Monday, November 14, 2011

Kelly Tracy

Attorneys are close to a plea deal with a driver accused of causing a collision that killed a Highland High School teen last fall, according to documents filed Tuesday in Maricopa County Superior Court.

If no agreement is reached, Manuel Contreras-Galdean, 33, will be tried Oct. 26 on charges of aggravated assault and manslaughter in the death of Kelly Tracy, 16, of Mesa, the records show.

Contreas-Galdean has been held without bond in a Maricopa County jail since his arrest Nov. 15. 
He also is under an immigration hold; Mesa police said he has been living in the country illegally.

Attorneys this week updated the status of plea negotiations in the case management plan submitted to the court, writing that both parties "anticipate a non-trial resolution of this case."

Prosecutors want Contreras-Galdean to serve no less than 10-and-a-half years in prison and supervised probation if he pleads guilty, the documents stated.

Police said Kelly and her older brother were driving to meet with their marching band Nov. 15 when Contreras-Galdean turned in front of them near Guadalupe and Sossaman roads. Kelly's brother, Matthew Tracy, sustained minor injuries. Kelly died at the hospital.

Investigators said Contreras-Galdean was drunk during the crash and three hours afterward when they obtained a blood sample, court documents show.

Police alleged his blood-alcohol content was .19 - more than twice the legal limit.

Contreras-Galdean also is accused of falsifying employment documents three times between 2003 and 2007. He has pleaded not guilty to three charges of felony forgery.

A pretrial conference where attorneys prepare for the forgery case will take place July 28 at the Maricopa County Central Court Building, 201 W. Jefferson Street, Phoenix.


Amber Merkle

Police upgraded charges against a Decatur man to manslaughter Monday, following Saturday's alleged alcohol-related wreck that killed 8-year-old Amber Merkle.
A Morgan County grand jury could consider a murder charge.
"We've prosecuted folks for murder and gotten murder convictions," District Attorney Bob Burrell said of DUI deaths. "The grand jury will have the option of indicting on the manslaughter charge, a greater or lesser charge.
"Or they always have the option of not returning one at all."
Ruby Merkle said her daughter was set to enjoy an afternoon of ice cream and fun Saturday with her best friend, 9-year-old Destiny Glenn.
"They were so close," Merkle said Monday, as she wiped tears. "They were on the way to the Hartselle Dairy Queen and then to the park."
Police said 21-year-old Arturo Armando Lupian, a migrant construction worker, had a blood alcohol level of .11 when his car slammed into the rear of the sport utility vehicle carrying the West Morgan Elementary schoolmates.
Alabama's legal limit is .08.
"They were singing and listening to the radio, and then, bam!" said April Nantz, Ruby Merkle's friend. "They didn't know what hit them. Amber was in the back seat, and it hit on her side. She absorbed most of the impact in the collision."
Police said Amber was wearing her seat belt, but Nantz said Sonya Glenn, Destiny's mother, believes Amber may have unbuckled.
"Amber was hyper, wide open and wanted to listen to everything that was said," Nantz said. "I must have told her 150 times, when she rode with me, to sit back and put her seat belt on."
Merkle said she rushed to Decatur General Hospital after hearing of the accident.
"The hospital called me at 3 p.m., and as soon as I made it to Decatur General, they flew her to Huntsville Hospital," Merkle said. "I got to see her for maybe two or three minutes."
Merkle didn't learn of the seriousness of the injuries until she arrived at Huntsville Hospital.
"The doctor ran a scan on her Saturday night, and there was little brain activity," she said. "They told me she wasn't going to make it. I asked them to run a second test, and it came back with no brain activity.
"That's when they declared her. She probably died in the middle of the night between Saturday and Sunday."
Police said Lupian's car struck Sonya Glenn's stationary SUV on Sixth Avenue at East Moulton Street, forcing it into a forward car that then struck a fourth vehicle.
Lt. John Bradford said police may not be able to determine how fast Lupian traveled at the time of the crash.
"Lack of skid marks have seriously hampered attempts to calculate the estimated speed of the vehicle at the point of impact," he said. "There has to be some kind of skid mark where an individual braked. As far as we can determine, there was never any deceleration." 
Police placed Lupian under arrest at the scene for driving under the influence and cited him for having no proof of insurance. Police charged him with first-degree assault about an hour after the wreck, but amended the charge Monday to manslaughter.
"After reviewing the case with the district attorney, it was determined a manslaughter charge was needed at this part of the investigation," Bradford said.
Either charge is a Class B felony. If convicted, Lupian faces from two to 20 years in prison and up to a $10,000 fine.
"Had the child lived, that (first-degree assault) charge would have been about it," Burrell said. "But because this is a homicide case, there are more potential charges available."
Lupian remained at the Morgan County Jail today without bond. The date of his grand jury hearing has not been set.
Police said he moved from South Dakota to Decatur, carries a Tennessee driver license and has few ties to the community.
"His citizenship here is also in question," Bradford said.
"I hope he does more than two years," Merkle said. "I don't want him going to Mexico and getting another name, and doing it again."
Nantz said she and Merkle want to place a memorial wreath at the accident site.
"He took an innocent child's life," Nantz said. "The least they could do is put him behind bars so he doesn't harm anyone else. We want the wreath to let everyone know a drunk driver took that baby's life. No mother should have to go through that."

