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United States District Court, E.D. California.
UNITED STATES OF AMERICA, Plaintiff,
v.
David Marmalejo ROCHA, Defendant.
No. CR-S-04-0081 WBS.
April 18, 2005.
Defendant, David Marmolejo Rocha, respectfully moves this Court to impose a sentence of five years in this case. The legal bases for this request are as follows: 1) Overstatement of Criminal History; 2) Pre-arrest, Post-offense rehabilitation; 3) Extreme Remorse and Regret, and 4)Combination Of Factors.
INTRODUCTION
The sentencing request in this Memorandum encompasses both pre-and post-Booker sentencing jurisprudence.
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the federal sentencing guidelines are advisory. The Court must consider them, but is free to impose a reasonable sentence after considering the factors set forth in 18 U.S.C. § 3353(a). This Court is fully familiar with Booker, so an extensive discussion is not set forth here. For all the reasons set forth below, David Rocha respectfully requests that the Court impose a sentence of 60 months incarceration.
I. DAVID ROCHA'S BACKGROUND
A. "Sir Dyno"
Mr. Rocha is an extraordinary man. Writer, actor and musician (see Exhibit A), David Rocha spent the 1990's expressing his extraordinary creative energy as "Sir Dyno", one of the nation's most influential artists [FN1] in the world of "Latino rap" music. Thirty-three years old, he is a man of immense creative talent. Exhibits E, M, N, O. Mr. Rocha has written and starred in more than five movies (several of which can still be rented through some Blockbuster video stores), at least four music CD's, including a "Greatest Hits" album; and in 2003 authored and published a novel, Midst of my Confusion (Exhibit A). A "Yahoo" search of his music alone results in 20 "hits". Exhibit B. An "Amazon.com" search for his book brings it up for sale along with six reviews. A search for his movies displays over 18 pages of the products and their reviews.
FN1. The undersigned was unaware of David Rocha's prominence in this kind of popular music until she was contacted by a producer for PBS television who was producing a television documentary about "Latino rap", and wanted to interview "Sir Dyno".
"Latino rap" describes a philosophy as much as a type of music. It describes a particular Chicano subculture, one inhabited by many defendants who pass through this courtroom. The following review of Mr. Rocha's novel is a pretty good summary both of the topic of "Sir Dyno's" artistic expression and his talent:
This work by Sir Dyno is truly a wonderful and poignant semi-biographical/fictional tale of the ... realities of the ... streets. It is a great novel, but at the same time it serves its purpose as a sociological and economical analysis of the "barrio" and offers an insight into the current struggle many Latino youths are faced with day in and day out. The form of expression used by Sir Dyno is completely raw, yet polished with wonderful literary play with words. He takes the words and brings them to life; he expresses his anger and frustration in passionate and tumultuous word schemes. This book will allow the readers to truly engage a reality of the battle-torn streets ... The CD included in the book is also a treasure in itself. The rhyme schemes and the forcefulness of the rap/poetry are hard-hitting and raw (real). This is another notch in Mr. Rocha's belt. From CD's, movies, to busting his way into the world of authors, truly this Chicano from Tracy is a mastermind and hustler of talent. In end, I recommend this book to readers of all genres...Book Review of The Midst of My Confusion, Amazon.com.
David Rocha forged his career as "Sir Dyno" through hard work and resourcefulness. Already writing lyrics and poetry at 16 years old, he gathered some close friends and they built a recording studio. Then, they learned to record and produce their music. This was no easy task. In a interview published when he was 26 years old, David reflected:
The two biggest obstacles we face are that we are a Chicano run business in this black industry... and it makes it harder for us, and that we are not in a large ... region, such as Los Angeles or New York. Coming out of the [San Joaquin] valley...there are no labels here. So if we wanted to make something happen, we had to do it ourselves.... We didn't have access to a studio so I bought my own equipment. I couldn't afford musicians, so I taught myself how to play keys, and drums over the years. We didn't have promoters so we promoted ourselves, we didn't have labels so we learned the ropes of the industry the hard way, but now all those things have made us unstoppable. I have had a least 20 releases in my region. So we probably have one of the strongest fan bases. We have roots deep with our fans.
"Interview with a Chicano: Sir Dyno", BrownPride.com.
While Rocha's music is not "gangster rap", some of his "action movies" do portray Chicano life in the "barrio" through words or action-scenes of guns, drug deals, and prisons. But "Sir Dyno's" work also contains another theme, one which reflects on the tension of growing up a Hispanic male in urban America, immersed in a subculture fraught with violence and drugs, while simultaneously trying to find one's way in mainstream "white" America.
f you listen to all of his music, you hear its message shine through as a cautionary tale to the listener. It's a sounding board or a mirror to reflect on for the community that listens to it. You can hear a caution to not go down certain paths because of consequences Exhibit M.
David's novel, Midst of My Confusion emphasizes the need for the Hispanic community to get educated, to stay away from crime, to live responsibly, and to honor its heritage. The novel's narrator is a gang member who leaves his small town, gets involved in the drug trade, and travels to Mexico. There he learns about his Mexican heritage and the heroes of Mexico's history. In the end, he renounces the gang lifestyle, apologizes to his father for his errors of judgment, and emerges a law-abiding, insightful man.
Mr. Rocha's "Sir Dyno" career was no idle pastime. He supported his family as "Sir Dyno" and still gets royalties from the CD's, movies and book. "Sir Dyno" is a nationally recognized artist.
B. Family and Church
On a superficial level, it might seem surprising to know that Mr. Rocha is a deeply religious man with strong ties to his family and church. Exhibits E-R. By all accounts - family, business acquaintances, church connections, friends - Mr. Rocha is a sincere, intelligent, sensitive, generous, industrious, creative person, a family man in a long-term (over 10 years) relationship, with a close, large extended family, and ongoing involvement in his church. Exhibits P-R.
