IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA,

Plaintiff,

v. CRIMINAL NO. 18-239 (GAG)

CARLOS E. REYES-ROSADO,
aka FARRUKO

Defendant

UNITED STATES’ SENTENCING MEMORANDUM

TO THE HONORABLE COURT:

COMES NOW the United States of America, through its attorneys and very respectfully

states and prays as follows:

I. Background

“Every lie we tell incurs a debt to the truth”.

1. On April 2nd, 2018, defendant Carlos E. Reyes-Rosado, was arrested at the Fernando Luis

Ribas Dominicci Airport in San Juan, P.R. The defendant had arrived from the Dominican

Republic and lied to Customs and Border Protections Officers (CBPO) when he stated that

he was not carrying more than $10,000.00 U.S. or foreign equivalent after a trained dog

alerted to the presence of narcotics on his suitcase and money. Moreover, the defendant

lied when he completed a Customs Declaration Form (CBP Form 6059B) in which he

declared he was not carrying currency or monetary instruments over $10,000.00. Both

statements were lies because the defendant knew that he had concealed $51,802.00 under
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the insoles, inside his shoes, inside his luggage, from the Dominican Republic and into the

United States.

2. Although the defendant now makes excuses for his illegal behavior, in an attempt to move

this Court to impose a sentence below the recommended sentencing guideline range, the

truth is that on April, 2nd, 2018, he committed two felonies and is now facing sentencing

for that reason alone.

3. For the acts described above, a Grand Jury returned a Two Counts Indictment against the

defendant on April 6, 2018: Count One of the Indictment charges the defendant with Bulk

Cash Smuggling Into the United States, in violation of Title 31, United States Code, Section

5332(a) and (b); and Count Two charges the defendant with Making A False Statement to

an Agency of the United States, in violation of Title 18, United States Code, Section

1001(a)(2). See Docket Entry 9.

4. On March 7, 2019, the defendant made a straight plea to both counts in the Indictment. See

Docket Entry 45. For the reasons below, we believe that a sentence of 16 months of

imprisonment is not greater than necessary.

II. Application of the Sentencing Guidelines

5. For the reasons set forth in the PSR, the guideline for a violation of 18 U.S.C. § 5332 is USSG

§2S1.3. The offense level is 6 plus the number of offense levels from the table in §2B1.1 (Theft,

Property Destruction, and Fraud) corresponding to the value of the funds. The offense level for

offenses involving $51,802 is 6, pursuant to USSG §2B1.1(a)(2). Therefore, the total base

offense level is 12, pursuant to U.S.S.G §2S1.3(a)(2). Because the offense involved bulk cash

smuggling, a 2-level increase is applied, pursuant to U.S.S.G. § 2S1.3(b)(1)(B). The offense

level is decreased by two levels since defendant accepted responsibility for the offense. USSG

§3E1.1(a).

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6. Based upon a total offense level of 12 and a criminal history category of I, the guideline

sentencing range is from 10 to 16 months of imprisonment. Since the applicable guideline

range is in Zone C of the Sentencing Table, the guideline provision establishes that the

minimum term may be satisfied by (1) a sentence of imprisonment; or (2) a sentence of

imprisonment that includes a term of supervised release with a condition that substitutes

community confinement or home detention according to the schedule in subsection (e),

provided that at least one-half of the minimum term is satisfied by imprisonment. USSG

§5C1.1(d).

III. Argument

Sentencing Factors

7. The court in determining the particular sentence to be imposed shall consider: the nature

and circumstances of the offense; the history and characteristics of the defendant; the need

that the sentence imposed reflects the seriousness of the offense, promotes respect for the

law, affords deterrence and protects the public from further crimes of the defendant. See

18 U.S.C. §3553(a).

8. The aforementioned statute also moves the court to consider:

a. The kind of sentences available;

b. The kind of sentence and range available for the offense, and

c. The need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct, among other factors.

9. The United States submits that a sentence of imprisonment within the correctly calculated

range described by the United States Sentencing Guidelines shall be imposed since it has

already taken into consideration all the factors recommended by the Sentencing

Commission. Although this Honorable Court has broad discretion in imposing defendant’s

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sentence, the additional factors, the defendant prays for this Court to consider are either

not addressed by the sentencing guidelines, policy statements, or official commentaries of

the Sentencing Commission or not supported by the circumstances of the defendant. Since

none of the additional factors raised by the defendant are mitigating to a degree not

adequately taken into consideration already, the same are of no greater weight than the

3553(a) factors.