Bank accepting funds for family
First American Bank opened The Amber Merkle Memorial Fund in the name of J.T. Copeland Jr. to offset Amber's uninsured medical costs after she died during the weekend from injuries suffered in a wreck.
West Morgan Elementary Principal Roger Houston, a pastor who will conduct Merkle's funeral, also will collect funds for the Merkle family at the school.
David Parks, a director at Roselawn Funeral Home, said the business will donate its services to the Merkles. The family will receive friends tonight from 6 to 8 at Roselawn. The funeral is Wednesday at 2 p.m. at Roselawn Cemetery.

Thanks for caring
Mother calls community's help after daughter's death a 'miracle'

Still in shock from her daughter's traffic death, Rubye Bradford met relatives and friends Tuesday at Decatur's Roselawn Cemetery, mourning on what would have been Amber Merkle's ninth birthday.

In an eerie twist of fate, Arturo Armando Lupian, an illegal immigrant indicted for murder in Amber's death, turned 22 the same day while confined to his cell at the Morgan County Jail.
Their paths collided three months ago today when Lupian, police said, slammed into the rear of a sport utility vehicle carrying Amber and her best friend.
The alcohol-related crash, police said, set off a four-car chain reaction that left Amber critically injured, interrupting two schoolmates' jaunt for ice cream and their journey to a park.
Police said Lupian's car left no skid marks on the dry Sixth Avenue Northeast asphalt. Police measured Lupian's blood-alcohol level at .11, above the .08 legal limit, and charged the migrant construction worker with driving under the influence.
Following a short stay at Decatur General and a medical helicopter flight, Amber died at Huntsville Hospital the following day.
Bradford now wants to thank those who helped her through the latest tragedy to envelop her life.
"At the start of 2002, I lost my dad," Bradford said. "The following December I got a divorce and lost everything. Then in November of 2003, I lost my mom, and in May, Amber died."

Bradford said she didn't have the money to pay for her daughter's funeral, burial or medical bills.
"I filed for bankruptcy after the divorce, and I didn't know what I was going to do," she said. "It's just a miracle, those who helped me. Roselawn (Funeral Home) paid for everything, visitation and funeral services."
She said Roger Houston, the principal at West Morgan, took up donations to help pay for Amber's medical bills.
"I used the extra money to buy the plot beside her," Bradford said.
Although Bradford hasn't attended meetings, she joined Mothers Against Drunk Driving. She said she still suffers from emotional distress, and is living day to day with the help of her friend and co-worker April Nantz.
"Amber's three older sisters are handling it well, but children deal with it in different ways," said Bradford as she sat on a shaded bench outside her employer, Culver Cleaners, wiping tears. "I'm working a lot and trying to keep busy. My job has treated me extremely well."
Nantz said she met Bradford at work and the two became friends. When Amber died, Nantz was laid off, she said, for six weeks and able to comfort Bradford by having the time to make arrangements for Amber's funeral.
"Some days she does pretty good," Nantz said. "The little things remind her of her."
Nantz said the birthday at the grave site helped Amber's sister, Parris, deal with the death.
"On the Fourth of July she was so upset she didn't want to go out of the house," Nantz said. "She's got a long road ahead. Every time she goes to the closet she sees Amber's clothes and little shoes lying around, and jeans put away. Parris doesn't want to get rid of anything."
Nantz said she plans to make a scrapbook with memorabilia from when Amber was 2 weeks old until the newspaper clippings of the accident.
"I can't imagine losing a child," Nantz said. "I haven't been able to give her the package from the hospital that has a lock of Amber's hair, her foot and hand prints before they took her off life support. I don't know when will be the right time. I guess when she asks for it."
Bradford said she was on the Internet one day and found a picture of an angel that resembles Amber. She printed the image and placed it in a frame with her daughter's picture.
"I just wanted to say thank you to my friends, Decatur police, city and county officials who've come by here and been so good to me. I don't know if I'm still angry at (Lupian). I don't want to hate him. I'm still in shock about all of it."  