David worked hard not to let his "Sir Dyno" career interfere with his commitment to his family, particularly his children's education. A quick study and voracious reader, David managed both to make money "rapping" about drugs and prison, and to spend almost all his free time with his family. He devoted hundreds of hours tutoring one of his children - Liana, who is 15 years old and in her high school's AVID [FN2] program - toward their mutual goal for a scholarship for her to Stanford or U.C. Berkeley. Exhibits I, J, L. The requirement of a meaningful higher education devolves to all the Rocha children from David Rocha, his former wife, Michelle, and his long-term partner, Cynthia Lopez (the mother of three of his children). To this end, Mr. Rocha has been an active participant in his children's schools, car pooling the children to school, becoming involved in parent/teacher meetings, classroom activities and field trips, and helping his daughter nightly with homework so she can prepare for college. Exhibits E, J, L, I.
FN2. The AVID program prepares gifted students to go to a four-year college straight out of high school.
He has even remained close friends with first wife, Michelle, with whom he has two daughters. Despite their divorce, the couple made a commitment to raise their children together and without rancor. Exhibits I, J. Although both have other long-term partners, they choose to live near one another to facilitate the joint parenting of their children. She writes, "He is a great father and has shared in the responsibilities of raising our children since day one. We live only minutes from each other which works great for us". Exhibit I. David and his former wife never needed a visitation or child support order from court. Exhibit I.
Mr. Rocha is also very close to his parents and large extended family. See Exhibits F-L. He talks to his own parents every day, (as does his ex-wife). Exhibit I, K. The Rocha family have gone out of their way to encourage (successfully) a friendship between his ex-wife Michelle and his long-term partner Cynthia Lopez, so both families operate practically as one. This, if nothing else, demonstrates the high value David Rocha has placed on his family.
C. Changed Life Since Offense, Before Arrest
David has worked since he was 16 years old. PSR at 10. He believes Cynthia Lopez ought to be able to "stay home" and take care of the house and children, and that it is his obligation to support his family. However, shortly after commission of the offense presently before the court (December 2, 2004) and well before his arrest (February 25, 2004) he decided it was time to quit his "Sir Dyno" career and get a "real" job. Giving up his "Sir Dyno" career was a process, not an event and not a snap decision. He had come to realize that all of his life, "identity and dreams were wrapped in this character I made for myself (Sir Dyno)." Exhibit D. And he was smart enough, and had matured enough, to understand that it was time to unwrap his "identity and dreams" from Sir Dyno because he had outgrown the need to be "Sir Dyno".
Three important events prompted this decision. One was that his daughter, Liana, had begun her sophomore year in high school in September, 2004, and it was more than ever obvious she had a good chance at a full scholarship to a top-caliber college. David Rocha quit his career as "Sir Dyno" in order to make enough money to finance the family's share of Liana's college career. Exhibit I; see also Exhibit J: "Before my dad's arrest, he was working as a loan processor for a mortgage company. It made him proud to know he would be able to help me through college".
Second, the Northern District case in which he was convicted of possession of four grams of methamphetamine contributed to his decision to live a more mainstream lifestyle. As the government observes, "Sir Dyno" helped a prison gang produce a rap CD, which caused prosecutors investigating the gang to believe (incorrectly, as it turned out) Rocha was part of it. Government's Letter at 3. The case was a large-scale RICO prosecution which convicted multiple heavy hitters in a notorious, dangerous gang. But for "Sir Dyno's" fame, he never would have been involved in the case, and at the end of the day, all he got out of it was a conviction. He had not even been sentenced on it yet in Fall, 2004, when, at 32 years old, David concluded that the "Sir Dyno" career was no longer productive for him or for his family.
The third event that sealed his decision to leave the recording world was the offense for which he stands before the Court. Rocha told the undersigned a year ago, and at her request he has tried to explain to the Court, how the commission of the offense was a "life changing experience" for him. Exhibit D. Prior to the actual transaction, he was extremely reluctant to provide drugs when the CI called him. Government's Letter, at 2. Although it isn't reflected in the Government's Letter or the PSR, the fact is that the CI called Rocha repeatedly in an effort to get Rocha to sell him drugs, and David Rocha never initiated phone calls to the CI for the same purpose. David Rocha and Cynthia Lopez would both testify that the CI's frequent telephone calls became so unsettling to David he eventually asked Cynthia to tell "the man" that he was not home when he called. On the other hand, Christmas was rapidly approaching and he wanted to give presents to his children and family.
Testimony would reveal that the same night he transacted the drug deal underlying this case, Rocha told Cynthia Lopez that he was ready to quit being "Sir Dyno" and get a mainstream job. After midnight on December 2, he called his parents and his brother Angel Rocha (a minister) and asked them to come over, which they did. Exhibit D. He told them he needed them to pray for him, and then he swore to them that he was going to abandon his "Sir Dyno" career because "the messages in my movies and music felt morally wrong". Exhibit D. Something about his interactions with the CI shook David to his core. Exhibit D. What he did felt wrong, immoral, disloyal to his family. Exhibit D.
Therefore, days after the drug transaction, David abandoned his "Sir Dyno" career. He stopped writing and recording music. Exhibit D at 2. David started to search for a job that would get his daughter through college and take him away from the "Sir Dyno" influences. In January, 2004, he was hired by Hilltop Mortgage as a loan officer consultant for home loans. Although he had
no skills for this job I was still given the chance...it was the first job I had in over 12 years. I finally felt as if I could clear my conscience. I no longer needed to share my life between family and being a rap star. Exhibit D.
