UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 98-721-CRIMINAL-LENARD
UNITED STATES OF AMERICA, Plaintiff,
vs.
ANTONIO GUERRERO, Defendant
Miami, Florida
October 13, 2009
10:40 a.m. to 2:20 p.m.
_______________________________________________________
RESENTENCING HEARING
BEFORE THE HONORABLE JOAN A. LENARD,
UNITED STATES DISTRICT JUDGE
APPEARANCES:
FOR THE GOVERNMENT:
------------------------------------
CAROLINE HECK MILLER, ESQ.,
and
MICHAEL R. SHERWIN, ESQ.
ASSISTANT UNITED STATES ATTORNEY
99 Northeast Fourth Street
Miami, Florida 33132
FOR THE DEFENDANT:
---------------------------------
LEONARD I. WEINGLASS, ESQ.
6 West 20th Street
New York, New York 10011
-and-
JOHN DAVID PETTUS, ESQ.
1 Northeast Second Avenue
Suite 200
Miami, Florida 33131
-and-
JOAQUIN MENDEZ, ESQ.
100 Southeast Second Street
Suite 2700
Miami, Florida 33131
FOR US PROBATION: SUZANNE FERREIRA
REPORTED BY: LISA EDWARDS, CRR, RMR
Official Court Reporter
400 North Miami Avenue
Twelfth Floor
Miami, Florida 33128
(305) 523-5499
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THE COURT: Good morning. You may be seated.
MS. HECK MILLER: Good morning.
THE COURT: United States of America versus Antonio Guerrero, Case No. 98-721. Good morning, counsel and Probation. State your appearances, please, for the record.
MS. HECK MILLER: For the United States, your Honor, Assistant United States Attorneys Caroline Heck Miller and Michael Sherwin. With us at counsel table today is Special Agent Al Alonzo of the FBI. Good morning.
THE COURT: Good morning.
MR. WEINGLASS: Good morning, your Honor. Leonard I. Weinglass appearing for Antonio Guerrero, who is here in court with me. And at counsel table is local counsel David Pettus and sentencing consultant Michael Berg.
MR. PETTUS: Good morning, your Honor.
MR. BERG: Good morning, your Honor.
THE COURT: Good morning audio.
MR. WEINGLASS: There is also seated here Joaquin Mendez, who I'm sure the Court is familiar with.
THE COURT: Good morning.
MR. MENDEZ: Good morning, your Honor.
THE COURT: Mr. Guerrero is using the aid of the Spanish-language interpreter. Before we begin the sentencing hearing, Mr. Weinglass, you had adopted and joined in the Brady demand that was filed by MR. Norris on behalf of Luis Medina, which is presently on appeal before me. Are you withdrawing or moving to withdraw your adoption of that motion?
MR. WEINGLASS: Yes. For purposes of this hearing, we are withdrawing that motion.
THE COURT: Okay. I'll take that as a motion. I take it the Government has no objection to that.
MS. HECK MILLER: No, your Honor.
THE COURT: I will grant that.
Mr. Guerrero is set for sentencing today.
Mr. Guerrero, have you read the advisory presentence investigation report and its addendums, including the third addendum to the advisory presentence investigation report, or was it read to you?
THE DEFENDANT: (In English) Yes, your Honor. I've read.
THE COURT: Have you and your attorney discussed the advisory presentence investigation report and its addendums, including the third addendum to the advisory presentence investigation report?
THE DEFENDANT: (In English) Yes.
THE COURT: You may be seated, sir. Now, the Defendant filed a memorandum in aid of sentencing and a request for alternative sentence. And there were no objections filed by either the Government or the Defendant to the third addendum to the advisory presentence investigation report as modified by that third addendum. Is that correct?
MS. HECK MILLER: Correct, your Honor, for the Government.
MR. WEINGLASS: That is correct.
THE COURT: And I would like to clarify for the record that the written sentencing agreement that
Mr. Weinglass refers to in his memorandum is not an agreement that has either been presented to the Court nor has the Court approved such an agreement. Is that correct?
MR. WEINGLASS: It has been submitted to the Court. I stand corrected on that.
THE COURT: It has been submitted to the Court?
MR. WEINGLASS: I believe the Court has received a copy of it. At least I've been so informed.
MS. HECK MILLER: Your Honor, the Government appended to its sentencing memorandum which was filed on Friday an unexecuted copy of the sentencing agreement, and that is the only way in which the Court has been apprised of it. That was subsequent to counsel assuring me that the Defendant had signed and entered into the agreement. I do have additional copies here, if the Court needs it.
THE COURT: I was in chambers on Sunday and was referring to CM/ECF for this case, and I don't recall anything having been -- at least I don't believe it was uploaded at that time.
MS. HECK MILLER: Your Honor, on Friday afternoon, the Government filed Docket Entry 1753, its memorandum in aid of resentencing with, as an attachment, 1753-1. I would note that CM/ECF went down at 5:00 and was out of commission for a while. And I do have extra copies, if the Court would like that.
THE COURT: I have not had an opportunity to -- as I said, I was in chambers on Sunday. I don't know whether because of the closing of CM/ECF on Friday and all of Saturday it didn't come up. I checked the docket. It did not come up at that time. I have not as of yet looked at either the memorandum or the attachments. So I'd like to have an opportunity to do that before I continue with the hearing. So we're going to take a recess so that I have an opportunity to read this. We'll be in recess until 11:30. (Thereupon a recess was taken, after which the following proceedings were had:)
THE COURT: Good morning. You may be seated. United States of America versus Antonio Guerrero, Case No. 98-721. Good morning once again, counsel. State your appearances, please, for the record, as well as Probation.
MS. HECK MILLER: Assistant US Attorneys Caroline Heck Miller and Mike Sherwin, along with FBI Agent Al Alonzo.
MR. WEINGLASS: Leonard Weinglass for Antonio Guerrero, who's present in court, and with David Pettus, local counsel, and Michael Berg, sentencing expert.
THE PROBATION OFFICER: Suzanne Ferreira on behalf of the Probation Office.
THE COURT: And the Defendant is using the aid of a Spanish language interpreter. We are here for the continuation of the sentencing concerning Mr. Guerrero. I've now had an opportunity to both read the Government's memorandum in aid of resentencing and the sentencing agreement. Is there an original agreement signed by the parties?
MS. HECK MILLER: Yes, your Honor. I have it here, if the Court would like me to hand it up.
THE COURT: Yes, please.
