Nearly every day in the downtown San Diego federal courthouse, drug couriers are charged, convicted or sentenced for trying to smuggle narcotics across the international border with Mexico just over a dozen miles to the south.
So when Sandra Rodriguez was sentenced to 6½ years in prison the first week of January 2020 by U.S. District Judge Larry Burns, it went largely unnoticed. She had pleaded guilty after getting caught trying to smuggle into the U.S. 47 pounds of methamphetamine and 5 pounds of heroin in what was another skirmish in the ceaseless struggle over border drug busts in San Diego.
But her case took on a whole other dimension in November, nearly two years later, when Burns wrote a 24-page order sharply criticizing 9th U.S. Circuit Court of Appeals rulings in both the case of Rodriguez and a second smuggler in a separate case — and stepping down from both cases. The appeals court said he incorrectly interpreted federal sentencing guidelines that would have resulted in a shorter sentence for each defendant.
Burns, a former federal prosecutor in San Diego who has been a judge for 25 years, wrote in a Nov. 15 order that the appeals court had “usurped” his role as a sentencing judge and discounted his experience of presiding over thousands of border drug-smuggling cases in San Diego when it concluded he had made a mistake.
“My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion,” he wrote in the order.
The public spat between a district court judge and the higher appeals court is uncommon. Burns, a former chief judge of the district, declined to comment beyond his order when contacted last week.
It is highly unusual, if not unprecedented, for a judge to write a detailed response to a ruling from an appeals court.
“In my experience in well over 100 appeals I’ve done, and all the appeals I’ve seen, I’ve never seen anything like it,” said Devin Burstein, Rodriguez’s appellate lawyer. “It is totally unique.”
The dispute centers on a particular element of sentencing rules in federal court. In general, one of the factors influencing the sentence someone receives is their level of involvement in the crime — if they were leaders, organizers, played a major role or were a minor participant.
The appeals court said Burns had incorrectly interpreted some sentencing guidelines that would have deemed both defendants a minor participant in their crimes, thus lowering their potential sentences.
In the case of Rodriguez she would have been sentenced in the range of 46 months to 57 months in prison. She ended up with 78 months. The second defendant, coincidentally named Jesus Rodriguez but no relation to Sandra, could have received a sentence in the range of 70 months to 87 months in prison, and ended up with a 90-month sentence from Burns.
The cases were was sent back down to Burns by the appeals court with instructions to re-sentence both as minor participants.
But Burns responded in his own order, saying he could not do that. After he made a detailed review of each case and defended his reasons why neither Rodriguez could be considered a minor participant, the judge said he could not “brush aside my insights, experience and long-held conclusions” about border-smuggling cases and had to step down.
He took issue with the appeals court concluding that he made a mistake in determining how much Sandra Rodriguez knew of the “scope and structure” of the smuggling operation, how much she was involved in the planning of the crime, and how much she stood to benefit.
Among other things he noted was that she had admitted smuggling a batch of drugs weeks before she was caught and was paid $4,000. Jesus Rodriguez had been arrested for smuggling before and served three years of a seven-year sentence before being released, he wrote. Those and other factors, Burns said, disqualified each from being considered a minor participant in the crime.
In his order, Burns pointed to his experience as the judge presiding over numerous prosecutions of the Arellano Félix Organization, once the most dominant drug cartel that controlled the Tijuana smuggling corridor before it was systematically dismantled in a years-long campaign by U.S. authorities.
Burns sentenced many of the cartel members, including the two brothers who led the enterprise, Benjamin Arellano Félix and Javier Arellano Félix.
He pointed to previous rulings that empower trial court judges in sentencing. “These precedents encourage and direct me as a sentencing judge to draw on my knowledge of underlying facts, to apply my comprehensive experience with border importation offenses, and to rely on my familiarity with the characteristic ways in which this offense is committed,” he wrote.
In his appeal, Burstein wrote that Burns “does not like the minor-role reduction. And everyone knows it.” He wrote that there have been more than 100 appeals since 2006 on Burns not crediting defendants with the minor role reduction, though he acknowledged at the oral arguments in the case in response to a question from a judge that Burns did not have a blanket policy of always denying it in drug-smuggling cases.
After Burns recused himself, the Sandra Rodriguez case was reassigned to U.S. District Court Judge Gonzalo Curiel. On Dec. 15, Curiel determined Rodriguez did, indeed, play a minor role and should be given that consideration. Like Burns, Curiel is a former federal prosecutor in San Diego — experience he also drew on in the hearing.
“Like Judge Burns, I, too, have experience in these matters,” he said, according to a transcript of the hearing. “I spent 17 years handling drug cases. I ultimately became chief of the Narcotics Enforcement Section. I, too, know a little bit about the Arellano Félix organization, having led the investigation of Benjamin Arellano Félix.
“And it is clear, in my view, that these individuals, who are recruited by the drug cartels to provide this simpleton service of driving a car from Tijuana to San Diego — sometimes Los Angeles — are, generally speaking, minor role players,” he said. “They are.”
With that, he sentenced her to 36 months, time she had already served in prison. That was the same sentence that both the Probation Department and her lawyers had initially sought in 2020.
Jesus Rodriguez also had his case reassigned, to another judge, and is scheduled to be sentenced in January.