This new job (and "divorce" from "Sir Dyno") appears to have been one of the best things that ever happened to David. He was excited and challenged in his new job. Exhibits G, I, J, L, M. He felt he could now help send Liana to college. His facility with computers impressed his co-workers. Exhibit G. He felt that in finding a new career, he had found himself.
Always a regular church goer, he began to attend church even more often after December 2, 2003. Exhibits D, M, N, P, Q. R. His job was working out, he was successfully separating from the "Sir Dyno" lifestyle, and it seemed everything had come together for David - until February 25, 2004, three months after the transaction, when he got arrested. And when that happened, consistent with his "vow to change [his] life", Exhibit D at 1, David confessed immediately and promptly started to cooperate with law enforcement as to the identity of his drug source. Government's Letter at 2. If he'd had any more information to provide, he would have.
D. Post-Arrest Life
1. Jail
Since his arrest David Rocha has been confined in the Sacramento County Jail. His performance there has been nothing less than stellar. He is the only client the undersigned has ever had who has submitted a Letter of Support from a jail corrections officer, Deputy Waterstradt, Exhibit C. He writes that David has been a "model inmate and trusted worker for many months...[who is] well on his way to rehabilitation." Exhibit C. David became a trustee at the jail in Fall, 2004. Selection of trustees is based on conduct, behavior and trust. He not only attends Bible study, he teaches it, and he has submitted to the undersigned over 50 pages of notes. Half he has taken during class, and the rest (19 lessons) he has written on his own, both for self-education and teaching his Bible class. These are available for the Court's consideration if it desires. He arranged a viewing of the "Passion of the Christ" for interested inmates at the jail over Christmastime. These activities he undertook even though he was threatened by other inmates for trying to "steer gang members away from old lifestyles". Exhibit D at 4. [FN3]
FN3. These threats by other inmates were confirmed by the undersigned, who offered to get David moved to the Yolo County facility. He refused, concluding that the inmates who threatened him the most were the ones who most needed his influence.
2. Remorse
David is one of the most remorseful clients ever to stand before this Court. The large number of people who have commented (unsolicited) on his extreme remorse is persuasive evidence of its authenticity. E.g., Exhibits E, G, H, I, J, K, L, N, P, Q. On Christmas, 2004, he asked to speak to every one of his family members so he could ask their forgiveness. Exhibit K (according to David's parents, David expressed his feeling that he "had to pay for what he did", and did not ask his family to pray for his release, but for the Court to give careful consideration of his sentence). Reverend Coss observes that David expressed his deep remorse and is ready to accept his due punishment. Exhibit R. Pastor Shivers writes, "...with my experience I can see through facades and recognize one who truly desires to change and has the inner strength and the support network to facilitate those changes. David is on of those rare individuals who I believe has strength, determination and support necessary to become a truly valued citizen in our community." Exhibit P. David has apologized numerous times to his daughter Liana, both in person, in letters and on the phone. Exhibit J. There is no doubt he has affected her chances of being able to afford to attend Stanford University or U.C. Berkeley.
E. Criminal History
David Rocha does have two prior convictions. His 1988 conviction involved 88 grams of methamphetamine, his 2001 only four grams. Government's Letter at 3.
II. LAW AND ARGUMENT FOR 60-MONTH SENTENCE
A. Overstatement of Criminal History: USSG §4A1.3(b)(1)
USSG §4A1.3(b)(1) reads in relevant part that a sentencing court may make a downward departure if "the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes."
The defense submits that David Rocha qualifies for a downward departure under both parts of the guideline.
Even before Booker, the Ninth Circuit expressly approved downward departures for overrepresentation. See United States v. Reyes, 8 F.3d 1379, 1382-89 (9th Cir. 1993). In Reyes, the district judge departed from the career offender offense level of 32 (210-262 months) to an offense level of 14 (33-41 months), and imposed a sentence of 33 months. Id. at 1382. The departure was based on overstatement of criminal history under section 4A1.3. Applying the guidelines policy statement, the Ninth Circuit affirmed the district court's decision that Reyes' criminal history suggested that he was a "comparatively minor offender." The court explained that the penalty range "afforded simply does not reflect the degree of differential in the seriousness of underlying criminal histories or offenses." Id. at 1386. See also United States v. Rios-Favela, 118 F.3d 653, 658 (9th Cir. 1997)(horizontal departures based on overstatement of criminal history are authorized).
To arrive at the new Criminal History Category in Reyes, the court calculated the defendant's guidelines without applying the career offender enhancement. Id. at 1381.
Also, in United States v. Lawrence, 916 F.2d 553, 555 (1990), the Ninth Circuit held that a district court has the discretion to make a downward departure from "career offender" provisions on the basis of USSG §4A1.3 when the defendant's criminal history category significantly over-represents the seriousness of his criminal history. In that case, the defendant pled guilty to possession of over 100 marijuana plants with intent to distribute. Like Mr. Rocha, he had two prior predicate state convictions. Like Mr. Rocha, the defendant in Lawrence faced a career offender sentence USSG 4B1.1 based only on his two prior convictions.
Declining to reduce the defendant's sentence for overstatement of criminal history, the district court in Lawrence instead departed downward from the career offender guideline on part because there was psychiatric testimony that the defendant's likelihood of recidivism was low and that the defendant was not violent or antisocial. As in Reyes, the sentence imposed was ultimately what the defendant would have gotten without the career offender enhancement--i.e., applying the sentence for his drug case to the criminal history level the defendant would have been without the career offender criminal-history enhancement.
The government appealed but the Ninth Circuit affirmed on grounds that the district court had derived its authority to make the downward departure on the policy statement contained in USSG §4A1.3.
Here, all parties - Probation, the government and the defense - agree Mr. Rocha's criminal history is overstated. PSR at 13 (recommends CH departure of one Category, to Category V); Government's Letter at 3.