Callum Oakford

A failed asylum seeker and illegal driver was jailed for eight months yesterday for a New Year's Day hit-and-run accident in which he knocked down and killed a nine-year-old boy.
Kamel Kadri, 38, an Algerian, received a second jail term of twice that length for possessing the false French passport which enabled him to enter Britain and work illegally.

The difference in the sentences enraged relatives of Callum Oakford, his victim, who attended Chichester Crown Court to see Kadri sentenced.
Judge Anthony Thorpe jailed Kadri for four months for failing to stop after an accident and four months for failing to report an accident. The maximum sentence for each offence is six months.

He admitted driving without insurance, a licence or an MoT certificate and was barred from driving from two years.

The judge imposed a consecutive 16-month sentence for the passport offence and said Kadri should be deported from Britain upon his release from prison.

"It is intolerable that those who should have been removed from the country when their applications for asylum are refused manage to stay in this country for long periods of time," said the judge.

"They are no doubt often driving unsafe, unlicensed and uninsured cars and clearly have little respect for the laws of this country." Kathryn Proudfoot, the dead boy's sister, said she was "furious" with the sentences - of which Kadri will serve half. "We cannot believe what we have just heard in court, there is no justice," said Mrs Proudfoot, 22.

"We are furious he has got just four months for each of the driving offences. The judge has banned him from driving and taken away his licence - but he hasn't even got a licence and should never have one."

Callum, from Durrington, West Sussex, was crossing the A259 near Worthing with his brother and another boy - on their way to build a den on a patch of scrubland - when he was hit by Kadri's 15-year-old Renault 5.

Kadri was overtaking another car at slightly more than the 50mph speed limit on the dual carriageway when he hit the boy, killing him immediately.

The Algerian sped away from the scene, abandoned his car some distance from his flat in Goring and threw the keys in a bin.

He was traced when members of the public came forward with information after police made appeals through the media.

When they arrested Kadri, details of his life of deception in Britain began to emerge. He left his home in Algeria in 2000 and travelled through Morocco and France where, for £100, he bought a passport in the name Hecene Guelai which had been stolen in 1999.

Crudely replacing the photograph with one of himself, Kadri crossed the Channel by coach and ferry, arriving at Dover and presenting himself to immigration officials to claim asylum.

He admitted his passport was stolen but claimed he was fleeing persecution by a terrorist group in Algeria. The Home Office rejected his asylum claim in November 2001 but Kadri lodged an appeal which failed in 2002.

Unable to win permission to remain in Britain legally, he vanished and became part of the black economy.

Using the false passport, which he still possessed, Kadri was able to gain a National Insurance number, entitlement to some benefits and work. He took jobs at a pub, as an agricultural labourer and as a night cleaner at Worthing hospital.

In summer 2003 he bought the car privately and on the DVLA registration document wrote his name as Benchick Dodo. He did not insure the vehicle and when the MoT certificate lapsed did not seek to renew it.

Judge Thorpe told Kadri: "Had you left the UK when you should have done in September 2002 and not stayed on as an illegal immigrant, you would not have been driving that untaxed, uninsured car that had no current MoT on January 1 and so that young child would still be alive."


Travis Smith

By all accounts, Travis Smith took every possible precaution for the return leg of a June 2002 road trip. He charged his cell phone and signed up for roadside assistance. He packed the night before and left early to avoid midday traffic and the summer heat.

But 19-year-old Smith never made it to his home in Mesa, Ariz. Near Monticello, his 1966 Ford Mustang was struck head-on by a vehicle driven by Isidro Aranda-Flores, an undocumented immigrant who was transporting four other illegal aliens to Pennsylvania.

Smith was killed in the crash, as well as 62-year-old Bernarda Gordillo, a passenger in Aranda-Flores' vehicle.

On Wednesday, Aranda-Flores was sentenced to 6 1/2 years in prison for causing the accident. He pleaded guilty in December to a single count of transporting illegal aliens resulting in death.