10. “[T]he court shall impose a sentence of the kind and within the range, referred to in

subsection (a)(4) unless the court finds that there exists an aggravating or mitigating

circumstance of a kind or to a degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines that should result in a sentence

different from that described. In determining whether a circumstance was adequately taken

into consideration, the court shall consider only the sentencing guidelines, policy

statements and official commentary of the Sentencing Commission.” See 18 U.S.C.

§3553(a).

11. A sentence of imprisonment of 16 months is appropriate not only because it falls within

the applicable guidelines range, but also because that sentence necessarily furthers several

of the goals of sentencing specified in 18 U.S.C. § 3553(a). Because the guidelines reflect

nationwide sentencing practices—including identifying and assigning weights to the

factors, both aggravating and mitigating, that judges traditionally used in determining an

appropriate sentence—a sentence within the guidelines range reflects the federal courts'

collective sentencing expertise accumulated over the past two decades. A properly

calculated guidelines range takes into effect the nature and circumstances of the offense

and the history and characteristics of the offender. See 18 U.S.C. § 3553(a)(1). It gives

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appropriate weight to the need for the sentence imposed to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment. See id.

§ 3553(a)(2)(A). It affords adequate deterrence to criminal conduct and protects the public

from further crimes of the defendant. See id. §§ 3553(a)(2)(B), (C). Moreover, a guidelines

sentence—and only a guidelines sentence—provides a means for the district court to avoid

unwarranted sentencing disparities among defendants with similar records who have been

found guilty of similar conduct. See id. § 3553(a)(6). As the First Circuit concluded, "the

guidelines cannot be called just 'another factor' in the statutory list," because they are

instead "the only integration of the multiple factors." United States v. Jimenez-Beltre, 440

F.3d 514, 518 (1st Cir. 2006).

The Offense

12. Bulk cash smuggling is a serious offense. Following the decision in U.S. v. Bajakajian,

524 U.S. 321 (1998), the United States Department of Justice (Department) submitted a

proposal to Congress, to amend Title 31 of the United States Code. The Department's

proposal suggested that the act of bulk cash smuggling should be made a criminal offense,

and that the United States should be empowered to seize and forfeit smuggled currency in

accordance with the forfeiture provisions of Title 18 of the United States Code. The

Congressional Record clearly states the legislative intent behind what would eventually

become the Bulk Cash Smuggling Act of 2001, 31 U.S.C. § 5332.

Confiscation of the smuggled currency is, of course, the most effective weapon
that can be employed against these smugglers. Accordingly, in response to the
Bajakajian decision, the Department of Justice proposed making the act of bulk
cash smuggling itself a criminal offense, and to authorize the imposition of the
full range of civil and criminal sanctions when the offense is discovered.
Because the act of concealing currency for the purpose of smuggling it out
of the United States is inherently more serious than simply failing to file a
Customs report, strong and meaningful sanctions, such as confiscation of the

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smuggled currency, are likely to withstand Eighth Amendment challenges to the

new statute.

144 Cong. Reg. H9478 (1998).

13. Defendant has devoted a lot of energy into convincing this Honorable Court that: “he is not

the person that usually fills the customs declaration forms” (see, Docket Entry 87, p. 6,

¶15); “he filled out the form without paying too much attention because of the lack of sleep

he had while preparing for the presentations in the Dominican Republic, also because he

attended a few parties where he drank alcohol and exhausted himself” (see, id); “concealed

the money under the insoles of the shoes because he did not trust anyone” (see, id, ¶16);

and “left his hotel in a hurry” (see, Docket Entry 69, p. 5, ¶13). The aforementioned are

mere excuses in an attempt to hide the uncontested fact that by pleading guilty the

defendant accepted that he intended to violate federal law: he intended to evade the

currency reporting requirement; he knowingly concealed the $51,802.00 under the insoles,

inside his shoes, inside his luggage; from Dominican Republic to Puerto Rico; and he

willfully and knowingly lied when he filled the declaration form.

14. It is precisely the vast experience and fame described by the defendant on his Sentencing

Memorandum what establishes his intent to violate the law more palpable. Precisely

because of his fame, his businesses and his continuous international travels, this defendant

is more aware of the reporting requirements than the regular civilian that once every few

years embarks on an international travel. Defendant experience as a famous singer,

songwriter and businessperson (as described in his sentencing memorandum) made him

aware of the type, extent and nature of his contact with CBPOs and of the reporting

requirements. Not only did the defendant knew about the requirements of the law due to

his extensive travel history, but the airport has signs that explain the requirements in both

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Spanish and English language. Finally, it was the defendant who signed the declaration

form and answer to the questions of the officers. It was the defendant the one that marked

“No” when asked if he was carrying currency or monetary instruments over $10,000.00. It

was the defendant the one that stated that he was carrying “about $7,000.00”, when he

knew he was carrying eight times that quantity.

