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Above-Guidelines Sentences for Prostitution Ring Upheld, Including Where Portions of Rule 11 Transcript Missing

In United States v. Jiamez-Dolores, et al., 14-1840(L) (August 3, 2016) (Hall, Lynch, Chin), the Court in a per curiam order affirmed above-guidelines sentences given to two defendants who each pleaded guilty to one count of conspiracy for their participation in a sex-trafficking enterprise.  Both defendants appealed the reasonableness of their sentences.  One defendant also challenged his sentence based on an incomplete transcript from his plea and sentencing hearing.

The District Court (Judge Forrest, SDNY) sentenced both defendants to the statutory maximum 60 months’ imprisonment—above their Guidelines ranges of 33 to 41 months, and 41 to 51 months.

With respect to reasonableness, the Court found that the District Court gave due consideration to the § 3553(a) sentencing factors, made appropriate factual findings, and properly considered the individual roles and circumstances of each defendant.  The above-Guidelines sentences were warranted here given defendants’ individual roles in a “large-scale sex-trafficking enterprise” that included four brothels, as well as a “delivery service” in which women “working or being forced to work” as prostitutes were delivered to customers’ residences to have sex—sometimes with up to 20 to 30 customers a day.  The Court was not troubled by the government’s decision to seek an upward variance from the Guidelines range at sentencing, after requesting only a within-the-range sentence in its sentencing memorandum.  Although upward variances are not common in the Southern District, they are reviewed (like downward variances) under the deferential standard set forth in Gall v. United States, 552 U.S. 38 (2007).[1]

The Court also rejected defendant Degante-Galeno’s challenge to his sentence on the basis that a portion of the transcript from his Rule 11 plea and sentencing hearing was unavailable.  The Court observed that Degante-Galeno did not cite any particular defect in the District Court’s findings or its conduct of the plea hearing, and did not avail himself of the mechanism available under Rule 10(c) of the Federal Rules of Appellate Procedure for when a complete transcript is unavailable.  Moreover, the Court found that the available portion of Degante-Galeno’s Rule 11 transcript (which included the portion of the plea in which the district court made its findings and accepted the plea) was sufficient to support Degante-Galeno’s plea.  The fact that the transcript was incomplete, in and of itself, did not justify relief.  The tenor of the Court’s decision suggests that it did not believe that Degante-Galeno was genuinely interested in the absence of the transcript and eager to recreate it to identify a possible defect in the plea.  Rather, Degante-Galeno seemed to proceed on the mistaken belief that the fortuitous absence of a complete transcript would enable him to void his conviction and sentence.


[1] Only 25 of the 1689 defendants sentenced in 2014 in the Southern District received an upward variance.  See U. S. Sentencing Commission, 2014 Sourcebook of Federal Sentencing Statistics, Fiscal Year 2014 Guidelines Sentences, Southern District of New York (available at

-By Jason Vitullo and Harry Sandick