MS. HECK MILLER: (Tenders document to the Court.)
THE COURT: Place the Defendant under oath, please. (Whereupon, the Defendant was duly sworn.)
THE COURT: Before I proceed with a colloquy of the Defendant, I thought it important and helpful to review the history of this case. On September 23rd, 1998, 14 Defendants were indicted as being members of the La Red Avispa, The Wasp Network, which was an extensive network of foreign agents performing services and duties for the Cuban Government. Five Defendants pled guilty. Five Defendants proceeded to trial and, after a six-and-a-half-month trial, they were found guilty of all counts of which they were charged. Four Defendants remain fugitives.
After sentencing of all the Defendants, they proceeded to exercise their appellate rights and filed appeals with the Eleventh Circuit. The first appellate panel, a three-judge panel, that heard the appeal found that the Court had failed to change the venue of the trial and, as a result of the events in Miami at that time and the extensive publicity, there was a perfect storm that precluded the Defendants from receiving a fair and impartial trial, and that panel reversed the convictions of the Defendant. Thereafter, the Eleventh Circuit Court of Appeals, sitting en banc, vacated the panel opinion and found that there was no necessity for a change of venue, that the Court had proceeded with a fair and impartial voir dire process, and, on that basis, referred the case back to the original panel for further review for the remaining issues concerning the rulings the Court made during that six-and-a-half-month trial and the sentences that were imposed.
The subsequent panel, the first panel, which now became the third panel, upheld the rulings of the Court during that six-and-a-half-month trial and upheld the convictions of all the Defendants, including Antonio Guerrero, and found that, in regard to this Defendant, rather than a section of the then-mandatory guidelines, which was Section 2M3.1(a)(1), which required an actual gathering or transmitting of top-secret information, that the Government had presented evidence and the Court had found that the object of the conspiracy in this case to commit espionage -- that the object was to transmit top-secret information and, therefore, that rather than 2M3.1(a)(1), which is a base offense level of 42, that 2M3.1(a)(2), which does not require an actual gathering or transmitting of top-secret information, a base offense of 37 would apply. Ultimately, the Defendants were denied any further hearing by either the Eleventh Circuit or the United States Supreme Court. The mandate was issued. We are here today pursuant to the instructions of the Eleventh Circuit for a recalculation of what is now the advisory guidelines. At the time that all of the Defendants were sentenced, the guidelines were mandatory and the calculation of the guidelines regarding Mr. Guerrero resulted in a mandatory life sentence.
Since that sentencing time and pursuant to various Supreme Court case law, including Booker, Kimborough, Rita and Gall, the guidelines are now advisory and the Court must first correctly calculate the guidelines and then consider the sentencing factors pursuant to Title 18, United States Code, Section 3553(a)(1) through (7), to determine an appropriate sentence, which brings us to the hearing today. Now, let me just ask the parties once again: There have been no objections filed to the third addendum to the advisory presentence investigation -- the revised advisory presentence investigation report as modified by the third addendum. Is that correct?
MS. HECK MILLER: That's correct, your Honor. The Government has no objections to the PSR as modified and updated.
MR. WEINGLASS: The defense has no objections.
THE COURT: Therefore, the Court will adopt the factual findings and guideline applications as contained in the revised advisory presentence investigation report that was prepared on December 28th, 2001, as modified by the third addendum to the revised advisory presentence investigation report. Of the over 1800 Defendants that I have sentenced since my tenure on the federal bench, this may be one of the first or perhaps the first Defendant that I have sentenced under recalculation of the guidelines. It certainly is the first time that a sentencing agreement has been presented to the Court, referencing an apparent post-appeal sentencing agreement between the Government and the Defendant. I find that, after reviewing the agreement, it is appropriate for me to proceed with a -- through a colloquy with the Defendant to make sure that he understands both the agreements and his rights.
Mr. Guerrero, do you understand -- you can remain seated, sir. That's fine. You can sit down.
THE DEFENDANT: Thank you.
THE COURT: If you would, answer in Spanish. That way, it -- it becomes too difficult for the interpreters if you go back and forth from English to Spanish, sir. Okay?
THE DEFENDANT: Okay.
THE COURT: Do you understand that you are now under oath and, if you answer any of my questions falsely, your answers may later be used against you in another prosecution for perjury or for making a false statement?
THE DEFENDANT: Yes.
THE COURT: What is your full name?
THE DEFENDANT: Antonio Guerrero Rodriguez.
THE COURT: Have you been known by any other name or names?
THE DEFENDANT: No.
THE COURT: How about Lorient?
THE DEFENDANT: No. That is not my name. Lorient is not. People did not know me as Lorient. That is to say, people did not know me as Lorient except in the circumstances limited to this case.
THE COURT: But in the circumstances of this case, you were known sometimes as Lorient. Correct?
THE DEFENDANT: Correct. Correct.
THE COURT: What is your age?
THE DEFENDANT: I am 50. I will be turning 51 in three days.
THE COURT: Could you explain your education. What was the last grade that you completed in school?
THE DEFENDANT: Yes. I graduated as a civil engineer with a master's degree in airport construction in a civil aviation institute in Kiev, and what is at the present time known as the Ukraine.
THE COURT: Are you currently under the influence of any drug or medication or alcoholic beverage?
THE DEFENDANT: No.
THE COURT: Within the last 24 hours, have you used any drug, medication or alcoholic beverage?
THE DEFENDANT: No.
THE COURT: Have you recently been under the care of a doctor or a psychiatrist?
THE DEFENDANT: No.
THE COURT: Have you recently been hospitalized for any reason, including the use of narcotics, medicine, drugs or alcohol?
THE DEFENDANT: No. No.
THE COURT: The ability to understand the proceedings for which you are here: Has that ability been affected at any time by the use of any drug, medication or alcoholic beverage?
THE DEFENDANT: No. Absolutely not.
THE COURT: The ability to understand the explanations and advice given to you by your lawyer: Has that ability been affected at any time by the use of any drug, medication or alcoholic beverage?
THE DEFENDANT: No.