In conjunction with Lawrence and Reyes, the defense moves the Court to depart to the Category David Rocha would be without the advisory Career Offender Criminal History adjustment: a Category III. His 1998 conviction gave him two criminal history points. PSR at 8. His 2001 conviction gave him one point PSR at 8 (note: he has not yet been sentenced in that case, and yet still gets one criminal history point for it. Moreover, the district court in his Northern District case may be bound to impose a consecutive sentence on Mr. Rocha after this Court sentences him. USSG §2J1.7.)
Two more Criminal History points must be added because David was on pretrial release when this offense occurred. USSG §4A1.1(d). He thus has five Criminal History points, which results in a Criminal History Category III. Category III applied to Offense Level 34 results in a sentence range of 188-235 months. We submit that the 50% departure [FN4] urged by the government, Government's Letter at 3, should be taken from 188 months, and not from the 235 months recommended by Probation, PSR at 13.
FN4. The government moves for a 49% departure, but then agrees in addition that Rocha's criminal history is overstated by one category.
Fifty percent of 188 months results in a 94-month sentence.
A finding that David Rocha is unlikely to recidivate is an equally proper ground on which to find his Criminal History is overstated. See USSG §4A1.3; and see Lawrence, 916 F.2d 553. We believe we have shown David will not recidivate, especially by the 19 letters of support written not only by family members, but by work associates and social worker/ministers adept at recognizing genuine contrition and true intention (and strength) to reform.
B. Pre-Arrest, Post-Offense Rehabilitation
Three principles are clear, and all are reiterated by the holding in the Booker case. First, "t 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." Koon v. United States, 518 U.S. 81, 113 (1996). Second, "[t]he successful rehabilitation of a criminal ... is a valuable achievement of the criminal process." United States v. Core, 125 F.3d 74, 78 (2d Cir. 1997). Third, "a court's duty is always to sentence the defendant as he stands before the court on the day of sentencing." United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000). Mr. Rocha asks the Court to give due recognition to these principles in fashioning the sentence to be imposed.
In the context of this departure, Mr. Rocha's case is compelling because it shows not only post-offense rehabilitation, but post-offense, pre-arrest rehabilitation: David started to rehabilitate himself before he even knew he was going to be arrested. A departure upon post-offense rehabilitation grounds has been specifically approved by the Ninth Circuit (see United States v. Green, 152 F.3d 1202, 1207 (9th Cir. 1998) (eleven-level departure to 30 days custody and 3 years supervised release for post-sentencing rehabilitation in performing community service).
There is no bright-line rule as to what is required to warrant a departure for rehabilitative efforts. "[A] tentative step towards rehabilitation is not usually enough to warrant a downward departure." United States v. Williams, 65 F.3d 301 (2d Cir. 1995) (departure from 130-162 month guideline range to 60- month sentence for post-offense rehabilitation). Similarly, more is required than is required for the adjustment for acceptance of responsibility. Indeed, because the Sentencing Guidelines mention "post-offense rehabilitative efforts" as a consideration in deciding whether an acceptance of responsibility adjustment is appropriate, see USSG §3E1.1 N.1(g), the post-offense rehabilitative efforts necessary for a departure must be of such a nature and extent as to remove the case from the heartland of the acceptance of responsibility guideline. See United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997): "Post-offense rehabilitation may provide an appropriate ground for departure only when present to such an exceptional degree that the situation cannot be considered typical of those circumstances in which an acceptance of responsibility adjustment is granted"; United States v. Rhodes, 145 F.3d 1375, 1383 (D.C. Cir. 1998) (accord).
While many post-offense rehabilitation cases pertain specifically to successful post-offense attempts to stop using drugs, Mr. Rocha's case is equally if not more compelling because 1) his rehabilitation efforts began before he was arrested, and without knowing he was going to be arrested, 2) he immediately confessed and started to cooperate with the authorities without a thought of any section 5K consideration, and 2) his post-offense rehabilitation success involves his total lifestyle, not just recovery from drug use.
C. Extreme Remorse
A defendant's extreme remorse is an appropriate factor to consider under section 3553(a). See United States v. Jaroszenko, 92 F.3d 486, 491 (7th Cir. 1996)(defendant's remorse). As we have proved, Mr. Rocha has demonstrated profound remorse and regret for his actions. Exhibits E, G, H, I, J, K, L, N, P, Q.
D. Combination of Factors
Finally, the Court should impose a lower sentence based on the entire combination of factors present in this case, including that contained in the Government's Letter. Prior to Booker, where any single factor alone would not constitute departure grounds, the combination of several factors taken together may encourage departure. United States v. Cook, 938 F.2d 149, 153 (9th Cir. 1991); U.S.S.G. § 5K2.0. After Booker, all of the factors discussed above in combination support a lower sentence.
Therefore, we request the Court to impose sentence as follows:
*Overstatement of Criminal History: restore Mr. Rocha's non-mandatory Career Offender Criminal History Category to where it would be without the Career Offender enhancement: Category III, or a low-end of 188 months;
*Government's Motion: deduct 50% from 188 months for a sentence of 94 months;
*Pre-Arrest and Post-Offense Rehabilitation, Extreme Remorse and Combination of Factors: deduct 34 months for a sentence of 60 months incarceration.
CONCLUSION
For all the reasons discussed above, as well as any that may be offered in oral argument, David Rocha respectfully requests this Court to impose a sentence of 60 months incarceration, a one-day consecutive sentence pursuant to 18 USC §1347, and whatever term of Supervised Release the Court deems appropriate.
Dated: April 17, 2005
Respectfully submitted,
QUIN DENVIR
Federal Defender
/s/ Caro Marks
CARO MARKS
Assistant Federal Defender
Attorney for Defendant
DAVID MARMALEJO ROCHA
Appendix not available.
