Giraldo Trujillo-Castillon came to this country from Cuba when he was seventeen.
Like they say, you can take the man out of Cuba, but you can’t take the Cuba out of the man. Or so seemed to believe a federal prosecutor and district court judge.
Mr. Trujillo-Castillon was accused of fraud in federal court.
He pled guilty. He went to sentencing.
An Anti-Cuba Sentencing Hearing
The government asked for the high-end of the sentencing guidelines range. The request was not made because of Mr. Trujillo-Castillon’s conduct, but, rather, because this Assistant United States Attorney doesn’t appear to think well of Cubans. As the Seventh Circuit explained,
Pointing to the defendant’s admission that he viewed fraud differently than violent crimes, the government argued that “it may be possible to explain his stated attitude because of his Cuban heritage. . . . Maybe there is a different attitude toward private property in Cuba.” The government noted Trujillo-Castillon’s statement that his only friend in the United States was his wife, and said that “if you play by the rules, if you join us, if you become American, [you] will have many  friends in the United States.” The government then turned to “why people should come to the United States,” professing that “if he came here because he thought it would be easy, then I would simply suggest that he and others like him either wise up, or don’t come.”
Not to be outdone, Mr. Trujillo-Castillon’s own lawyer explained that perhaps being Cuban has some downsides – in the sense that you’re more likely to commit property crimes. Again, here’s how the Seventh Circuit explained what happened:
Defense counsel did not object to this line of argument; instead, he responded in kind. He explained that there is an “attitude” in Cuba that when you steal “you’re pulling a Robin Hood type of act.” He suggested that many Cuban immigrants have a hard time adjusting to “the American way of life.”
It must have been very lonely to be Mr. Trujillo-Castillon.
I feel for the district judge at this point in the hearing.
On one hand, the parties seem to be arguing about whether it’s so bad to be Cuban that Mr. Trujillo-Castillon should get a lighter sentence, or whether it’s so bad to be Cuban that Mr. Trujillo-Castillon should get a higher sentence.
The judge would naturally feel that it’s ok to stay on the “Cubans are bad” train. Except for the fact that it’s really creepy to sentence someone based on their nationality. Also it violates their Due Process rights.
Here’s how the district court walked the tightrope of animosity toward Cubans:
The court first explained that Trujillo-Castillon’s “lifestyle” cannot “be blamed on Cuba.” It said that his record was reminiscent of “when the Mariel people came over here and created crime waves all over the place”; “When [Fidel] Castro emptied his prisons, and his psychiatric wards, and Jimmy Carter took them all in.” The court continued that, unlike in Cuba, “in America, private property is sacrosanct. It’s not the Government’s property. . . . And that’s the way we live in America. And that’s why it’s a serious offense when you do this.”
The district court then sentenced Mr. Trujillo-Castillo to a sentence seven months above the top of the sentencing guidelines.
Mr. Trujillo-Castillo appealed and the Seventh Circuit remanded the case in United States v. Trujillo-Castillo. The court of appeals started the discussion of the Cuba issue by noting that,
The guidelines make clear that race, sex, national origin, creed, religion, and socio-economic status “are not relevant in the determination of a sentence.” U.S.S.G. § 5H1.10; see also 28 U.S.C. § 994(d) (“The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.”). A sentencing court’s discretion to consider such factors is also constrained by the Constitution. See, e.g., Pepper v. United States, ___ U.S. ___, 131 S. Ct. 1229, 1240 n.8 (2011) (“Of course, sentencing courts’ discretion under § 3661 is subject to constitutional constraints”).
The standard that the court of appeals articulated is that remand is required when a reasonable observer might think that reliance on a prohibited factor influenced the sentence.
In this case, the Seventh Circuit held,
we think that both the government and the sentencing court crossed the very fine line of demarcation separating presentencing statements regarding a defendant’s relationship with a country or its residents who have engaged in similar criminal activity there and statements concerning the race or national origin of the defendant which would violate his due process guarantees.
The court of appeals criticized both the prosecutor and the district court.
The government should have forgone discussing Trujillo-Castillon’s national origin in the first place. And although the court did not expressly adopt the government’s position, it did nothing to reasonably assure the defendant that his Cuban heritage would not factor into its calculus. See id. Instead, the court exacerbated the problem by comparing the defendant’s conduct to the Mariel people who emigrated from Cuba more than thirty years ago. By lumping the defendant in with the Mariel people and expressly contrasting the values held by Americans with people, like the defendant, “who come from Cuba,” the court arguably made Trujillo-Castillon’s national origin a factor at sentencing. A reasonable observer hearing or reading the remarks might certainly think so.
The court of appeals explained that it wasn’t sure if the above-the-guidelines sentence was based on Mr. Trujillo-Castillon’s Cuban nationality or some other characteristic. The appellate court directed the district court to either resentence him based on some other factor or explain that the court wasn’t motivated by an improper dislike for the Cuban people.
Is there any chance the district court is going to say, in effect, “yes, I was impermissibly biased against Cubans, you should get a new lower sentence” on remand?
I’m betting no.