THE COURT: Turning now to the sentencing agreement, the United States of America and Antonio Guerrero enter into the following agreement: One: The Defendant agrees that he faces resentencing as to Count 2 of the indictment, which charges you with conspiracy to commit espionage, in violation of Title 18, United States Code, Section 794(c). You are aware that sentence for this count will be imposed by the Court after considering the sentencing guidelines and policy statements. You acknowledge and understand that the Court will compute an advisory sentencing guideline range under the sentencing guidelines and that the applicable guidelines will be determined by the Court relying, in part, on the results of a presentence investigation by the Probation Office, including all addenda to the presentence report, up to and including the third addendum to the presentence report. You are also aware that, under certain circumstances, the Court may depart from the advisory guideline range it has computed and may raise or lower that range under the guidelines. You are further aware and understand that the Court is required to consider the advisory guideline range determined under the sentencing guidelines, but is not bound to impose that sentence. The Court is permitted to tailor the ultimate sentence in light of other statutory concerns, and such sentence may be either more severe or less severe than the guidelines' advisory sentence.
Knowing these facts, you understand and acknowledge that the Court has the authority to impose any sentence within and up to the statutory maximum authorized by law for the offense to which you are being resentenced, which is Count 2 of the second superseding indictment. You understand and acknowledge that the Court may impose the statutory maximum term of imprisonment of up to life in prison, followed by a term of supervised release of up to five years. In addition to a term of imprisonment and supervised release, the Court may impose a fine of up to $250,000, and a special assessment in the amount of $100 will be imposed on you for Count 2. You and the Government agree that you shall receive credit for any special assessment previously paid by you pursuant to your original sentencing as to Count 2. The Government reserves the right to inform the Court and the Probation Office of all facts pertinent to the sentencing process, including all relevant information concerning the offenses committed, whether charged or not, as well as concerning you and your background. Subject only to the express terms of any agreed-upon sentencing recommendations contained in this agreement, the Government further reserves the right to make any recommendation as to the quality and quantity of punishment. You are aware that sentence for Count 2 has not yet been determined by the Court. You are also aware that any estimate of the probable sentencing range or sentence that you may receive, whether that estimate comes from your attorney, the Government or the Probation Office, it is a prediction, not a promise, and is not binding on the Government, the Probation Office or the Court. You understand further that any recommendation that the Government makes to the Court as to sentencing, whether under this agreement or otherwise, it is not binding on the Court and the Court may disregard the recommendation in its entirety. You understand and acknowledge that you may not withdraw from the sentencing agreement based upon the Court's decision not to accept a sentencing recommendation made by you, the Government or a joint recommendation made by both you and the Government.
You and the Government agree that, although not binding on the Court, you will jointly recommend that the Court make the following findings and conclusions as to the sentence to be imposed: A: that the components of the applicable guideline range for Count 2 are accurately and completely set forth in the third addendum to the presentence investigation report, including the base offense level of 37; specific offense characteristics of zero; victim-related adjustments of zero; adjustment for role in the offense of plus two, use of special skill; adjustment for obstruction of justice of zero; Chapter 4 enhancements of zero; adjustment for acceptance of responsibility of zero; for a total offense level of 39; That the applicable guideline range for Count 2 under all of the circumstances of the offense or offenses committed by you is Level 39, as stated in the third addendum to the presentence investigation report, and that your criminal history category is Roman numeral I, resulting in a guideline imprisonment range of 262 to 327 months. You and the United States agree that, although not binding on the Court, you will jointly recommend that the Court impose a sentence on Count 2 as follows: A: 240 months' incarceration to run concurrently with the Court's previously imposed sentences on Counts 1 and 16 of the second superseding indictment, for a total incarceration sentence of 240 months; B: A term of supervised release of five years with conditions of supervision as set forth in the Court's original sentence of the Defendant; C: A special assessment of $100 with credit for special assessment amounts previously paid by you pursuant to your original sentence; And, D: No fine or restitution.
You and the United States agree that neither party shall seek any departure, either upward or downward, from the agreed overall guideline range of Level 39 and that neither party shall seek any variance, upward or downward, from the agreed joint sentence recommendation of 240 months' incarceration, five years' supervised release and a 100-dollar special assessment. You are aware that Title 18, United States Code, Section 3742, affords you the right to appeal the sentence imposed in this case. Acknowledging this, in exchange for the undertakings made by the United States in this sentencing agreement, you waive all rights conferred by Section 3742 to appeal any sentence imposed or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or as a result of an upward departure from the advisory sentencing guideline range the Court establishes at sentencing. You further understand that nothing in this agreement shall affect the Government's right and/or duty to appeal, as set forth in Title 18, United States Code, Section 3742(b). However, if the United States appeals your sentence under Section 3742(b), you shall be released from your waiver of appellate rights. By signing this agreement, you acknowledge that you have discussed the appeal waiver set forth in this agreement with your attorney. You are aware that Title 28, United States Code, Section 2255, affords convicted persons the ability to attack their sentences collaterally under certain circumstances.
Acknowledging this, in exchange for the undertakings made by the United States in this sentencing agreement, you hereby waive all rights conferred by Title 28, United States Code, Section 2255, to attack collaterally your sentence based on a claim of ineffective assistance of counsel at sentencing. By signing this agreement, you acknowledge that you have discussed the collateral attack waiver set forth in this agreement with your attorney. You understand and agree that this sentencing agreement will be filed with the Court and will become part of the public record in this case and that you are subject to the Court making inquiry as to your agreement to the terms of this sentencing agreement being knowing and voluntary. This is the entire agreement and understanding between you and the United States. There are no other agreements, promises, representations or understandings. Is this your signature on the agreement, sir?
THE DEFENDANT: Yes. Exactly.
THE COURT: Did you read the agreement before you signed it or was it read to you before you signed it?
THE DEFENDANT: Yes. Certainly, I read it.
THE COURT: Did you discuss fully the agreement with your attorney before you signed it?
THE DEFENDANT: Yes, of course.
THE COURT: Did you understand all the terms of the agreement before you signed it?
THE DEFENDANT: Yes.
THE COURT: Do you understand that, in Paragraph 10 on Pages 4 and 5, you are entering into a waiver of your appellate rights as to the sentence to be imposed in this case?
THE DEFENDANT: Yes. That is correct.
THE COURT: Have you fully discussed this appeal waiver with your attorney?
THE DEFENDANT: Yes, of course.
THE COURT: Are you entering into this waiver of your appellate rights freely and voluntarily?
THE DEFENDANT: Yes, of course.
THE COURT: Do you understand that, in Paragraph 11, you are entering into a waiver of your collateral attack rights under Title 28, United States Code, Section 2255, to collaterally attack your sentence based on a claim of ineffective assistance of counsel at sentencing?
THE DEFENDANT: Yes.
THE COURT: Have you fully discussed this collateral attack waiver with your attorney?
