Man Wins Resentencing Based on Cuba Remarks

CHICAGO (CN) - A Cuban immigrant is entitled to resentencing after lawyers and a judge improperly linked his crime to attitudes in his home country, the 7th Circuit ruled.

Federal agents tracking a Miami-based national credit card fraud scheme followed a trail of unauthorized transactions to the Milwaukee area in 2010.

Wisconsin-area agents arrested Giraldo Trujillo-Castillon, Marco Tabares and Lauriano Puerto after video surveillance captured the men using fake credit and gift cards to buy more than $139,000 in merchandise at Kohl's and Cabela's.

Trujillo-Castillon pleaded guilty to one count of using unauthorized accounts and one count of aggravated identity theft. All other charges against him were dismissed under his plea agreement.

U.S. District Judge Rudolph Randa sentenced Trujillo-Castillon to six years in prison, two of which were mandatory under the aggravated identity theft statute.

Trujillo-Castillon appealed, arguing that the court failed to weigh his mitigation evidence and improperly considered his Cuban heritage at sentencing.

Though the 7th Circuit quickly rejected the mitigation argument, several questionable references to Trujillo-Castillon's national origin gave the three-judge panel pause.

At sentencing, the government prosecutor said Trujillo-Castillon viewed fraud differently than violent crimes "because of his Cuban heritage. ... Maybe there is a different attitude toward private property in Cuba."

The prosecution later told Randa, "if [Trujillo-Castillon] came here because he thought it would be easy, then I would simply suggest that he and others like him either wise up, or don't come."

Trujillo-Castillon's lawyer also contributed, explaining that Cubans view theft as "pulling a Robin Hood type of act" and suggesting that Cuban immigrants have a hard time adjusting to "the American way of life."

But most significant, according to the 7th Circuit, were Judge Randa's comments when announcing the verdict.

Randa said that Trujillo-Castillon's lifestyle cannot "be blamed on Cuba," and his record was reminiscent of "when the Mariel people came over here and created crime waves all over the place ... when Castro emptied his prisons, and his psychiatric wards, and Jimmy Carter took them all in."

Addressing Trujillo-Castillon directly, Randa told him that "in America, private property is sacrosanct. It's not the Government's property. ... And that's the way we live in America. And that's why it's a serious offense when you do this."

Presented with this record, the 7th Circuit vacated Trujillo-Castillon's sentence.

"The guidelines make clear that race, sex, national origin, creed, religion, and socio-economic status 'are not relevant in the determination of a sentence,'" Judge Diane Williams wrote, quoting federal law.

Randa exacerbated the problematic statements by failing to distance himself from the remarks, the court ruled.

"By lumping the defendant in with the Mariel people and expressly contrasting the values held by Americans with people, like the defendant, 'who come from Cuba,' the court arguably made Trujillo-Castillon's national origin a factor at sentencing," Wood wrote.

"Clarifying the basis for the defendant's sentence-or correcting the sentencing court's erroneous consideration of his nation origin-requires only a brief resentencing procedure," Wood added. "We think that is a very small price to pay."

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