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United States of America v. Ramiro Hernandez

November 27, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
RAMIRO HERNANDEZ, DEFENDANT.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DENYING MOTION FOR RECUSAL

I. INTRODUCTION.

Defendant Ramiro Hernandez has filed a motion seeking recusal of this judge pursuant to 28 U.S.C. § 455. Because Hernandez does not establish that the impartiality of this judge might reasonably be questioned, his motion is denied.

II. FACTUAL BACKGROUND.

On December 30, 2012, Ramiro Hernandez and John Gouveia, Jr., were charged in a three-count indictment. Count I charged that, from February through July 27, 2006, Hernandez and Gouveia knowingly and intentionally conspired to distribute and possess with intent to distribute 500 or more grams (totaling approximately 28 pounds) of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Count II charged that, on or about March 15, 2006, Hernandez and Gouveia knowingly and intentionally possessed with intent to distribute 500 or more grams (totaling approximately 14 pounds) of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Count III charged that, on or about July 27, 2006, Hernandez and Gouveia knowingly and intentionally attempted to possess with intent to distribute 500 or more grams (totaling approximately 14 pounds) of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

On August 18, 2010, a jury convicted Gouveia of all three counts, determining that, with respect to each count, 500 grams or more of methamphetamine was involved. See ECF No. 174. A mistrial was declared with respect to the charges against Hernandez. See ECF No. 173. Gouveia was sentenced to 292 months of imprisonment and 10 years of supervised release for each of the three counts, with all terms to be served concurrently. The court also imposed a $300 special assessment. See ECF No. 231. Gouveia's judgment has been affirmed. See ECF No. 406.

On February 1, 2012, after a retrial, a jury convicted Hernandez of all three counts, determining that, with respect to each count, 500 grams or more of methamphetamine was involved. See ECF No. 397.

On September 24, 2012, this court held a sentencing hearing. At that hearing, the court noted that, under the advisory guidelines, Hernandez's total offense level was 43 and his criminal history category was III, resulting in an advisory guideline range of life in prison. See Transcript of Proceedings of Sept. 24, 2012 at 20, ECF No.452-2. The court noted that the probation officer was proposing a sentence of 320 months of imprisonment, which was a variance from the guideline range. Id. at 21. The court then told the parties that it wanted "some discussion" regarding "avoiding unwarranted disparity in sentencing not just within the case but looking also across cases." Id.

The court told the parties about an unrelated drug case in which it had sentenced Anabel Valenzuela to 384 months. Valenzuela had an offense level of 46 and a criminal history category of I. Id. The court stated:

So here I have Mr. Hernandez, a lower offense level, 43, higher criminal history. He's in criminal history category 3. I don't know that the 64-month differential lower in his favor is justified. It may be. I kind of think Miss Tower [, Hernandez's counsel,] may argue even a greater disparity. But I would like for the parties to take a look at that.

Id. at 22.

The court further noted: It's just one case, but we don't have that many cases that actually go to trial that end up with that -- with anything, you know, with 30 years or more or something close to 30 years, and so it comes to mind. And there may well be -- the drug amount is clearly a difference. There were multiples more pounds involved in that [case]. And that's reflected in the higher offense level, too. Id. at 24.

The court asked the parties whether they wanted to continue the hearing to review the Valenzuela case, in which the court "did impose a 384-month sentence that may well not be appropriate [in Hernandez's case]," and told the parties, "I would like articulation as to why that's not appropriate." Id. at 31.

Counsel for Hernandez then pointed out that there had been a case that "was another huge drug case here in this district" in which the defendant was sentenced to 262 months. Id. at 32. The court ...


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