March 18, 2004 - The Sacramento Bee (CA)

'AG' Job Brings 10-Year Sentence

Mexican Man Was on Pot Patch's Low Rung; He Alone Was Caught

By Denny Walsh, Bee Staff Writer

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Miguel Mendoza Palominos grew up in extreme poverty. He was shoeless throughout his childhood and often without a roof over this head. He did not go to school and has never been able to read or write. At times, his mother sent him to beg for food. His alcoholic father played little or no role in the family's day-to-day struggle for existence.

At age 21, Palominos came to California from his village deep in Mexico on the promise of "agriculture" work that would enable him to better support his mother and sisters.

Only after being delivered to a remote area of Tehama County and tasked with watering marijuana plants was he aware of the job's precise nature. He was never paid, and when the camp was raided two months after his arrival by sheriff's deputies, he was the only one of five "irrigators" caught.

A jury found him guilty in November of manufacturing 1,000 or more plants and Palominos, now 23, was sentenced Wednesday in Sacramento federal court to 10 years behind bars.

"I will take the time. I just want to pay for what's my fault," the diminutive, wide-eyed Palominos told U.S. District Judge William B. Shubb through an interpreter.

"When Mr. Palominos is done swabbing prison floors, somewhere between 2010 and 2014, he will be given a one-way ticket back to poverty," defense attorney Timothy Zindel noted in a court document. "The ones who exploited him are out there somewhere today carrying on business as usual."

The comment is illustrative of the emotion both sides brought to the case.

Lead prosecutor Samuel Wong has carved out a niche in marijuana cases generated by local law enforcement and U.S. Forest Service officers. He is sincere in his belief that going after illegal Mexican immigrants who do the grunt work in the growing operations acts as a deterrent.

On the other side were Zindel and Daniel Broderick, assistant federal defenders known for their passion.

"This is the most hotly disputed case that we've had in this court in a long time," Shubb remarked during Wednesday's wrangling.

Wong was busy Wednesday trying another marijuana case, and the sentencing chores fell to his co-counsel, Philip Ferrari.

Zindel and Ferrari dueled for two hours before Shubb over how much more time Palominos should spend in a U.S. prison.

While the government sought 15 years and eight months, the defense was fighting for 10 years.

"The government is out for injustice in this case and its effort should not be sanctioned," Zindel wrote in his memorandum to the judge.

Despite that, Zindel conceded early on in Wednesday's argument that, while 10 years is "a gross injustice," it is the lowest he could ask for under federal sentencing guidelines because a semiautomatic handgun was found in Palominos' backpack.

Shubb cut through the rhetoric and summed it up this way: "The fact is, no matter what I do, there's going to be a 10-year sentence at least. And that's for conduct the majority of the people in California believe should be legalized."

But first, he had to follow procedure and decide the various points of contention. The defense won two of those, the prosecution two.

Wong wrote in a court document filed Monday, and Ferrari argued to the judge Wednesday that Palominos should be held responsible for all 12,997 plants in the garden, and be sentenced accordingly.

Zindel argued that Palominos split the watering duties with four others, that he watered only a certain section of the garden, and shouldn't be held accountable "for every leaf."

The judge sided with Zindel, assigning a quarter of the plants to Palominos for purposes of calculating the sentence.

Next, the prosecutors wanted to up the punishment for what they claimed was Palominos' attempt to obstruct justice by misleading the judge into believing he was a juvenile at the time of arrest.

The issue springs from a tangled factual scenario involving two birth certificates with different dates of birth, and is also a function of Palominos' youthful appearance and ignorance as to when he was born.

Shubb was critical of Zindel's aggressive pursuit of the matter, and Ferrari warned the judge, "It would be a dangerous precedent to immunize (Palominos) from his counsel's actions."

But Shubb again sided with the defense, finding no evidence that Palominos deliberately caused any of the confusion.

Next up was Zindel's contention that his client played a minor role in the overall operation.

"In the scheme of this offense, he was barely more important than a trowel," he wrote.

Under the guidelines, however, he had to show Palominos to be "substantially less culpable than the average participant," and Shubb found Palominos no less culpable than the four field hands who got away.

Finally, Zindel insisted that Palominos had accepted responsibility for his crime by confessing on the day he was arrested - Aug. 5, 2002.

But Ferrari was equally insistent that Palominos has "been running from that statement ever since," and credit for acceptance of responsibility under the guidelines is "not intended to apply to people who go to trial."

The judge rejected that argument, finding Palominos' statements to a Tehama County probation officer less than "an unqualified confession." Rather, he described them as "a few grains of admission in a big barrel of exculpability."

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