.S.G. Manual determinations by Court (including changes to base offense level, or specific offense characteristics):

2 [ ] Chapter Three of the U.S.S.G. Manual determinations by Court (including changes to victim-related adjustments, role in the offense, obstruction of justice, multiple Counts, or acceptance of responsibility):

3 [ ] Chapter Four of the U.S.S.G. Manual determinations by Court (including changes to criminal history category or scores, career offender, or criminal livelihood determinations):

4 [ ] Additional Comments or Findings (including comments or factual findings concerning certain information in the presentence report that the FederafBureau of Prisons may rely on when it makes inmate classification, designation,

C [ ] The record establishes no need for a presentence investigation report pursuant to Fed.R.Crim.P. 32. II COURT FINDING ON MANDATORY MINIMUM SENTENCE (Check all that apply.)

A [×] No Count of conviction carries a mandatory minimum sentence.

B Mandatory minimum sentence imposed.

C [ ] One or more Counts of conviction alleged in the indictment carry a mandatory minimum term of imprisonment, but the sentence imposed is below a mandatory minimum term because the Court has determined that the mandatory minimum does not apply based on

[ ] findings of fact in this case
[ ] substantial assistance (18 U.S.C. § 3553(e))
[ ] the statutory safety valve (18 U.S.C. § 3553(f))


III COURT DETERMINATION OF ADVISORY GUIDELINE RANGE (BEFORE DEPARTURES):

Total Offense Level: 23

Criminal History Category: II

Imprisonment Range: 51 to 63 months as to Count Two; 51 to 60 months as to Count Three

Supervised Release Range: 1 to 3 years as to Count Two; 2 to 3 years as to Count Three

Fine Range: $ 10,000 to $ 100,000

[×] Fine waived or below the guideline range because of inability to pay.

STATEMENT OF REASONS

IV ADVISORY GUIDELINE SENTENCING DETERMINATION (Check only one.)

A [×] The sentence is within an advisory guideline range that is not greater than 24 months, and the Court finds no reason to depart.

B [ ] The sentence is within an advisory guideline range that is greater than 24 months, and the specific sentence is imposed for these reasons. (Use page 4 if necessary.)

C [ ] The Court departs from the advisory guideline range for reasons authorized by the sentencing guidelines manual. (Also complete Section V.)

D [ ] The Court imposed a sentence outside the advisory sentencing guideline system. (Also complete Section VI.)

V DEPARTURES AUTHORIZED BY THE ADVISORY SENTENCING GUIDELINES (If applicable.)

A The sentence imposed departs (Check only one.):

[ ] below the advisory guideline range
[ ] above the advisory guideline range


B Departure based on
(Check all that apply.):

1 Plea Agreement (Check all that apply and check reason(s) below.):

[ ] 5K1.1 plea agreement based on the defendant's substantial assistance
[ ] 5K3.1 plea agreement based on Early Disposition or "Fast-track" Program
[ ] binding plea agreement for departure accepted by the Court
[ ] plea agreement for departure, which the Court finds to be reasonable
[ ] plea agreement that states that the government will not oppose a defense departure motion.


2 Motion Not Addressed in a Plea Agreement
(Check all that apply and check reason(s) below.):

[ ] 5K1.1 government motion based on the defendant's substantial assistance
[ ] 5K3.1 government motion based on Early Disposition or "Fast-track" program
[ ] government motion for departure
[ ] defense motion for departure to which the government did not object
[ ] defense motion for departure to which the government objected


3 Other

[ ] Other than a plea agreement or motion by the parties for departure (Check reason(s) below.):

C Reason(s) for Departure (Check all that apply other than 5K1.1 or 5K3.1.)