Deterrence

15. General deterrence as a sentencing factor is about preventing criminal behavior by the

population at large and, therefore, incorporates some consideration of persons beyond the

defendant. See U.S.S.G. ch.4 pt. A, introductory cmt. See United States v. Politano, 522

F.3d 69, 74 (1st Cir. 2008) which allows a sentencing court “to take into account all of the

circumstances under which [the defendant] committed the offense, including the particular

community in which the offense arose”. Put another way, the incidence of particular

crimes in the relevant community appropriately informs and contextualizes the relevant

need for deterrence. Unfortunately in this jurisdiction, it is not uncommon to identify and

prosecute persons conducting the same crimes the defendant committed.

16. Although the defendant claimed that he “has already suffered enough”, could “lose

everything”; and that he dealt with the “permission for travels and the conditions imposed”,

(see, Docket Entry 87, p. 7, ¶19) those explanation does not place him in a different position

when compared to other defendants in his same situation. Defendants concerns and

inconveniences are a consequence of his actions and the same similarly situated defendants

faced while pending sentencing in this Honorable Court.

17. On the other hand, the defendant claims that “the publicity of the case has more than

adequately promoted the deterrence of criminal conduct by signaling that the commission

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of this crime, even when committed out of carelessness, will be strongly prosecuted by the

authorities.” (See, Docket Entry 87, p. 7, ¶20). We disagree with his interpretation. First,

during his change of plea colloquy, the defendant admitted under oath to this Court that he

committed the crimes knowingly and willingly and not carelessly or by mistake. An attempt

now to mischaracterize his acts reflects poorly on his respect for the law. Second, the

United States is not “gaining” by the alleged publicity the case has received. To the

contrary, it has been the defendant the one that has gain from that publicity, since he is now

advertising his version of the events on his most recent musical production. An assertion

that deterrence has been achieved through publicity while at the same time claiming

carelessness instead of intent and willfulness reflects poorly on his acceptance of

responsibility and the real deterrence effect this case has had in defendant’s life.

Departure is Not Warranted

18. Defendant contends that a downward departure on the basis of aberrant behavior (U.S.S.G.

§ 5K2.20) physical condition (U.S.S.G § 5H1.4) or family ties (U.S.S.G. 6) is warranted

in this case. We disagree. A departure on the basis mentioned by the defendant is not

warranted in this case. The United States Probation Office reached that same conclusion

after evaluating the case under the applicable United States Sentencing Guidelines and they

so stated it in the Pre-Sentence Report when it states: the officer has not identified any

factors that may warrant a departure in this case. See Docket Entry 91, page 15, part F.

19. As the First Circuit has noted, in United States v. Rivera–Rodriguez, 318 F.3d 268, 275

(1st Cir.2003), the Guidelines restrict downward departures for aberrant behavior to

“extraordinary” cases. Defendant’s is not such a case. First time offender status is not by

itself sufficient because placement in a criminal history category I already reflects that. See

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U.S. v. Benally, 215 F.3d 1068, 1074 (10th Cir. 2000). Defendant, who claimed entitlement

to departure because she is a law-abiding and God-fearing citizen, not entitled to departure

because these are characteristics guidelines already take into account (lack of criminal

history) or cannot take into account (religion). United States v. Floyd, 458 F.3d 844 (8th

Cir. 2006).

20. In the instant case, defendant’s history of controlled substance marks a deviation from a

law-abiding life; the concealment of the currency inside his insole shoes and the denial of

carrying more than $10,000.00 when he was detained, reveals significant planning and

does not evidence limited duration. As such, defendant does not meet the criterion for the

aforementioned departure and the conclusion of the USPO should not be altered.

21. The United States strongly rejects defendant’s characterization of the instant conduct as

aberrant “because defendant does not have any need to commit such a simple crime.” See

Docket Entry 87, page 11, ¶ 32. Both crimes for which the defendant is now facing

sentencing are serious felony offenses that involve a guideline sentencing recommendation

of 10 to 16 months of imprisonment. Moreover, since the applicable guideline range is in

Zone C of the Sentencing Table, a sentence of imprisonment is recommended in this case, since

the minimum term may be satisfied by (1) a sentence of imprisonment; or (2) a sentence of

imprisonment that includes a term of supervised release with a condition that substitutes

community confinement or home detention … provided that at least one-half of the minimum

term is satisfied by imprisonment. See USSG §5C1.1(d). Under those considerations, there is

nothing simple about the crimes committed by the defendant.