United States District Court, E.D. California.
UNITED STATES OF AMERICA, Plaintiff,
v.
David Marmalejo ROCHA, Defendant.
No. CR-S-04-0081 WBS.
April 18, 2005.
Defendant, David Marmolejo Rocha, respectfully moves this Court to impose a sentence of five years in this case. The legal bases for this request are as follows: 1) Overstatement of Criminal History; 2) Pre-arrest, Post-offense rehabilitation; 3) Extreme Remorse and Regret, and 4)Combination Of Factors.
INTRODUCTION
The sentencing request in this Memorandum encompasses both pre-and post-Booker sentencing jurisprudence.
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the federal sentencing guidelines are advisory. The Court must consider them, but is free to impose a reasonable sentence after considering the factors set forth in 18 U.S.C. § 3353(a). This Court is fully familiar with Booker, so an extensive discussion is not set forth here. For all the reasons set forth below, David Rocha respectfully requests that the Court impose a sentence of 60 months incarceration.
I. DAVID ROCHA'S BACKGROUND
A. "Sir Dyno"
Mr. Rocha is an extraordinary man. Writer, actor and musician (see Exhibit A), David Rocha spent the 1990's expressing his extraordinary creative energy as "Sir Dyno", one of the nation's most influential artists [FN1] in the world of "Latino rap" music. Thirty-three years old, he is a man of immense creative talent. Exhibits E, M, N, O. Mr. Rocha has written and starred in more than five movies (several of which can still be rented through some Blockbuster video stores), at least four music CD's, including a "Greatest Hits" album; and in 2003 authored and published a novel, Midst of my Confusion (Exhibit A). A "Yahoo" search of his music alone results in 20 "hits". Exhibit B. An "Amazon.com" search for his book brings it up for sale along with six reviews. A search for his movies displays over 18 pages of the products and their reviews.
FN1. The undersigned was unaware of David Rocha's prominence in this kind of popular music until she was contacted by a producer for PBS television who was producing a television documentary about "Latino rap", and wanted to interview "Sir Dyno".
"Latino rap" describes a philosophy as much as a type of music. It describes a particular Chicano subculture, one inhabited by many defendants who pass through this courtroom. The following review of Mr. Rocha's novel is a pretty good summary both of the topic of "Sir Dyno's" artistic expression and his talent:
This work by Sir Dyno is truly a wonderful and poignant semi-biographical/fictional tale of the ... realities of the ... streets. It is a great novel, but at the same time it serves its purpose as a sociological and economical analysis of the "barrio" and offers an insight into the current struggle many Latino youths are faced with day in and day out. The form of expression used by Sir Dyno is completely raw, yet polished with wonderful literary play with words. He takes the words and brings them to life; he expresses his anger and frustration in passionate and tumultuous word schemes. This book will allow the readers to truly engage a reality of the battle-torn streets ... The CD included in the book is also a treasure in itself. The rhyme schemes and the forcefulness of the rap/poetry are hard-hitting and raw (real). This is another notch in Mr. Rocha's belt. From CD's, movies, to busting his way into the world of authors, truly this Chicano from Tracy is a mastermind and hustler of talent. In end, I recommend this book to readers of all genres...Book Review of The Midst of My Confusion, Amazon.com.
David Rocha forged his career as "Sir Dyno" through hard work and resourcefulness. Already writing lyrics and poetry at 16 years old, he gathered some close friends and they built a recording studio. Then, they learned to record and produce their music. This was no easy task. In a interview published when he was 26 years old, David reflected:
The two biggest obstacles we face are that we are a Chicano run business in this black industry... and it makes it harder for us, and that we are not in a large ... region, such as Los Angeles or New York. Coming out of the [San Joaquin] valley...there are no labels here. So if we wanted to make something happen, we had to do it ourselves.... We didn't have access to a studio so I bought my own equipment. I couldn't afford musicians, so I taught myself how to play keys, and drums over the years. We didn't have promoters so we promoted ourselves, we didn't have labels so we learned the ropes of the industry the hard way, but now all those things have made us unstoppable. I have had a least 20 releases in my region. So we probably have one of the strongest fan bases. We have roots deep with our fans.
"Interview with a Chicano: Sir Dyno", BrownPride.com.
While Rocha's music is not "gangster rap", some of his "action movies" do portray Chicano life in the "barrio" through words or action-scenes of guns, drug deals, and prisons. But "Sir Dyno's" work also contains another theme, one which reflects on the tension of growing up a Hispanic male in urban America, immersed in a subculture fraught with violence and drugs, while simultaneously trying to find one's way in mainstream "white" America.
f you listen to all of his music, you hear its message shine through as a cautionary tale to the listener. It's a sounding board or a mirror to reflect on for the community that listens to it. You can hear a caution to not go down certain paths because of consequences Exhibit M.
David's novel, Midst of My Confusion emphasizes the need for the Hispanic community to get educated, to stay away from crime, to live responsibly, and to honor its heritage. The novel's narrator is a gang member who leaves his small town, gets involved in the drug trade, and travels to Mexico. There he learns about his Mexican heritage and the heroes of Mexico's history. In the end, he renounces the gang lifestyle, apologizes to his father for his errors of judgment, and emerges a law-abiding, insightful man.
Mr. Rocha's "Sir Dyno" career was no idle pastime. He supported his family as "Sir Dyno" and still gets royalties from the CD's, movies and book. "Sir Dyno" is a nationally recognized artist.
B. Family and Church
On a superficial level, it might seem surprising to know that Mr. Rocha is a deeply religious man with strong ties to his family and church. Exhibits E-R. By all accounts - family, business acquaintances, church connections, friends - Mr. Rocha is a sincere, intelligent, sensitive, generous, industrious, creative person, a family man in a long-term (over 10 years) relationship, with a close, large extended family, and ongoing involvement in his church. Exhibits P-R.