THE DEFENDANT: Yes.
THE COURT: Are you entering into this waiver of your collateral attack rights freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: Do you also understand, sir, that your attorney has withdrawn his request for any additional Brady information in preparation for sentencing, that he has withdrawn from that motion in the appeal?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with your attorney's services?
THE DEFENDANT: Yes, of course. Fully so.
THE COURT: The terms that I summarized to you: Are those the terms of your sentencing agreement with the Government as you understand them?
THE DEFENDANT: Yes. Fully.
THE COURT: Has anyone made any other or different promises or assurances to you in an effort to induce you to enter into this sentencing agreement?
THE DEFENDANT: No.
THE COURT: Has anyone threatened you or tried in any other way to force you to enter into this sentencing agreement?
THE DEFENDANT: No.
THE COURT: Do you understand that, if I accept your sentencing agreement and the sentence that I give you is more severe than you expected, you will still be bound by your sentencing agreement and you will have no right to withdraw it?
THE DEFENDANT: Yes. I understand that perfectly.
THE COURT: Mr. Weinglass, is this your signature on the sentencing agreement?
MR. WEINGLASS: Yes, it is.
THE COURT: And, Ms. Miller, your sentence and Mr. Sherwin's signature as well?
MS. HECK MILLER: Yes, your Honor.
MR. SHERWIN: That's correct, your Honor.
THE COURT: Mr. Weinglass, are you satisfied that entering into this sentencing agreement is in the best interest of your client, considering all the circumstances in this case?
MR. WEINGLASS: Yes, I am.
THE COURT: It is the finding of the Court in the case of United States of America versus Antonio Guerrero that the Defendant has entered into a waiver his appellate rights and his collateral attack rights knowingly, freely and voluntarily after full consultation with his attorney and without coercion or duress. Let me just review with counsel and the Defendant the calculations in the advisory presentence investigation report as modified by the third addendum. The total offense level is 39. The criminal history category is Roman numeral I. The advisory guideline range on Count 2 is 262 to 327 months; three to five years' supervised release; 25,000 to a 250,000-dollar fine; and $100 special assessment on each count. The sentences for Counts 1 and 16 remain the sentences that were previously imposed by the Court. Is that correct in its totality?
MS. HECK MILLER: Your Honor, yes. That's correct.
THE COURT: Mr. Weinglass?
MR. WEINGLASS: Yes, it is correct.
THE COURT: Mr. Guerrero, you're in court today to receive your sentence. Before that happens, I must ask you if there's any legal cause as to why the sentence of the law should not be pronounced upon you.
THE DEFENDANT: No.
THE COURT: No legal cause having been shown as to why sentence should not be imposed, the Court will consider whatever you may wish to say in mitigation.
Mr. Weinglass?
MR. WEINGLASS: Thank you, your Honor. If the Court is inclined to accept the recommendation of both parties as contained in the sentencing agreement, my comments will be brief. Otherwise, I'm afraid this will become somewhat more of a complicated proceeding. So if the Court could give me some indication of its inclination --
THE COURT: I'm not going to be able to know that, sir, until I hear allocution by both sides and any statements that the Defendant wishes to make. Pursuant to United States versus Pugh, the procedure that the Court is to follow when sentencing a defendant is to correctly calculate the guidelines and then consider all of the sentencing factors under Title 18, United States Code, Section 3553(a)(1) through (7). So I'm here to listen to whatever presentation you may wish to make.
MR. WEINGLASS: Your Honor, I think we begin today with the understanding that today's proceeding deals solely and exclusively with the issue of sentencing. The question of guilt or innocence has been previously raised in the proceedings to which you alluded, and I will not intrude on the Court's time by rearguing those matters which have already been litigated. Having said that, I assume the Court has received the 11-page document entitled the Sentencing Memorandum on Behalf of the Defendant --
THE COURT: I have.
MR. WEINGLASS: Thank you.
THE COURT: And I have reviewed it.
MR. WEINGLASS: I assume the Court has also received the booklet which was submitted to the Court's chambers involving the Bureau of Prison official records of his stay at the federal penitentiary at Florence over the previous seven years.
THE COURT: I have received that. I have reviewed that as well.
MR. WEINGLASS: Thank you.
Mr. Guerrero last appeared before this Court nearly eight years ago, and he was duly sentenced by the Court. As your Honor has already pointed out, there has been a fundamental change in the law respecting sentencing. The guidelines, which were mandatory at that time, and by an erroneous calculation, required a life sentence no longer are mandatory and, in fact, by virtue of the decision of the Eleventh Circuit court in this particular case, a life sentence would be inappropriate. Likewise, the Probation Office, which has reviewed the matters and submitted a report to the Court, has suggested or recommended a range under a base level offense of 39, which excludes a life sentence and carries, as the Court has indicated, a sentencing range of 262 months to 327 months. And even beyond that, the parties, having received the report of the Probation Office, have engaged in an extensive negotiation and have arrived at the sentencing agreement, a six-page document, which calls for and recommends to the Court a sentence of 240 months. So we're here, essentially, with an entirely different sentencing regimen than existed in December of 2001, when Mr. Guerrero received a life sentence.
In addition to the change in the law, there has been a change in the facts as well. There are now before the Court new facts, facts which were not available in December of 2001. Those facts reflect Mr. Guerrero's character and the positive contribution he's made at the federal penitentiary in Florence over these last seven years. These facts are not generated by the defense. These facts are generated by the Bureau of Prison personnel, who have observed him over the last seven years and who have commented favorably upon his behavior. In the booklet which I provided to the Court, the very first attachment is a synopsis of his behavior over the last seven years as a teacher at the federal penitentiary. It's a report submitted by Mr. Bellantoni, B-e-l-l-a-n-t-o-n-i. And that report is written, if the Court will observe, on the stationery of the Department of Justice, which is the party represented in court this morning by counsel. And that report by the Department of Justice counselor, who was the supervisor of his work as a teacher, contains the following commentary: First, he's regarded as, quote, outstanding. He did an outstanding job of teaching. Secondly, he's highly respected by staff and his students. Third, he displayed excellent teaching skills. Fourth -- and what's important in terms of character -- he was always respectful of staff and the students. He never caused any problem. In this -- probably the most difficult custodial environment in the United States, or one of the most difficult, he does not have a single disciplinary infraction, not one. And, finally, Mr. Bellantoni concludes that Mr. Guerrero is a very intelligent individual who has used his abilities in a very positive way.
