Tampa Federal Criminal Defense Lawyer

Counsel’s Failure to Object Cost Client Jail Time

Jan 24, 2014 | Sentencing

Edwin Aguilar-Ibarra pleaded guilty to conspiracy to commit a Hobbs Act robbery and the commission of a Hobbs Act robbery and was sentenced to 87-months. Prior to his sentencing, his defense counsel failed to make timely objections to the presentence investigation report. As a result, Aguilar-Ibarra was given a two-level bodily injury enhancement. Aguilar-Ibarra appealed the sentence and challenged the district court’s decision to apply the enhancement. The 11th Circuit Court of Appeals affirmed his sentence.

Back in January of 2012, four men wearing masks entered a Florida warehouse brandishing replica semi-automatic pistols. One of these men was Edwin Aguilar-Ibarra. The four intruders bound, gagged, and forced a warehouse employee into a back office where they assaulted him and secured him to a chair with duct tape. The men then loaded over half a million dollars’ worth of cell phones into a stolen truck. They were thereafter charged with conspiracy to commit a Hobbs Act robbery and the commission of a Hobbs Act robbery. Aguilar-Ibarra pleaded guilty and received an 87-month sentence.

The reason he was given an 87-month sentence was because his presentence investigation report (PSR) calculated a total offense level of 27, which included a two-level increase under U.S.S.G. §2B3.1(b)(3)(A) because a victim of the robbery had sustained bodily injury. No written objections were made to the PSR, but defense counsel did object at the sentencing hearing. Defense counsel objected to the bodily injury enhancement, asserting that she and the government had agreed that the enhancement should not apply because there was no evidence that the warehouse employee had sustained any bodily injuries.

The district court considered a spectrum of things before making a decision on the objection. The district court asked both defense counsel and the government’s attorney whether they objected to the facts of the PSR, which both attorney admitted they did not object to. Both attorneys also agreed that the victim had not sustained a serious bodily injury. Additionally, the district court questioned the probation officer about the source of information in the PSR. The probation officer had created the PSR on the information given by the government. The probation officer was very familiar with the case because he had covered Aguilar-Ibarr’s co-conspirators’ sentencing hearings; each co-conspirator was given the bodily injury enhancement at sentencing. The district court overruled the objection as untimely and without merit.

Aguilar-Ibarra filed an appeal to challenge the district court’s ruling on the bodily injury enhancement. He argued that the time limit for filing objections to the PSR was inapplicable in his case because he and the government had agreed that the enhancement should not apply. The 11th Circuit Court of Appeals affirmed Aguilar-Ibarra’s sentence. In it’s decision it discussed the purpose and application of Rule 32 of the Federal Rules of Criminal Procedure. The purpose of Rule 32 is to ensure that the district court can meaningfully exercise its sentencing authority based on a complete and accurate account of all relevant information, not only to resolve the disputes between parties. Furthermore, the reason why parties are required to submit their objections in writing prior to the sentencing hearing is to fulfill that purpose. Therefore, when defense counsel failed to make any objections to the PSR prior to trial, any objections thereafter were seen as untimely under the rule.

The 11th Circuit Court of Appeals did discuss the district court’s ability to waive the timeliness requirement for good cause, but found that Aguilar-Ibarra did not show cause for failing to timely raise his objection. The 11th Circuit Court of Appeals affirmed Aguilar-Ibarra’s sentence.

Source: United States of America v. Edwin Aguilar-Ibarra


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