Marco Antonio Delgado, the prominent El Paso attorney who was convicted, in US District Court, of Conspiracy to commit Money Laundering for a Mexican cartel, will be resentenced on October 15, 2015. I frankly did not assign his appeal a high probability of success, but surprisingly, the appeals court, examined the facts, vacated his sentence, and remanded the case back to the trial court.
If you have not been following the case, the Fifth Circuit Court of Appeals found as follows:
(1) The 30-level enhancement, based upon the allegation that the defendant intended to launder $400m, was improper, because the facts did not show that he was capable of laundering that sum.
(2) The 4-level enhancement applied, when the defendant was found to be in the business of laundering funds, was not established by the evidence. There were no regular money laundering operations in the record.
(3) the 2-level enhancement, for Abuse of a Position of Trust, or use of Special Skill," was not supported in the Pre-sentence Report and his status as an attorney alone was not sufficient. There was no specific basis, in the PSR, under which the two-level enhancement should be applied.
(4) The 4-level enhancement, based upon the defendant's role as a leader or organizer of criminal activity, is likely appropriate, but the trial judge must first determine the "proper application of the enhancement," meaning that the Court cannot base it upon a finding of special skills.
It is entirely possible that human factors were involved in loading up the defendant with every possible enhancement, for he surely alienated those law enforcement agents with whom he was acting as a cooperating individual for, when he lied about his activities, and committed further crimes. Perhaps someone chose to make an example out of him, but there apparently was no factual basis to support the damaging enhancements that were applied to him by the Court, on the urging of the US Attorneys' office. You should note that the judge has now recused himself, and the defendant's attorney of record has withdrawn, in advance of the resentencing hearing.
Readers who wish to review the complete text of the fourteen page Opinion, can do so here*.
*United States vs. Marco Delgado, Case No.: 14-50079 (WD TX)