+-----------------------------------------------------------------------------+ ¦[]¦4A1.3 ¦Criminal History¦[]¦5K2.1 ¦Death ¦[]¦5K2.11¦Lesser Harm ¦ ¦ ¦ ¦Inadequacy ¦ ¦ ¦ ¦ ¦ ¦ ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦[]¦5H1.1 ¦Age ¦[]¦5K2.2 ¦Physical ¦[]¦5K2.12¦Coercion and ¦ ¦ ¦ ¦ ¦ ¦ ¦Injury ¦ ¦ ¦Duress ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦ ¦ ¦Education and ¦ ¦ ¦Extreme ¦ ¦ ¦Diminished ¦ ¦[]¦5H1.2 ¦Vocational ¦[]¦5K2.3 ¦Psychological ¦[]¦5K2.13¦Capacity ¦ ¦ ¦ ¦Skills ¦ ¦ ¦Injury ¦ ¦ ¦ ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦ ¦ ¦Mental and ¦ ¦ ¦Abduction or ¦ ¦ ¦ ¦ ¦[]¦5H1.3 ¦Emotional ¦[]¦5K2.4 ¦Unlawful ¦[]¦5K2.14¦Public Welfare ¦ ¦ ¦ ¦Condition ¦ ¦ ¦Restraint ¦ ¦ ¦ ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦ ¦ ¦Physical ¦ ¦ ¦Property ¦ ¦ ¦Voluntary ¦ ¦[]¦5H1.4 ¦Condition ¦[]¦5K2.5 ¦Damage or Loss¦[]¦5K2.16¦Disclosure of ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Offense ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦ ¦ ¦Employment ¦ ¦ ¦Weapon or ¦ ¦ ¦High-Capacity, ¦ ¦[]¦5H1.5 ¦Record ¦[]¦5K2.6 ¦Dangerous ¦[]¦5K2.17¦Semiautomatic ¦ ¦ ¦ ¦ ¦ ¦ ¦Weapon ¦ ¦ ¦Weapon ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦ ¦ ¦Family Ties and ¦ ¦ ¦Disruption of ¦ ¦ ¦Violent Street ¦ ¦[]¦5H1.6 ¦Responsibilities¦[]¦5K2.7 ¦Government ¦[]¦5K2.18¦Gang ¦ ¦ ¦ ¦ ¦ ¦ ¦Function ¦ ¦ ¦ ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦[]¦5H1.11¦Military Record,¦[]¦5K2.8 ¦Extreme ¦[]¦5K2.20¦Aberrant ¦ ¦ ¦ ¦Charitable ¦ ¦ ¦Conduct ¦ ¦ ¦Behavior ¦ +--+------¦Service, +--+------+--------------+--+------+---------------¦ ¦ ¦ ¦ ¦ ¦ ¦Criminal ¦ ¦ ¦Dismissed and ¦ ¦ ¦ ¦Good Works ¦[]¦5K2.9 ¦Purpose ¦[]¦5K2.21¦Uncharged ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Conduct ¦ +--+------+----------------+--+------+--------------+--+------+---------------¦ ¦ ¦ ¦Aggravating or ¦ ¦ ¦Victim's ¦ ¦ ¦Age or Health ¦ ¦[]¦5K2.0 ¦Mitigating ¦[]¦5K2.10¦Conduct ¦[]¦5K2.22¦of Sex ¦ ¦ ¦ ¦Circumstances ¦ ¦ ¦ ¦ ¦ ¦Offenders ¦ +---------------------------------------------------+--+------+---------------¦ ¦ ¦ ¦ ¦Discharged ¦ ¦ ¦[]¦5K2.23¦Terms of ¦ ¦ ¦ ¦ ¦Imprisonment ¦ +---------------------------------------------------+--+----------------------¦ ¦ ¦ ¦Other gu ¦ ¦ ¦ ¦ ¦ ¦ ¦[]¦ideline basis ¦ ¦ ¦ ¦(e.g., 2B1.1 ¦ ¦ ¦ ¦commentary) ¦ +-----------------------------------------------------------------------------+

D Explain the facts justifying the departure. (Use page 4 if necessary.)

STATEMENT OF REASONS

VI COURT DETERMINATION FOR SENTENCE OUTSIDE THE ADVISORY GUIDELINE SYSTEM (Check all that apply.)

A The sentence imposed is (Check only one.):

[ ] below the advisory guideline range
[ ] above the advisory guideline range


B Sentence imposed pursuant to (Check all that apply.):

1 Plea Agreement (Check all that apply and check reason(s) below.):

[ ] binding plea agreement for a sentence outside the advisory guideline system accepted by the Court
[ ] plea agreement for a sentence outside the advisory guideline system, which the Court finds to be reasonable
[ ] plea agreement that states that the government will not oppose a defense motion to the Court to sentence outside the advisory guideline system


2 Motion Not Addressed in a Plea Agreement (Check all that apply and check reason(s) below.):

[ ] government motion for a sentence outside of the advisory guideline system
[ ] defense motion for a sentence outside of the advisory guideline system to which the government did not object
[ ] defense motion for a sentence outside of the advisory guideline system to which the government objected


3 Other

[ ] Other than a plea agreement or motion by the parties for a sentence outside of the advisory guideline system (

C Reason(s) for Sentence Outside the Advisory Guideline System (Check all that apply.)

[ ] the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1)
[ ] to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense (18 U.S.C. § 3553(a)(2)(A))
[ ] to afford adequate deterrence to criminal conduct (18 U.S.C. § 3553(a)(2)(B))
[ ] to protect the public from further crimes of the defendant (18 U.S.C. § 3553(a)(2)(C))
[ ] to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner (18 U.S.C. § 3553(a)(2)(D))
[ ] to avoid unwarranted sentencing disparities among defendants (18 U.S.C. § 3553(a)(6))
[ ] to provide restitution to any victims of the offense (18 U.S.C. § 3553(a)(7))


D Explain the facts justifying a sentence outside the advisory guideline system. (Use page 4 if necessary.)

STATEMENT OF REASONS

VII COURT DETERMINATIONS OF RESTITUTION

A [×] Restitution Not Applicable.

B Total Amount of Restitution: __________________

C Restitution not ordered (Check only one.):

1 For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because the number of identifiable victims is so large as to make restitution impracticable under 18 U.S.C. § 3663A(c)(3)(A).

2 For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because determining complex issues of fact and relating them to the cause or amount of the victims' losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim would be outweighed by the burden on the sentencing process under 18 U.S.C. § 3663A(c)(3)(B).

3 [ ] For other offenses for which restitution is authorized under 18 U.S.C. § 3663 and/or required by the sentencing guidelines, restitution is not ordered because the complication and prolongation of the sentencing process resulting from the fashioning of a restitution order outweigh the need to provide restitution to any victims under 18 U.S.C. § 3663(a)(1)(B)(ii).

4 [ ] Restitution is not ordered for other reasons. (Explain.)

D [ ] Partial restitution is ordered for these reasons (18 U.S.C. § 3553(c)):

VIII ADDITIONAL FACTS JUSTIFYING THE SENTENCE IN THIS CASE (If applicable.)

Sections I, II, III, IV, and VII of the Statement of Reasons form must be completed in all felony cases.