His record has been so extraordinary that I've appended to the report Attachment 4, which is a request by the warden of the institution, backed up by the supervisor of his unit and his counselor, that Mr. Guerrero be sent while still under a life sentence to a lower-security facility due to his excellent adjustment and his contribution in the facility. Just a word about his contribution. The most important thing that an inmate can do while serving time is to use whatever talents and skills he has to advance the rehabilitation of his fellow inmates. Mr. Guerrero has overseen the achievement of his students in accomplishing a GED, as well as other achievements, which put them on the road to rehabilitation, something which is the mission of our prison system. And he has been a factor in helping those less fortunate than himself in setting their lives on a course of improvement. There's nothing better than an inmate can do than that. And he has performed that admirably, as the record of the Bureau of Prisons indicates.
He performed all that work under the cloud of a life sentence, which means that he knew as he was contributing that he would remain in prison unto death. And, yet, he did not become disconsolate. He did not become bitter. He did not become angry. Instead, under the pale of that sentence, which the Eleventh Circuit has ruled was wrongly given, he lived with a mental state knowing for seven years that he would never see the light of day outside of a prison. He would never see his mother, Mirta Rodriguez, who is here today, or his sister, Maruchi. Indeed, because he was in a high-security prison, which he might not have been in had he been properly sentenced, he was only able to see his family during the times when the prison was not on lockdown. The penitentiary at Florence is on lockdown almost 30 percent of the time. And frequently, visits by his family were interrupted and ended because of a lockdown situation at the prison.
So, your Honor, in conclusion, the Court is sentencing today an individual, not a country, a man who has proven over seven years in the most dire circumstances that he is a worthy person of good character and positive thinking. It was with that record that we entered into the negotiation with the Government for a sentencing, and it took weeks. This was not quickly done. It took weeks and the cooperation of all the counsel involved, the cooperation of Mr. Guerrero, to hammer out this recommendation to the Court. So we finally bring before the Court the reality of a man, the full reality of a man, not the guideline reality, which is only advisory, as your Honor has indicated, not the statutory reality, which is reserved for those who've committed the most heinous crimes in the crimes of espionage, but the reality of a person who has demonstrated that he's entitled to consideration for what he has done for the last seven years, which was not before the Court in December of 2001, but now is. So with that in mind, I urge upon the Court the acceptance of the recommendation by both parties. And the operative word, which the Court has pointed out, Section 3553(a)(1) -- the operative word now in sentencing procedures in federal District Courts is "reasonable." And as we recited in our agreement, we have looked at the full panoply of the circumstances of this case, all of it. We have both concluded, the United States and Mr. Guerrero, that a sentence of 240 months is reasonable in satisfaction of the requirements of Section 3553(a). And I hope the Court will follow this recommendation which we've placed before you. Thank you.
THE COURT: Mr. Guerrero, is there something that you wish to say, sir?
THE DEFENDANT: No. Thank you very much.
THE COURT: What does the Government say?
MS. HECK MILLER: Yes, your Honor. Your Honor, the Government respectfully recommends that, as to Count 2, this Defendant be resentenced to 240 months' incarceration to run concurrently with Counts 1 and 16; a term of supervised release of five years with conditions of supervision as set forth in the Court's original sentence; a 100-dollar special assessment with credit for what has already been paid; and no fine for restitution.
THE COURT: Can you move that microphone down towards you.
MS. HECK MILLER: Is that better, your Honor?
THE COURT: Yes. Thank you.
MS. HECK MILLER: The Government respectfully requests that sentence, believing it to be in the context of this agreement a reasonable sentence. I have listened to counsel giving his plea on behalf of his client, and I feel no need to quarrel with counsel because we're acting here in the spirit of agreement. But I do point out to the Court that he states his own reasons that he proffers to the Court for the reasonableness of the sentence. That's not the way Government sees it. The Government believes that the reasonableness of this sentence lies not in the Defendant's conduct over the past seven years. After all, that conduct, while commendable, is only what is expected and hoped for from all prisoners. In addition, that conduct is appropriately and adequately addressed by Title 18, United States Code, Section 3264(b), which is the statutory provision that calls on the Bureau of Prisons to give credit towards service of sentences for satisfactory behavior.
So without in any way contradicting counsel's factual recitation of Mr. Guerrero's conduct in prison, the Government expressly notes that that is not the reason that we believe that a variance sentence of 22 months from the guidelines is reasonable in this case. Rather, the Government believes that this sentence is reasonable because it is an agreed sentence. This is a case that has lasted a long time, that has generated a lot of contentiousness between the Government and the defense, that continues to generate a lot of contentiousness and noise worldwide. The Government considers that it is a service to the public and to the people of the United States for the world to know that the Government and the defense are in agreement as to what is an appropriate sentence on resentencing. We believe that it quiets the waters of contentiousness that swirl about this case and it is for that reason, the fact that the Government and the defense, after these many years, have been able to reach an agreement, that we believe that this is a reasonable sentence.
In terms of the sentencing factors of Title 18, United States Code, Section 3553, I would note that, at (a)(2), those factors, including to promote respect for the law -- we believe that, in this case particularly, this agreement promotes respect for the law by bringing to an agreed resolution these many years of dispute. Accordingly, your Honor, that is why the Government makes this recommendation. And we respect the right of opposing counsel to state his own reasons, but we wanted the Court to know that we have a different rationale. But we do come out at the same place, which is to recommend a sentence of 240 months, with the other features which I've mentioned. Thank you.
THE COURT: Ms. Miller, how does your recommendation today comport with the recommendations and the presentations that you made before the Court previously pursuant to 3553(a)(1), which is the nature and circumstances of the offense, specifically, that, "This Defendant sought" -- and I'm quoting now from Document 1443, which was the memorandum in the aid of sentencing regarding this Defendant -- that "This Defendant sought and conspired to penetrate top-secret United States national defense information and declared himself ready and willing to perform any other task the government of Cuba might give him. His conduct posed a serious treat to the national security of the United States"? It was the basis for his conviction for conspiracy to commit espionage, which is Count 2 and, at that time, you said properly rates a sentence of the guidelines, which is -- at that time, was determined to be life. So considering the nature and circumstances of the offense, which you do not address in your memorandum and have not addressed here, which was conspiracy to obtain top-secret information, how does that not strain your credibility?