22. A departure on the basis of physical condition is not warranted in the instant case either.

“Physical condition ... is not ordinarily relevant in determining whether a sentence should

be outside the applicable guideline range.” U.S.S.G. § 5H1.4. Thus, departures based on

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physical condition are discouraged. See United States v. Rivera, 994 F.2d 942, 948 (1st

Cir.1993). Nevertheless, “an extraordinary physical impairment may be a reason to impose

a sentence below the applicable guideline range.” U.S.S.G. § 5H1.4; see also United States

v. Woodward, 277 F.3d 87, 92–93 (1st Cir.2002) (recognizing the authority of the district

court to depart in the case of an extraordinary physical impairment). A court may find such

an extraordinary impairment when imprisonment would threaten or shorten a defendant's

life or when the Bureau of Prisons would be unable to adequately meet the defendant's

medical needs. See United States v. LeBlanc, 24 F.3d 340, 348–49 (1st Cir.1994)

(upholding the district court's refusal to depart because “[t]here was no indication ... that

[defendants's] life would be threatened or shortened by virtue of being incarcerated ... [or]

that the Bureau of Prisons would be unable to adequately accommodate [defendant's]

medical needs.”).

23. Section 5H1.4 of the U.S.S.G. clearly states that “physical condition or appearance,

including physique, may be relevant in determining whether a departure is warranted, if

the condition or appearance, individually or in combination with other offender

characteristics, is present to an unusual degree and distinguishes the case from the typical

cases covered by the guidelines.” It also states that “drug or alcohol dependence or abuse

ordinarily is not a reason for a downward departure. Substance abuse is highly correlated

to an increased propensity to commit crime.” Due to the aforementioned, defendant’s

alleged exhaustion, depression and physical health are not of the unusual degree that would

warrant the departure. To exemplify, courts of the First Circuit have applied this departure

in cases of diminish capacity, heterotopic ossification, and other serial medical conditions

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that would shortened defendant’s life by being incarcerated. None of which compare with

those identified by the defendant.

24. Defendant also argued that a lower sentence based on extraordinary family circumstances

applies in this case. Again, we disagree. Nothing in the record warrants the departure.

The United States Sentencing Guideline §5H1.6, provides that family ties, responsibilities

and community ties are not ordinarily relevant in determining whether a departure should

be warranted. Thus, family responsibilities are in general a disfavored ground for a

downward departure under the United States Sentence Guidelines. As such, any family

circumstances must be extraordinary before a departure can be justified.

25. Existing caselaw is clear that time-consuming family responsibilities, by themselves, are

not sufficient to take a case out of the “heartland.” In United States v. Carr, 932 F.2d 67

(1st Cir.1991). Moreover, it is the unfortunate norm that innocent family members suffer

considerable hardship when a relative is incarcerated. As this First Circuit has noted,

“[d]isruption of the defendant's life, and the concomitant difficulties for those who depend

on the defendant, are inherent in the punishment of incarceration.” United States v. Rivera-

Maldonado, 194 F.3d 224, 236 (1st Cir.1999). This being so, something more is necessary

to elevate defendant’s case-and those of others similarly situated-out of the “heartland.”

IV. Conclusion

26. It is uncontested that a properly trained dog alerted to the presence of narcotics on

defendant’s bags and currency, which is probative and relevant in determining that the

currency had been in contact or proximity to illegal drugs and that it was not innocently

contaminated with it. It is not reasonable to believe that a law and abiding business man

would (in addition to the dog alert) possess large amounts of cash while returning from the

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Dominican Republic, that he would travel with $51,802.00 in cash, concealed inside their

shoes and that he would then lie to federal agents when inquired about it. For all of the

above, the United States submits that a sentence of probation is not appropriate in this case.

A defendant should not be able to buy his way out of jail with fame, lies, and excuses for

his intentional behavior. In order to avoid disparity in the sentencing of similarly situated

defendants and for the reasons previously stated, the United States submits that a term of

imprisonment of 16 months is not greater than necessary. Its imposition will comply with

the purposes and goals of §3553(a) factors. In accordance with the statute, the United

States submits that the $51,802.00 involved in the offense shall be forfeited.

WHEREFORE, in view of the foregoing, the United States respectfully requests that this

Honorable Court take notice of the aforementioned and impose a sentence of 16 months of

imprisonment.

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, this 11th day of June, 2019.

ROSA EMILIA RODRIGUEZ-VELEZ

UNITED STATES ATTORNEY

s/ María L. Montañez-Concepción
María L. Montañez-Concepción
Assistant United States Attorney
U.S.D.C. No. 228301
350 Chardon Avenue
Torre Chardon, Suite 1201
Hato Rey, Puerto Rico, 00918
Tel: 787-766-5656
Fax: 787-771-4050
Email: Maria.L.Montanez@usdoj.gov

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to all attorneys

of record.

s/ María L. Montañez-Concepción
María L. Montañez-Concepción
Assistant United States Attorney

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