David worked hard not to let his "Sir Dyno" career interfere with his commitment to his family, particularly his children's education. A quick study and voracious reader, David managed both to make money "rapping" about drugs and prison, and to spend almost all his free time with his family. He devoted hundreds of hours tutoring one of his children - Liana, who is 15 years old and in her high school's AVID [FN2] program - toward their mutual goal for a scholarship for her to Stanford or U.C. Berkeley. Exhibits I, J, L. The requirement of a meaningful higher education devolves to all the Rocha children from David Rocha, his former wife, Michelle, and his long-term partner, Cynthia Lopez (the mother of three of his children). To this end, Mr. Rocha has been an active participant in his children's schools, car pooling the children to school, becoming involved in parent/teacher meetings, classroom activities and field trips, and helping his daughter nightly with homework so she can prepare for college. Exhibits E, J, L, I.
FN2. The AVID program prepares gifted students to go to a four-year college straight out of high school.
He has even remained close friends with first wife, Michelle, with whom he has two daughters. Despite their divorce, the couple made a commitment to raise their children together and without rancor. Exhibits I, J. Although both have other long-term partners, they choose to live near one another to facilitate the joint parenting of their children. She writes, "He is a great father and has shared in the responsibilities of raising our children since day one. We live only minutes from each other which works great for us". Exhibit I. David and his former wife never needed a visitation or child support order from court. Exhibit I.
Mr. Rocha is also very close to his parents and large extended family. See Exhibits F-L. He talks to his own parents every day, (as does his ex-wife). Exhibit I, K. The Rocha family have gone out of their way to encourage (successfully) a friendship between his ex-wife Michelle and his long-term partner Cynthia Lopez, so both families operate practically as one. This, if nothing else, demonstrates the high value David Rocha has placed on his family.
C. Changed Life Since Offense, Before Arrest
David has worked since he was 16 years old. PSR at 10. He believes Cynthia Lopez ought to be able to "stay home" and take care of the house and children, and that it is his obligation to support his family. However, shortly after commission of the offense presently before the court (December 2, 2004) and well before his arrest (February 25, 2004) he decided it was time to quit his "Sir Dyno" career and get a "real" job. Giving up his "Sir Dyno" career was a process, not an event and not a snap decision. He had come to realize that all of his life, "identity and dreams were wrapped in this character I made for myself (Sir Dyno)." Exhibit D. And he was smart enough, and had matured enough, to understand that it was time to unwrap his "identity and dreams" from Sir Dyno because he had outgrown the need to be "Sir Dyno".
Three important events prompted this decision. One was that his daughter, Liana, had begun her sophomore year in high school in September, 2004, and it was more than ever obvious she had a good chance at a full scholarship to a top-caliber college. David Rocha quit his career as "Sir Dyno" in order to make enough money to finance the family's share of Liana's college career. Exhibit I; see also Exhibit J: "Before my dad's arrest, he was working as a loan processor for a mortgage company. It made him proud to know he would be able to help me through college".
Second, the Northern District case in which he was convicted of possession of four grams of methamphetamine contributed to his decision to live a more mainstream lifestyle. As the government observes, "Sir Dyno" helped a prison gang produce a rap CD, which caused prosecutors investigating the gang to believe (incorrectly, as it turned out) Rocha was part of it. Government's Letter at 3. The case was a large-scale RICO prosecution which convicted multiple heavy hitters in a notorious, dangerous gang. But for "Sir Dyno's" fame, he never would have been involved in the case, and at the end of the day, all he got out of it was a conviction. He had not even been sentenced on it yet in Fall, 2004, when, at 32 years old, David concluded that the "Sir Dyno" career was no longer productive for him or for his family.
The third event that sealed his decision to leave the recording world was the offense for which he stands before the Court. Rocha told the undersigned a year ago, and at her request he has tried to explain to the Court, how the commission of the offense was a "life changing experience" for him. Exhibit D. Prior to the actual transaction, he was extremely reluctant to provide drugs when the CI called him. Government's Letter, at 2. Although it isn't reflected in the Government's Letter or the PSR, the fact is that the CI called Rocha repeatedly in an effort to get Rocha to sell him drugs, and David Rocha never initiated phone calls to the CI for the same purpose. David Rocha and Cynthia Lopez would both testify that the CI's frequent telephone calls became so unsettling to David he eventually asked Cynthia to tell "the man" that he was not home when he called. On the other hand, Christmas was rapidly approaching and he wanted to give presents to his children and family.
Testimony would reveal that the same night he transacted the drug deal underlying this case, Rocha told Cynthia Lopez that he was ready to quit being "Sir Dyno" and get a mainstream job. After midnight on December 2, he called his parents and his brother Angel Rocha (a minister) and asked them to come over, which they did. Exhibit D. He told them he needed them to pray for him, and then he swore to them that he was going to abandon his "Sir Dyno" career because "the messages in my movies and music felt morally wrong". Exhibit D. Something about his interactions with the CI shook David to his core. Exhibit D. What he did felt wrong, immoral, disloyal to his family. Exhibit D.
Therefore, days after the drug transaction, David abandoned his "Sir Dyno" career. He stopped writing and recording music. Exhibit D at 2. David started to search for a job that would get his daughter through college and take him away from the "Sir Dyno" influences. In January, 2004, he was hired by Hilltop Mortgage as a loan officer consultant for home loans. Although he had
no skills for this job I was still given the chance...it was the first job I had in over 12 years. I finally felt as if I could clear my conscience. I no longer needed to share my life between family and being a rap star. Exhibit D.