MS. HECK MILLER: Your Honor, it's correct that I have not addressed the nature and circumstances of the offense today, in part, because defense counsel and I are seeking to keep as much to an agreed path as possible. But the Court has asked a question, which I will fully and candidly answer. The nature and circumstances of this offense are indeed extremely serious. It was a conspiracy to collect top-secret information. We recommended life in prison for this Defendant, consistent with the guidelines. However, as somebody has said in the context of elections, elections have consequences. And here, too, appeals have consequences. The Court of Appeals has taught us that, for this Defendant, the appropriate guideline sentence is 262 to 327 months.
THE COURT: You're requesting a variance or a reduction of that guideline --
MS. HECK MILLER: Yes, your Honor.
THE COURT: -- for a Defendant that you state and that the evidence certainly supported and that I found participated in a conspiracy, the object of which was to gather top-secret information to utilize against the United States.
MS. HECK MILLER: Yes, your Honor. And absent this agreement, we would -- we would have recommended a guideline sentence because we also want to absorb the teaching of the Court of Appeals. Now we are recommending a variance from that guideline, and we recommend that variance -- I've mentioned the one major reason that we believe makes the variance reasonable. And that is the quieting of the dispute between the Government and the defense after these many years, and especially in light of the many misstatements and distortions that have circulated around the world about this case. We think that it is important, in the light of those many distortions, that the world know that this Defendant agrees that 240 months is a reasonable sentence, and that is something that the Government feels is worth giving something up for.
In addition, your Honor -- that is the reason that we recommend the variance. I would say that the other things that make the variance more palatable, at least to me, in light of my vision of the seriousness of the offense, with regard specifically to this Defendant and his activity, are two things: One, he was an agent and not an illegal officer. Although he was a willing tool of the Directorate of Intelligence, he was not an officer charged with or carrying out executive and managerial functions. So that's one thing that makes this variance more palatable. The other is that he was working at the Naval Air Station as opposed to Southern Command. While the injuries that the United States could face from penetration of the Naval Air Station were grave ones and indeed rose to the level of top secret, the potential injury to the United States of the hoped-for penetration of Southern Command was an even graver threat to the national security of the United States. This Defendant was exhorted to participate in that endeavor to penetrate Southern Command, but that's not really what his conduct was about. His conduct was about the penetration of Naval Air Station. Serious? Yes. A threat to the national security? Yes. Absent an agreement, worthy of punishment within the sentencing guidelines? Yes. But we do have an agreement. It is something that brings something of value to the people of the United States. We believe that it enhances not only the validity of this prosecution, but the appreciation in the world of the fairness of our judicial system that this Defendant comes before the Court and says to the Court, "I agree. I agree that it's reasonable for me to be sentenced to 240 months in prison for what I did." We believe that that implicitly gives the lie to a lot of the uninformed information that has circulated around the world about this case, and that is something that is valuable to the United States. I would never want to appear to lose credibility with the Court. So I've tried to be as candid as I can. The assessment that I made of the gravity of the case in 2001 is the same assessment that I make today. The Court of Appeals has told us that, for this Defendant, that does not warrant life in prison, but warrants a guideline range. Even in light of that seriousness, I consider that there is a benefit to the United States in a variance from the bottom guideline level in order to present finally an agreed resolution to this matter. It is for that reason that I make my recommendation.
Your Honor, may I have a moment to speak with counsel?
THE COURT: Sure. (Discussion off the record amongst counsel.)
MS. HECK MILLER: Thank you, your Honor.
THE COURT: Did you want to say something else?
MS. HECK MILLER: No, your Honor.
THE COURT: Thank you.
MR. WEINGLASS: Your Honor, may I be heard briefly in response?
THE COURT: Sure.
MR. WEINGLASS: To answer the Court's question posed to counsel, I would refer to the decision of Judge Pryor of the Eleventh Circuit Court of Appeals who set aside a life sentence in this case and who reminded us that the law does not focus on the object of the conspiracy, which is the question which the Court has raised. On sentencing, the law focuses on what was actually taken and transmitted. And so to go back to a discussion of the object of the conspiracy is in opposition to the decision of Judge Pryor and the Eleventh Circuit. And when you look at the guidelines and the range in the guidelines --
THE COURT: Well, Judge Pryor's decision in the Eleventh Circuit was for the determination that Guideline 2M3.1(a)(1), which was a base offense level of 42, should not be applied because the Government had not presented evidence and the Court had not found that "actual" -- quoting "actual" -- top-secret information was gathered or transmitted, but that 2M3.1(a)(2), which is base offense 37, should be applied, which says otherwise.
MR. WEINGLASS: Correct.
THE COURT: But nowhere in the decision does it indicate that the Court cannot consider the object of the conspiracy. The decision indicates that the base offense level of the now advisory guidelines should be 37 because there was no evidence of actual top-secret information, which is -- top-secret information is information that, if disclosed, reasonably could be expected to cause exceptionally grave damage to the national security. So the Government did not present evidence and the Court did not find -- because they didn't present evidence at trial -- that Mr. Guerrero actually gathered top-secret information.
But I found and there's nothing in the appellate decision that indicates that I may not or should not consider that the object of the conspiracy was to gather top-secret information. And, in fact, the facts of the advisory presentence investigation report, as the facts adduced at trial, indicate that this Defendant very much wanted to gather top-secret information at Boca Chica.
MR. WEINGLASS: Well, your Honor, if you look at the play of cases on questions of conspiracy to commit espionage, you have life sentences, and these life sentences are reserved for those who have actually gathered top-secret information. We're talking about the Aldridge Ames, we're talking about the Robert Hanssen, we're talking about the Robert Walker, individuals who accumulated hundreds of pages of top-secret information, and these were given to another country. Those cases warrant the life sentence. In this case, in terms of what was actually gathered, you do not have a single page, not one page, of classified documents involved. That is remarkable. And I think that's what the guidelines focus on, not the object. And I think, when the Court considers --
THE COURT: I absolutely agree with you, Mr. Weinglass. That's exactly what the guidelines focus on. If top-secret information is gathered, it's a base offense level of 42 under 2M3.1(a)(1). If not, the base offense level is 2M3.1(a)(2), which is a base offense level of 37. We are not in disagreement, sir.
