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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA v. JOAO LUIS HENRIQUES BORGAS, Defendant. ) ) ) ) ) ) )

Criminal No. 10-CR-430 Hon. Claude M. Hilton Sentencing Date: April 22, 2011

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

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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 under 18 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

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

Considering only his own drug weight, Mr. Borgas Offense Level Total would be 23 (after the reduction for acceptance of responsibility), which results in a range of 46 to 57 months at CHC I.
2

3 As Mr. Borgas qualifies for sentencing under the safety valve provision of 18 U.S.C. ' 3553(f), the Court has the authority to impose a sentence below the ten year mandatory minimum. The safety valve provision survives the Supreme Court=s decision in United States v. Booker, 543 U.S. 220 (2005). See United States v. Cherry, 366 F. Supp.2d 372, 376 (E.D. Va. 2005) (Jackson, D.J.); United States v. Cardenas-Juarez, 469 F.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); United States v. Duran, 383 F. Supp.2d 1345, 1347 (D. Utah 2005). Indeed, since the Guidelines are 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 below the Guideline range); Duran, 383 F. Supp.2d at 1347 (stating that the Guideline range is advisory in safety-valve cases post Booker). 2

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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 in Nelson 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 be presumed reasonable. 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 is Appropriate 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 4

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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 of folded 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 Other Factors 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. 7

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1.

Unfair to Combine Drug Weight With Ms. Martin. As noted, the

Guidelines 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 kind

man. 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 an

international 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 in

Portugal, 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 were

intended 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 and

while 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 conduct

and 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 BORGAS By Counsel 10

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/s/ . Kenneth P. Troccoli Virginia Bar Number 27177 Attorney for the defendant Assistant Federal Public Defender 1650 King Street, Suite 500 Alexandria, Virginia 22314 (703) 600-0870 (telephone) (703) 600-0880 (fax) Kenneth_Troccoli@fd.org (e-mail) /s/ . John J. Yim, Esq. Virginia Bar Number 68908 Pro Bono Co-Counsel for defendant John J. Yim & Associates, LLC 7600 Leesburg Pike, Suite 470 East Falls Church, VA 22043 (703) 749-0500 (telephone) (703) 842-8195 (fax) jyim@yimassociates.com (e-mail)

CERTIFICATE OF SERVICE I hereby certify that on April 14, 2011, I will electronically file the foregoing pleading with the Clerk of the Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Michael P. BenAry, Esq. Assistant United States Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314 (703) 299-3700 Michael.Ben'Ary2@usdoj.gov Pursuant to the Electronic Case Filing Policies and Procedures, a courtesy copy of the foregoing pleading will be delivered to Chambers within one business day of the electronic filing.

/s/ Kenneth P. Troccoli Virginia Bar Number 27177 Attorney for the defendant 11

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Assistant Federal Public Defender 1650 King Street, Suite 500 Alexandria, Virginia 22314 (703) 600-0870 (telephone) (703) 600-0880 (fax) Kenneth_Troccoli@fd.org (e-mail)

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