This new job (and "divorce" from "Sir Dyno") appears to have been one of the best things that ever happened to David. He was excited and challenged in his new job. Exhibits G, I, J, L, M. He felt he could now help send Liana to college. His facility with computers impressed his co-workers. Exhibit G. He felt that in finding a new career, he had found himself.
Always a regular church goer, he began to attend church even more often after December 2, 2003. Exhibits D, M, N, P, Q. R. His job was working out, he was successfully separating from the "Sir Dyno" lifestyle, and it seemed everything had come together for David - until February 25, 2004, three months after the transaction, when he got arrested. And when that happened, consistent with his "vow to change [his] life", Exhibit D at 1, David confessed immediately and promptly started to cooperate with law enforcement as to the identity of his drug source. Government's Letter at 2. If he'd had any more information to provide, he would have.
D. Post-Arrest Life
1. Jail
Since his arrest David Rocha has been confined in the Sacramento County Jail. His performance there has been nothing less than stellar. He is the only client the undersigned has ever had who has submitted a Letter of Support from a jail corrections officer, Deputy Waterstradt, Exhibit C. He writes that David has been a "model inmate and trusted worker for many months...[who is] well on his way to rehabilitation." Exhibit C. David became a trustee at the jail in Fall, 2004. Selection of trustees is based on conduct, behavior and trust. He not only attends Bible study, he teaches it, and he has submitted to the undersigned over 50 pages of notes. Half he has taken during class, and the rest (19 lessons) he has written on his own, both for self-education and teaching his Bible class. These are available for the Court's consideration if it desires. He arranged a viewing of the "Passion of the Christ" for interested inmates at the jail over Christmastime. These activities he undertook even though he was threatened by other inmates for trying to "steer gang members away from old lifestyles". Exhibit D at 4. [FN3]
FN3. These threats by other inmates were confirmed by the undersigned, who offered to get David moved to the Yolo County facility. He refused, concluding that the inmates who threatened him the most were the ones who most needed his influence.
2. Remorse
David is one of the most remorseful clients ever to stand before this Court. The large number of people who have commented (unsolicited) on his extreme remorse is persuasive evidence of its authenticity. E.g., Exhibits E, G, H, I, J, K, L, N, P, Q. On Christmas, 2004, he asked to speak to every one of his family members so he could ask their forgiveness. Exhibit K (according to David's parents, David expressed his feeling that he "had to pay for what he did", and did not ask his family to pray for his release, but for the Court to give careful consideration of his sentence). Reverend Coss observes that David expressed his deep remorse and is ready to accept his due punishment. Exhibit R. Pastor Shivers writes, "...with my experience I can see through facades and recognize one who truly desires to change and has the inner strength and the support network to facilitate those changes. David is on of those rare individuals who I believe has strength, determination and support necessary to become a truly valued citizen in our community." Exhibit P. David has apologized numerous times to his daughter Liana, both in person, in letters and on the phone. Exhibit J. There is no doubt he has affected her chances of being able to afford to attend Stanford University or U.C. Berkeley.
E. Criminal History
David Rocha does have two prior convictions. His 1988 conviction involved 88 grams of methamphetamine, his 2001 only four grams. Government's Letter at 3.
II. LAW AND ARGUMENT FOR 60-MONTH SENTENCE
A. Overstatement of Criminal History: USSG §4A1.3(b)(1)
USSG §4A1.3(b)(1) reads in relevant part that a sentencing court may make a downward departure if "the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes."
The defense submits that David Rocha qualifies for a downward departure under both parts of the guideline.
Even before Booker, the Ninth Circuit expressly approved downward departures for overrepresentation. See United States v. Reyes, 8 F.3d 1379, 1382-89 (9th Cir. 1993). In Reyes, the district judge departed from the career offender offense level of 32 (210-262 months) to an offense level of 14 (33-41 months), and imposed a sentence of 33 months. Id. at 1382. The departure was based on overstatement of criminal history under section 4A1.3. Applying the guidelines policy statement, the Ninth Circuit affirmed the district court's decision that Reyes' criminal history suggested that he was a "comparatively minor offender." The court explained that the penalty range "afforded simply does not reflect the degree of differential in the seriousness of underlying criminal histories or offenses." Id. at 1386. See also United States v. Rios-Favela, 118 F.3d 653, 658 (9th Cir. 1997)(horizontal departures based on overstatement of criminal history are authorized).
To arrive at the new Criminal History Category in Reyes, the court calculated the defendant's guidelines without applying the career offender enhancement. Id. at 1381.
Also, in United States v. Lawrence, 916 F.2d 553, 555 (1990), the Ninth Circuit held that a district court has the discretion to make a downward departure from "career offender" provisions on the basis of USSG §4A1.3 when the defendant's criminal history category significantly over-represents the seriousness of his criminal history. In that case, the defendant pled guilty to possession of over 100 marijuana plants with intent to distribute. Like Mr. Rocha, he had two prior predicate state convictions. Like Mr. Rocha, the defendant in Lawrence faced a career offender sentence USSG 4B1.1 based only on his two prior convictions.
Declining to reduce the defendant's sentence for overstatement of criminal history, the district court in Lawrence instead departed downward from the career offender guideline on part because there was psychiatric testimony that the defendant's likelihood of recidivism was low and that the defendant was not violent or antisocial. As in Reyes, the sentence imposed was ultimately what the defendant would have gotten without the career offender enhancement--i.e., applying the sentence for his drug case to the criminal history level the defendant would have been without the career offender criminal-history enhancement.
The government appealed but the Ninth Circuit affirmed on grounds that the district court had derived its authority to make the downward departure on the policy statement contained in USSG §4A1.3.
Here, all parties - Probation, the government and the defense - agree Mr. Rocha's criminal history is overstated. PSR at 13 (recommends CH departure of one Category, to Category V); Government's Letter at 3.