MR. WEINGLASS: Right. But the Court is indicating that, in considering the sentence in this case, despite the probation report, despite the agreement of the Government, despite a written understanding from Mr. Guerrero, the Court will once again consider questions of what was the object of the conspiracy. Now, I don't want to get into the trial. First, I wasn't present at trial, although I know the record. The Court was present. But I will say this: The Government produced a number of witnesses, experts. They also produced the base commander. Not one witness who was put on the stand by the Government was asked the question, "Did Mr. Guerrero's activities pose a threat -- a grave threat to the national security of the United States?" They could have asked that. You heard the captain who was here. You heard other experts testify. No one was asked that question. No one was asked the key question that the Court is considering. In fact, from this record, you can see that whatever the activities were that were presented, there was no expert testimony either in this hearing or any sentencing hearing or in the six-month trial that there was a grave threat to the national security of the United States from Mr. Guerrero. Now, what is a reasonable sentence, given that?
Here, I ask the Court to consider the fact that a 20-year sentence is not a walk in the park. There has to be an element of some humanity here. Antonio Guerrero went into custody when he was 39 years old. If the Court accepts this plea agreement -- the sentence agreement, he will come out when he's nearly 60. How many people would give up the prime of their life from 39 to 60? We cannot talk about this being a minimal sentence or an only 20 years. We're talking about cutting the heart out of a man's life, who has sons. And that's not -- when we entered into this agreement, only on the issue of sentencing, we did agree to a 20-year sentence. That's not easy to do. And it was done because we relied on the fact that this Court, having the recommendation from both parties, and using the test of reasonableness and humanity concerns -- because those are considerations that are here.
You are sentencing an individual who has accepted 20 years as a sentence. And that's not easily overlooked. For seven years, he was in one of the worst prisons in the United States, and he shouldn't have been. That's a factor that ought to be considered, not some imaginary threat to the United States that in six months was never even discussed in this courtroom. With all their witnesses, not one said that. I don't understand why the Court is going there, when you have all of this before you from the Bureau of Prisons, from the Government of the United States, from the Department of Justice. No one is giving anything away here. They have taken away the heart of his life. I hope the Court in its wisdom and doing justice and being reasonable will understand that the agreement we entered into -- and it was after a long process -- was an agreement that reflects truly a reasonable resolution of this case and, hopefully, going forward so that Mr. Guerrero can rejoin his family as a 60-year-old man, having served in one of the worst prisons in the United States. If the Court has any questions, I would be glad to answer them.
THE COURT: I don't have any questions, sir. Thank you. We're going to take a break at this time. I want to consider the argument that you've made. We'll reconvene this matter at 1:45.
(Thereupon a recess was taken, after which the following proceedings were had:)
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THE COURT: You may be seated. United States of America versus Antonio Guerrero, Case No. 98-721. Good afternoon, counsel and Probation. State your appearances, please, for the record.
MS. HECK MILLER: For the United States, Caroline Heck Miller and Mike Sherwin, your Honor. With us is Al Alonzo with the FBI.
THE COURT: Good afternoon.
MR. WEINGLASS: For Antonio Guerrero, Leonard Weinglass and Michael Berg. r. Pettus had to excuse himself. He has another matter.
THE COURT: That's fine.
MR. WEINGLASS: Thank you.
THE PROBATION OFFICER: Suzanne Ferreira on behalf of the Probation Office.
THE COURT: Good afternoon. And the Defendant is using the aid of the Spanish-language interpreter. If you would stand with your client, please. As a sentencing judge, I am always mindful that the United States Supreme Court has taught us that the district court should begin all sentencing proceedings by correctly calculating the guidelines as a matter of administration and to secure nationwide consistency for they should be the starting point and the initial benchmark, citing Gall at 128 Supreme Court 586, at 596, citing Rita at 551 US 338. In the Coon versus United States decision, 518 US 81, at 113, the United States Supreme Court stated, quote, "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." The Eleventh Circuit has taught us in United States versus Pugh at 515 F.3d 1179, a 2008 decision, that, first of all, pursuant to Booker, Gall, Kimborough, Rita, that the guidelines are advisory. The Court must consult the guidelines, take them into account, but is not bound by them. There is no presumption for the sentencing court that the guidelines are presumed reasonable. And the Pugh court set forth a procedure for the Court to follow when requested for a sentence below the advisory guideline range. The Court found that, first of all, the Court is to correctly calculate the guidelines, then give both parties an opportunity to argue for whatever sentence they deem appropriate, and then the Court should consider the factors under Title 18, United States Code, Section 3553(a), to determine whether they support the requested sentence.
So I now turn to the 3553(a) factors. The factors that are to be considered by the sentencing court include the nature and circumstances of the offense and the history and characteristics of the Defendant. The nature and circumstances of the offense are that the Defendant stands convicted before the Court of a conspiracy to commit espionage, a conspiracy to commit an offense against the United States and acting as an agent of a foreign Government without prior notification to the Attorney General, having been found guilty of those counts by a jury after trial. And the nature and circumstances of the offenses are that these are very serious offenses. And here, in looking at the facts of these offenses as they relate to the relevant conduct of this Defendant, I cite the following: Antonio Guerrero became a member of the Cuban Ministry of the Interior, which contains the Directorate of Intelligence, in 1988. He became a special agent in 1991. He was ordered by the Directorate of Intelligence headquarters to move to Miami, Florida, in May, 1992. And, in fact, Mr. Guerrero was a citizen of the United States, as most of the agents who were involved in the Wasp Network were. He was able to get work and did start working at the Boca Chica Naval Air Station, Public Works Department, in March, 1993, first on a one-year contract, and later he was able to achieve permanent employee status.
Over the course of his employment, he executed four loyalty oaths, pledging his true faith and allegiance to the Constitution of the United States. On least two occasions, he traveled to Cuba to receive extended training and debriefing as to military matters of intelligence interest at the Directorate of Intelligence headquarters in Cuba. He regularly provided the Directorate of Intelligence with continuing information regarding United States military assets at Boca Chica. He reported in detail the comings and goings of aircraft with times and precise descriptions of the aircraft types, the anticipated arrivals of squadrons of military personal for training and other purposes. He functioned as a spotter for the Directorate of Intelligence of Boca Chica personnel of interest and provided names and addresses of military officers and other personnel assigned to the base. He had a particular focus on reporting movements of military intelligence units at and from Boca Chica. His Public Works assignments at Boca Chica Naval Air Base involved work at a building that was being renovated, and he provided information that the structure was to be used for some top-secret activity. He described the physical security enhancements being done to the building. He followed up with more detail of the physical description of the building and noted the building's extreme security measures and promised to try to come up with a mental blueprint of the building to his supervisor.
