Fernando J. Gaitan, Jr.
Western District of Missouri
Let me say this, Mr. Alejandro Alaniz, your sentence was
a very severe sentence and I recognize that, and quite frankly, it was more
severe than I would have expected.
But . . . there was no basis that I could see to reduce the offense
level so that I could get you under the life sentence. I'm sure this matter will be appealed
to a higher court and perhaps they can find a way to do it, but under
legitimate considerations that I was required to consider . . . I had no option
here.[1]
Appointed by: President George H.W. Bush, 1991.
Law School:
UMKC School of Law, J.D.
1974.
Prior Legal Experience:
Southwestern Bell Telephone, 1974-80.
Prior Judicial Experience: Circuit Court of Missouri, 1980-86; Western District
Missouri Court of Appeals, 1986-91.
Background and Reputation in the Legal Community
Judge Gaitan was an attorney for Southwestern Bell
Telephone Company before becoming a state trial and appellate judge. He was elevated to the federal bench in
1991. He has been active in the
ABA and local bar associations as well as serving on boards of various
organizations such as the Kansas City Museum, St. Luke Hospital of Kansas City,
and the De La Salle Education Center.
He is also a member of the Hillcrest Country Club, the National Conference
of Christians and Jews, and a life member of the N.A.A.C.P.
Most lawyers say that Judge Gaitan's courtroom is well run
and that his abilities are good.
Comments included, "He really keeps things moving and doesn't put up
with any nonsense, but if you are doing your job, he'll give you some
room." He does expect lawyers to
follow the local rules and page limitations he imposes, and one lawyer noted
that you "have to adhere to his rules carefully."
Civil lawyers consider Judge Gaitan to be fair though some
noted that "his instincts are conservative." Criminal lawyers also say that he gives defendants a fair
trial. "He is tough on criminal
defendants, but he is equally tough on the prosecution on things like offers of
proof, and the admission of evidence."
A few say that he is more inclined to listen to the government, but add
that they don't think that he is unfair.
In sentencing, lawyers say that Judge Gaitan is unlikely to disturb a
plea agreement, because "he fells that the parties know the case best." Most believe that he is willing to
listen to arguments for departure and won't "just rubber-stamp the government's
arguments," although some say that he generally is "willing to follow the
prosecutor recommendation at sentencing."
Alejandro Alaniz
Charge:
Conspiracy
to Possession and Distribute Marijuana;
Distribution of Marijuana (two
counts).
Sentence: Life without Parole.
Projected Release Date: None.
Alejandro("Alex") Alaniz is serving a life sentence for his part in a marijuana
conspiracy run by his uncle, Alberto ("Beto") Alaniz. According to the evidence at trial, Alex's uncle came to the
Kansas City area in early 1994 to distribute marijuana he obtained in Mexico
and Texas. He had local helpers in
this enterprise, who acted as retail dealers, but he also involved family
members from back home in wholesale and supervisory roles. In 1995, Beto Alaniz
decided to move back to Mexico to be with his wife and he asked his nephew,
Alex, to move to Kansas City to run the day-to-day operations. Based on confidential informants and
cooperators, as well as recorded conversations and transactions, the police
arrested the participants of the conspiracy in 1995.[2]
The Alaniz defendants went to trial and were
convicted. Numerous underlings
testified against them including Sharon Hughes, the widow of a drug debtor,
William Turner, Roel Canto, busted while serving as a courier, and Alex's
former girlfriend, Michelle Komm.
The government also presented a recording of Alex participating in a
controlled buy for ten pounds of marijuana.[3] The largest
drug quantities attributed to Alex, however, came in only through the
statements of cooperating witnesses and informants. One claimed to have observed fifteen duffle bags, each
containing 100 pounds of marijuana, in the closet of a home controlled by the
Alaniz organization. Alex also was
introduced to a methamphetamine source after his move to Kansas City and he
began to buy and distribute this drug through the same channels. As the conspiracy unraveled, Alex was
also accused of threatening several lower level members who were suspected of
cooperating.[4]
The PSI recommended that Alex be held accountable for 2,335
pounds of marijuana and one kilogram of methamphetamine.[5] With
enhancements for possession of a gun, obstruction of justice and his leadership
role, Alex ended up with an Offense Level of 43. He also had prior drug convictions, including a prior
federal cocaine conspiracy charge in Texas for which he served over four years.[6] Based on
these convictions and the fact that he was on supervised release in the earlier
case, his Criminal History Category was IV. Consequently the Sentencing Guideline grid required nothing
less than a life sentence without parole.
