01 June 2010

Colorado's U.S. Attorney on Mandatory Minimums

Colorado U.S. Attorney David Gaouette said the vast majority of drug caes in the district involved mandatory-minimum sentencing. He said prosecutors are not targeting low-level drug users.

"We deal with the large-sacle drug trafficking organizations or large-scale quantity drug transactions," he said.

From the Denver Post.

Gaouette was interviewed in the context of the case of Luisa Baylon:

Luisa Baylon waited in a truck with her 1-month-old son while agents say they saw her husband hand a kilo of cocaine over to a buyer in the parking lot of a McDonald's in Commerce City.

Now she could face a mandatory minimum of five years and up to 40 years in federal prison if she is convicted by a jury this week in Denver. . . .

As for Baylon, she does not have a criminal history that makes her eligible for a "safety valve," allowing Judge John L. Kane to consider a sentence below the mandatory 5-year minimum if she is convicted.

Baylon, 20, who has pleaded not guilty, found herself facing significant time because of the quantity of the drugs.

Her 21-year-old husband, Armando Jaramillo Aguilar, was charged with distribution of a kilo of cocaine. A warrant is out for his arrest.

Agents from the Metro Gang Task Force interviewed the couple separately, and Aguilar admitted selling the kilo in hopes of making $23,000, court records show.

Baylon admitted to agents that she was with her husband Oct. 14 when he went to pick up the cocaine and when he delivered it while she waited in their truck with her son, according to an affidavit.

She also told the agents she was present during 40 to 50 transactions of cocaine involving her husband over a two-month period, the records show.

So, apparently, knowing that your husband is a part-time drug dealer while carrying out domestic life with your husband qualifies you for a mandatory minimum sentence of five years in prison if you have a prior criminal record.

Colorado's state legislature significantly reduced both minimum and maximum sentences for drug dealing this year, and Colorado judges have more discretion to offer leniency in the face of a mandatory minimum sentence than those in federal court.

Realistically, the federal prosecutors are likely to offer leniency for the wife in exchange for a plea to a serious offense with a long prison term for the husband (who is unlikely to get leniency unless he has information that can bring down a large drug dealing organization).

The wife can gamble that a jury will see her involvement as minimal and acquit her, but if that risk isn't enough to cause the prosecutor to reduce the charge against her, the prosecutor may offer little more than to give "no recommendation" or to make a recommendation of a mininum five year term at a sentencing hearing which is not binding on the judge. The wife has a greater chance of a longer sentence and less hope of a less restrictive prison environment, if she takes the case to trial. And, the state of the law is such that the prosecutors won't have to prove all that much to make a case against her (marital testimony and self-incrimination privileges may make that proof slightly harder, but if she's already spilled the beans in her own confession, this may be cold comfort).

Judge Kane, before whom the case is pending, is unlikely to throw the book at a defendant like Baylon, for example, giving her an above sentencing guidelines sentence (which he would have the discretion to do), unless she engages in flagrant misconduct in the sentencing period or it comes out that she fed heroin to the baby. But, even if Judge Kane believes that a five year sentence is unreasonable, he may scold the prosecutors or the system, but would impose the sentence.

Her husband Armando is almost certain to get some sort of felony conviction and a long term in prison, realistically, he faces a mandatory minimum sentence of ten years and could easily get a longer term.

Wither The Child?

This case has special interest because it involves the mother of an infant.

The one year old will know dad only as a federal prisoner until at least age eleven (around the time that middle school starts), and will need mercy from the prosecutors office and corrections officials to know mom as anything but a federal prisoner until age six (about the time that first grade starts).

If both parents go to prison, social services may attempt to terminate both parents' parental rights and put the child up for adoption, and may do so for the father, even if the mother somehow escapes a five year prison term and chooses to stay married.

The mother's life will also likely be view by social services with a fine toothed comb to see if there is evidence that she is a drug addict, in which they will surely seek to terminate her parental rights in any case. It is safe to guess that a woman married to a heroin dealer who is aware of that fact and has some sort of prior criminal record at age twenty uses or has used drugs to some extent. She will have an ever harder time retaining the status as the legal parent of her child if she is in prison, especially if she doesn't get divorces (since the father is likely viewed by social services as a bad influence and her willingness to stay married as a tendency to make bad decisions and as an unwillingness to break drug world ties). Even if she maintains her parental rights and manages to set up some sort of guardianship and maximize visitation while in prison, her bond to her child will be deeply fractured and the child will be pretty screwed up as a result.

The couple's marital bliss has been shattered. Ten years or more of separation via prison is obviously not good for a marriage. Any assets of consequence that they have will probably be seized for fines and in forfeiture proceedings by federal prosecutors as proceeds of drug dealing, and anything left will end up in the hands of the wife, if she can avoid prison. Their marriage has been short, the husband doesn't need financial support but also can't provide any, so an award of maintenance is unlikely. If the wife manages to stay out of prison, which means as a result of practical considerations that she will have de facto full custody with the husband receiving visitation only as allowed by the prison at most. His child support obligation will likely be the bare minimum allowed by law ($25 a month, the last time I checked), which will be about $3,000 or so when he gets out. Effectively, it will be nothing. The wife might seek a divorce so that she can remarry, which the system is strongly encouraging her to do (even if she serves five years in prison). The husband has no reason to seek one (so that he has some connection to the outside and some hope) but can't oppose the granting of a divorce either.

Social services usually looks for a grandparental or sibling placement first (perhaps with Baylon living with the family when not in prison), if those relatives aren't part of the "same criminal world" as their family member facing criminal charges, but with a one year old the focus is often on a quick adoption and a fresh start for a child who may not remember much of his or her parents.

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