He reported that he would be providing material, including a copy of the blueprint of that building, where remodeling was being done, as he indicated, for some top-secret activity. He reported to the Directorate of Intelligence that it was possible that this building was being designated for Southern Command work. In fact, that particular building at Boca Chica Naval Air Base was being renovated to store all levels of classified material, including top-secret information, and classified documents began to be stored there in April of 1997. He also reported on another building and was able to discover that main secret military missions were being carried out in this second building. He went on to provide detailed physical description of the command center and its work stations, which he concluded were being used for monitoring information from scanning radar and other means. He stated that this second building and a certain location within the building was classified as top secret, and, in fact, this building did contain classified materials at all levels, including top secret.
So the relevant conduct attributed to Mr. Guerrero underscore the seriousness of the nature and circumstances of the offense -- the offenses for which he stands convicted before the Court. The Court also has to consider the history and characteristics of the Defendant. And I don't agree with the Government. I do agree with Mr. Weinglass that I should consider both his assignment at the institution in Florence, Colorado, and his exemplary involvement with teaching English as a second language and being a model prisoner, that that is part of the history and characteristics of the Defendant who stands before me today. And I have reviewed that information and that -- there is no question that he has assisted other prisoners in rehabilitation through his activities and has been a model prisoner. I also find that it is certainly possible that, because of the prior sentence that he received, that his classification may have been affected and that this is something also that the Court should consider. I also take note of the fact that, at today's hearing, Mr. Guerrero made no statement of contrition, no statement whatsoever about his offenses against the United States. In determining the particular sentence, the Court must also consider the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, protect the public from further crimes of the Defendant.
The Court must consult the guidelines. The Court must also consider any pertinent policy statements issued by the Sentencing Commission. And I do note the policy statement that cites the definition of "top-secret information" as that information, if disclosed, reasonably could be expected to cause exceptionally grave damage to the national security of the United States, which was the object of the conspiracy to commit espionage, for which Mr. Guerrero now stands before the Court to be sentenced. The Court also has to consider the need to avoid unwarranted sentencing disparities among Defendants with similar records who have been found guilty of similar conduct. And certainly the Court takes note of the fact that Mr. Weinglass is correct that the Government did not present and prove evidence in this case that this Defendant actually obtained top-secret information, though the evidence in this case did indicate that he very much wanted to and was working as an agent for the Directorate of Intelligence to obtain such information. I also take note of the fact that he was an agent and not an officer. He was supervised by others and directed by others. Having considered all of these matters and the 3553(a) factors, I find that a guideline sentence is the appropriate sentence in this matter, though I find that a sentence at the lowest end of the advisory guidelines is sufficient for both punishment and deterrence. It is reasonable and just. It reflects the seriousness of the offense. It does take into account the amount of time that Defendant Guerrero spends in jail and I find provides just punishment. The Court has considered the statements of the parties, the revised advisory presentence investigation report, which has been modified by the third addendum, and adopted by this Court, which contains the advisory guidelines, the statutory factors, and the Court has also considered the sentencing agreement of the parties and its recommendations.
It is the finding of the Court that the Defendant is not able to pay a fine; and, therefore, no fine shall be imposed. Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the Defendant, Antonio Guerrero, is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for 262 months. This term consists of a term of 262 months as to Count 2 and terms of 60 months as to Counts 1 and 16, all such terms to be served concurrently. Upon release from imprisonment, the Defendant shall be placed on supervised release for a term of five years. This term consists of five years as to Counts 2 and 3 -- strike that. This term consists of five years as to Count 2 and three years as to Counts 1 and 16, all such terms to run concurrently. Within 48 hours of release from the custody of the United States Bureau of Prisons, the Defendant shall report in person to the probation office in the district to which he is released. While on supervised release, the Defendant shall not commit any federal, state or local crimes; he shall be prohibited from possessing a firearm or other dangerous device; he shall not possess a controlled substance; he shall comply with the standard conditions of supervised release and with the following special conditions: The Defendant shall submit to a search of his person or property conducted in a reasonable manner and at a reasonable time by the United States probation officer. It is further ordered that the Defendant shall pay immediately to the United States a special assessment of $100 as to each of Counts 1, 2 and 16, for a total of $300, which shall be due immediately. He shall be given credit for any special assessment previously paid.
Mr. Guerrero, it is my duty to inform you, sir, that you have ten days with which to appeal the judgment and sentence of this Court. Should you desire to appeal and be without funds with which to prosecute an appeal, an attorney will be appointed to represent you in connection with that appeal. Should you fail to appeal within that ten-day period, it will constitute a waiver of your right to appeal. It is also my duty to elicit from counsel from both sides fully articulated objections to the Court's finding of facts and conclusions of law as announced at this sentencing hearing and to further elicit any objections which either side may have to the manner in which sentence was imposed in this case. Are there any objections from the Government?
MS. HECK MILLER: No, your Honor.
THE COURT: From the Defendant?
MR. WEINGLASS: No, your Honor. But would the Court consider a recommendation with respect to his redesignation?
THE COURT: I'm happy to recommend,
Mr. Weinglass -- if there's a specific area of the country that Mr. Guerrero would like to be in, I'm happy to recommend a physical area of the country. For the most part, I do not find that it's within my expertise nor the province of the Court to make specific recommendations as to either classification designation or specific institutions. I find that that's within the bailiwick of the Bureau of Prisons. But if he wants to be in Florida or as close to Florida as possible or New York or somewhere, I'm happy to make those recommendations. Do you have such a recommendation or a request?
MR. WEINGLASS: No, your Honor.
Mr. Guerrero would like to be returned to Colorado, but to the FCI in Colorado, pursuant to his warden's and his supervisor's -- his counselor's recommendation, which is Attachment 4 to the material --
THE COURT: I'll recommend that he be placed in an institution in Colorado or as close to Colorado as possible, if that's your request. I'll include that in the judgment and commitment order.
MR. WEINGLASS: Thank you, your Honor.
THE COURT: Anything further in this matter?
MS. HECK MILLER: Not from the Government, your Honor.
MR. WEINGLASS: Nothing from Mr. Guerrero.
THE COURT: Thank you. We're in recess in this matter.
(Proceedings concluded.)
C E R T I F I C A T E
I hereby certify that the foregoing is an accurate transcription of the proceedings in the above-entitled matter.
____________ /s/Lisa Edwards_____
DATE LISA EDWARDS, CRR, RMR
Official United States Court Reporter
400 North Miami Avenue, Twelfth Floor
Miami, Florida 33128
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