In conjunction with Lawrence and Reyes, the defense moves the Court to depart to the Category David Rocha would be without the advisory Career Offender Criminal History adjustment: a Category III. His 1998 conviction gave him two criminal history points. PSR at 8. His 2001 conviction gave him one point PSR at 8 (note: he has not yet been sentenced in that case, and yet still gets one criminal history point for it. Moreover, the district court in his Northern District case may be bound to impose a consecutive sentence on Mr. Rocha after this Court sentences him. USSG §2J1.7.)
Two more Criminal History points must be added because David was on pretrial release when this offense occurred. USSG §4A1.1(d). He thus has five Criminal History points, which results in a Criminal History Category III. Category III applied to Offense Level 34 results in a sentence range of 188-235 months. We submit that the 50% departure [FN4] urged by the government, Government's Letter at 3, should be taken from 188 months, and not from the 235 months recommended by Probation, PSR at 13.
FN4. The government moves for a 49% departure, but then agrees in addition that Rocha's criminal history is overstated by one category.
Fifty percent of 188 months results in a 94-month sentence.
A finding that David Rocha is unlikely to recidivate is an equally proper ground on which to find his Criminal History is overstated. See USSG §4A1.3; and see Lawrence, 916 F.2d 553. We believe we have shown David will not recidivate, especially by the 19 letters of support written not only by family members, but by work associates and social worker/ministers adept at recognizing genuine contrition and true intention (and strength) to reform.
B. Pre-Arrest, Post-Offense Rehabilitation
Three principles are clear, and all are reiterated by the holding in the Booker case. First, "t 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." Koon v. United States, 518 U.S. 81, 113 (1996). Second, "[t]he successful rehabilitation of a criminal ... is a valuable achievement of the criminal process." United States v. Core, 125 F.3d 74, 78 (2d Cir. 1997). Third, "a court's duty is always to sentence the defendant as he stands before the court on the day of sentencing." United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000). Mr. Rocha asks the Court to give due recognition to these principles in fashioning the sentence to be imposed.
In the context of this departure, Mr. Rocha's case is compelling because it shows not only post-offense rehabilitation, but post-offense, pre-arrest rehabilitation: David started to rehabilitate himself before he even knew he was going to be arrested. A departure upon post-offense rehabilitation grounds has been specifically approved by the Ninth Circuit (see United States v. Green, 152 F.3d 1202, 1207 (9th Cir. 1998) (eleven-level departure to 30 days custody and 3 years supervised release for post-sentencing rehabilitation in performing community service).
There is no bright-line rule as to what is required to warrant a departure for rehabilitative efforts. "[A] tentative step towards rehabilitation is not usually enough to warrant a downward departure." United States v. Williams, 65 F.3d 301 (2d Cir. 1995) (departure from 130-162 month guideline range to 60- month sentence for post-offense rehabilitation). Similarly, more is required than is required for the adjustment for acceptance of responsibility. Indeed, because the Sentencing Guidelines mention "post-offense rehabilitative efforts" as a consideration in deciding whether an acceptance of responsibility adjustment is appropriate, see USSG §3E1.1 N.1(g), the post-offense rehabilitative efforts necessary for a departure must be of such a nature and extent as to remove the case from the heartland of the acceptance of responsibility guideline. See United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997): "Post-offense rehabilitation may provide an appropriate ground for departure only when present to such an exceptional degree that the situation cannot be considered typical of those circumstances in which an acceptance of responsibility adjustment is granted"; United States v. Rhodes, 145 F.3d 1375, 1383 (D.C. Cir. 1998) (accord).
While many post-offense rehabilitation cases pertain specifically to successful post-offense attempts to stop using drugs, Mr. Rocha's case is equally if not more compelling because 1) his rehabilitation efforts began before he was arrested, and without knowing he was going to be arrested, 2) he immediately confessed and started to cooperate with the authorities without a thought of any section 5K consideration, and 2) his post-offense rehabilitation success involves his total lifestyle, not just recovery from drug use.
C. Extreme Remorse
A defendant's extreme remorse is an appropriate factor to consider under section 3553(a). See United States v. Jaroszenko, 92 F.3d 486, 491 (7th Cir. 1996)(defendant's remorse). As we have proved, Mr. Rocha has demonstrated profound remorse and regret for his actions. Exhibits E, G, H, I, J, K, L, N, P, Q.
D. Combination of Factors
Finally, the Court should impose a lower sentence based on the entire combination of factors present in this case, including that contained in the Government's Letter. Prior to Booker, where any single factor alone would not constitute departure grounds, the combination of several factors taken together may encourage departure. United States v. Cook, 938 F.2d 149, 153 (9th Cir. 1991); U.S.S.G. § 5K2.0. After Booker, all of the factors discussed above in combination support a lower sentence.
Therefore, we request the Court to impose sentence as follows:
*Overstatement of Criminal History: restore Mr. Rocha's non-mandatory Career Offender Criminal History Category to where it would be without the Career Offender enhancement: Category III, or a low-end of 188 months;
*Government's Motion: deduct 50% from 188 months for a sentence of 94 months;
*Pre-Arrest and Post-Offense Rehabilitation, Extreme Remorse and Combination of Factors: deduct 34 months for a sentence of 60 months incarceration.
CONCLUSION
For all the reasons discussed above, as well as any that may be offered in oral argument, David Rocha respectfully requests this Court to impose a sentence of 60 months incarceration, a one-day consecutive sentence pursuant to 18 USC §1347, and whatever term of Supervised Release the Court deems appropriate.
Dated: April 17, 2005
Respectfully submitted,
QUIN DENVIR
Federal Defender
/s/ Caro Marks
CARO MARKS
Assistant Federal Defender
Attorney for Defendant
DAVID MARMALEJO ROCHA
Appendix not available.