At sentencing, Alex's attorney first argued that in all the
hundreds of hours of phone conversations, Alex was never heard threatening
anyone. He also pointed out
that while there may have been a gun in Alex's house, no weapons were ever
brandished or fired during the course of the conspiracy. The court rejected these objections and
included the enhancements. When
asked to allocate, Alex briefly apologized to the court and to the case agents
for all the time the case had taken and he asked for mercy.
Alex was sentenced along with his uncle and cousin. Before announcing all three sentences,
Judge Gaitan talked to all three about the negative impact of drugs on society
and how it robs "our most resource, which is our people. . . . It creates all kinds of problems; not
just a statutory requirement that people be punished for selling or conspiring
to sell drugs, but all the rippling effect of drugs, the crack-addicted mom,
the crack addicted baby. Marijuana
may be less lethal than crack or heroin or methamphetamine, but they all play a
major role in this cycle. So
while some find it acceptable to use marijuana, certainly I don't think anybody
finds it acceptable to sell it, particularly in the manner it was sold in this
particular conspiracy."[7]
Judge Gaitan then imposed a 250 months sentence on Beto, while Beto's son, Alberto, got
240 months.[8] Alex received a mandatory life sentence required by the
Guidelines. At that point, Judge
Gaitan addressed Alex, telling him
Let me say this, Mr. Alejandro Alaniz,
your sentence was a very severe sentence and I recognize that, and quite
frankly, it was more severe than I would have expected. But . . . there was no basis that I could see to
reduce the offense level so that I could get you under the life sentence. I'm sure this matter will be appealed
to a higher court and perhaps they can find a way to do it, but under
legitimate considerations that I was required to consider . . . I had no option
here.[9]
Alex grew up in Edinburg, Texas with a large and close
family with many members who were not involved in drug smuggling. He had a promising start, playing
football in high school, before graduating in 1986. For a few years, he worked as a driver for a family wrecking
and towing service before his involvement with the less savory side of his
relations. When he first moved to Kansas City, he also held regular employment
for as a door man at a strip club, the same place he met his girlfriend who
later testified against him.
Before the sentencing, he told the probation officer that
he would like to study taxidermy when released. After receiving his life sentence and losing his appeals, he
no longer harbored such mundane hopes.
In December 2003, Alex wrote from prison that "it has been an up hill
battle with the courts that has gotten the best of me."[10] Initially he
said he was confident of his abilities and aptitude and thought learning the law
"would be a new challenge," but he wrote, "I must admit, I have failed. The federal judicial system is
structured to prevail. Defeated in
every battle has left a bitter taste in my mouth."[11]
In light of the Booker decision, there may now be some thin reed of hope for Alex, but only if
the Supreme Court decides that the decision should be applied retroactively.
Compiled from PSI, Sentencing Transcript, inmate
letters, appellate opinions, PACER docket sheet.
Sentencing Transcript at 46, United States v. Alejandro Alaniz, Cr. 95-00170-02 (W.D. Mo. July 29, 1997). The Eight Circuit denied Alejandro's appeal, See United States v. Alaniz, 148 F.3d 929 (8th Cir. 1998). His post-conviction efforts have also been unsuccessful.
The "take-down" operation by the police included searches of Alex's home which revealed a gun and drug paraphernalia. Alex was in Texas at the time and disputed that the gun was connected to the drug activity but the judge overruled this objection. A search of his cousin Alberto's house revealed more firearms and drug related items.
Alex was also a passenger in car stopped by the police on July 11, 1995, which was carrying just over $30,000 in cash. This money was confiscated by the police and forfeited in the trial.
Two witnesses, Roel Cantu and Michelle Komm, testified at the sentencing hearing and Alex's offense level was enhanced by two points for this conduct.
Under the Guidelines, the methamphetamine could be included as relevant conduct even though Alex was only charged only with marijuana offenses. The probation officer argued that, in her opinion, these drug quantities were a very conservative estimates.
His supervised release was revoked as a result of an unrelated arrest and he served an additional 18 months on that charge.
Sent. Tr. at 39-40.
Alberto filed a successful post-conviction motion, alleging his attorney was ineffective for failing to challenge the aggregation of an uncharged drug under the conspiracy count. His case was remanded but he received the same sentence after the rehearing. See United States v. Alberto Alaniz, Jr., 351 F.3d 365 (8th Cir. 2003).
Sent. Tr. at 46.
December 27, 2003 letter to author at 1 (on file with author).
Id.