Judge Rejects Plea for Tougher Sentence in Migrant Smuggling

In a defeat for prosecutors seeking to increase prison sentences for smugglers of illegal immigrants, a San Diego judge rejected a U.S. attorney’s request Monday for a 25-year sentence for a smuggler involved in a high-speed crash that killed three people and injured 16.

Federal District Judge Marilyn Huff gave Gilberto Baez-Luna, who had pleaded guilty, a sentence of two years and nine months, to run concurrently with a sentence of eight years handed down by a state court after Baez-Luna pleaded guilty to three counts of manslaughter.

Huff declined to sentence Baez-Luna, 27, an ex-convict, under a 1994 law that calls for sentences of up to life in prison for smugglers involved in cases where people are put in danger, injured or killed.

Because the sentences will run concurrently, the term handed down by Huff will not increase the time Baez-Luna spends behind bars. With time off for good behavior, he could be free in four to five years.

Alberto A. Arevalo, the assistant U.S. attorney who prosecuted the smuggling case, said Huff’s decision will not keep prosecutors from invoking the 1994 law against other smugglers. Arevalo and his superior, U.S. Atty. Alan Bersin, had hoped a tough sentence by Huff would act as a deterrent to smugglers who routinely risk the lives of illegal immigrants.

“I thought this was a case that cried out for an increased sentence,” Arevalo said. “The [1994] statute still exists. . . . The Congress said people who transport aliens and cause death and injury can go to prison for life. This office is committed to use that statute.”

The law, prosecutors believe, could prove crucial to determining how many years in prison are given to the smuggler involved in the crash that killed seven illegal immigrants near Temecula on Saturday, if he is ever found and convicted.

Huff said she was bound by the “quite low” sentencing guidelines for immigrant smuggling set forth by the U.S. Sentencing Commission, created in 1984 by Congress to ensure that judges throughout the country give similar sentences for similar offenses. The guidelines have not been amended to include the anti-smuggling section in the 1994 crime bill passed by Congress.

Baez-Luna’s attorney, Sylvia Baiz, accused prosecutors of playing politics. She said they sought a long sentence because it is politically popular to get tough on immigrant smugglers “and President Clinton wants to get reelected.”

Huff said that even if she granted the prosecutors’ request, the chances were good that her ruling would be overturned by the U.S. 9th Circuit Court of Appeals. Some legal scholars consider the 9th Circuit, whose best-known judge is the liberal Stephen Reinhardt, one of the most liberal courts in the country.

Huff said the appeals court, led by Reinhardt, overturned her ruling when she added several years to the sentence of a smuggler because he had engaged in a high-speed escape that ended in a crash on Interstate 805. That ruling was made within the “reckless endangerment” section of the current sentencing guidelines, said Huff, who waved the thick red volume in the air during the hearing.

The Baez-Luna case was the first time federal prosecutors had sought to use the 1994 law in a smuggling case.

Because smugglers routinely endanger the lives of illegal immigrants--by packing them into the trunks of cars, taking them on overland treks along treacherous trails, and engaging in high-speed escape attempts in packed vans--prosecutors have vowed to start invoking the 1994 law.

On the night of April 29, 1995, Baez-Luna was driving a van packed with 35 illegal immigrants along a winding two-lane road in the back country of eastern San Diego County near the U.S.-Mexico border, a common path for smugglers.

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Fearing that he was being trailed by the Border Patrol, Baez-Luna raced at speeds up to 75 mph along the darkened road, veered across the center line and smashed into a pickup truck. Two immigrants and the pickup truck driver were killed.

The immigrants had begged Baez-Luna to slow down but he cursed at them. At first Baez-Luna told investigators he was not the driver. He gave one of his four aliases.

The pickup driver’s wife was driving behind her husband in a separate car and was a witness to the bloody aftermath. The couple were returning from a wedding when the crash occurred.

“I am sending a message: I believe alien smuggling is dangerous and inhumane,” Huff said in sentencing Baez-Luna. “. . . I am not discounting the defendant’s conduct. I think it’s egregious and inhumane, but the government should be taking this up with the Sentencing Commission.”

Arevalo argued that Huff should not wait for the sentencing guidelines to be amended or be concerned about reversal at the 9th Circuit. But Huff would not budge.

Paul Martin, deputy staff director for the Washington-based Sentencing Commission, said in a telephone interview that federal judges are free to impose the tougher sentences included in the 1994 bill before the commission incorporates them into the sentencing guidelines.

Whether that might provide an appeals attorney with grounds for a successful appeal is problematical, depending on the facts of the case and which appeals court is involved, Martin said.

“The 9th Circuit has been pretty rigorous in reviewing upward departures [increased sentences],” said John Steer, general counsel of the Sentencing Commission, “and that might frustrate some district courts.”

The commission has begun to incorporate all facets of the 1994 crime bill into the sentencing guidelines, but as yet has taken no action on the increased penalties for immigrant smuggling. At the direction of U.S. Atty. Gen. Janet Reno, the Department of Justice is preparing recommendations to the commission about smuggling penalties.

The Sentencing Commission is a nine-member board created in 1984. Seven of the members are presidential appointees and two members are ex-officio: the chairman of the U.S. Parole Commission and the U.S. attorney general.

The bipartisan act that created the commission also tightened parole, restricting the amount of “good time” that federal prisoners can accumulate. Even the best-behaved federal prisoner serves 85% of his sentence behind bars; a state prisoner in California can be released after serving only half of his sentence.

Members of the sentencing commission include federal judges, law professors and practicing attorneys. The commission routinely amends the sentencing guidelines to coincide with new laws passed by Congress, and to decide such matters as how judges should weigh aggravating and mitigating factors, subtleties that are usually not included in the legislative action.