Smith did everything he could to prepare for his drive to Arizona, his mother, Tanya Lowe, said

Wednesday. And as he left Lowe's home on the morning of June 16, his thoughts were on his mother.
"I said a prayer and gave him a hug, and he told me not to cry because I always cried when he left," said Lowe, of Colorado. "Travis did everything right. He was a good boy and he did everything right."
The sentiment was shared by Smith's stepmother, who recounted waiting for Smith to return home in anticipation for his upcoming year in college.

"Travis was a young man taking his first step," Elaine Smith said. "And he did everything right."
U.S. District Judge David Sam on Wednesday granted prosecutors' request to increase Aranda-Flores' prison time based on recklessness. Aranda-Flores intentionally left Phoenix at night and avoided the interstate to evade authorities, Sam said. As the sole driver, he drove for nearly nine hours and apparently fell asleep at the wheel.

However, the judge also found that Aranda-Flores did not intentionally cause the accident that killed Smith and Gordillo. He also noted that Aranda-Flores' passengers did not fit the profile of a typical alien smuggling operation. Each had lived in the United States for some time — seven to 10 years, according to defense attorney Sharon Preston — and were returning to their homes and families.

Assistant U.S. Attorney David Backman agreed that the case was atypical. "In this case, as compared to most illegal alien smuggling cases, there is a U.S. citizen who was killed in illegal activity. Out of nothing that had to do with him, he was driving down the road and a car runs head-on into him."
Lowe said she has struggled to make sense of the accident and Smith's role in it.

"People say my son was just in the wrong place at the wrong time," she said. "My son was not in the wrong place at the wrong time . . . The illegal person transporting illegals was in the wrong place at the wrong time."


UNITED STATES of America, Plaintiff-Appellee, v. Isidro ARANDA-FLORES, aka Chilo, Defendant-Appellant.
No. 05-4140.

-- June 13, 2006 
Before HENRY, BRISCOE, and O'BRIEN, Circuit Judges.

Sharon Preston, Attorney at Law, Salt Lake City, UT, for Defendant-Appellant.Karin M. Fojtik, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the brief), District of Utah, Salt Lake City, UT, for Plaintiff-Appellee.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal.   See Fed. R.App. P. 34(a)(2);  10th Cir. R. 34.1(G).  The case is, therefore, ordered submitted without oral argument.
Defendant Isidro Aranda-Flores pleaded guilty to transporting illegal aliens within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II), and (a)(1)(B)(iv), and was sentenced to a seventy-nine month term of imprisonment.   On appeal, Aranda-Flores contends that the district court erred in enhancing his sentence pursuant to U.S.S.G. § 2L1.1(b)(5).   We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and remand the case to the district court with directions to vacate Aranda-Flores' sentence and resentence.

On June 16, 2002, at approximately 7:30 a.m., the Utah Highway Patrol and emergency medical personnel responded to an automobile accident on U.S. Highway 191 near Monticello, Utah. Law enforcement officers determined that Aranda-Flores fell asleep at the wheel of his Ford Thunderbird, crossed the center of the two-lane highway, and collided with a Ford Mustang from the oncoming lane of traffic.   Travis Smith, the sole occupant of the Ford Mustang, was killed on impact.   Aranda-Flores and his four passengers were transported to area hospitals for medical treatment.   One of the passengers, Bernarda Gordillo, later died.   Aranda-Flores, along with the three surviving passengers, Juan Garnica-Gordillo, Jorge Garnica-Gordillo, and Isabel Becerra, were treated for their injuries and eventually released to immigration authorities.1
Aranda-Flores' three surviving passengers admitted to authorities that they had made arrangements to be smuggled into the United States on June 10, 2002.   The three survivors stated that after staying in Phoenix, Arizona, for a few days, Aranda-Flores picked them up and promised to take them to their final destination of Pennsylvania.2  Aranda-Flores and his four passengers departed from Phoenix, Arizona, at approximately 11:00 p.m. the night before the accident.   Aranda-Flores was the sole driver during the eight-and-a-half hour trip to Utah, and he stopped only once to get fuel.   Aranda-Flores later confirmed that he traveled at night on a more remote highway to avoid detection by immigration authorities.   He also submitted that his passengers were going to drive for some periods of the trip, had it progressed as planned.   When questioned by authorities, Aranda-Flores did not remember falling asleep at the wheel.

Aranda-Flores entered a guilty plea pursuant to a plea agreement with the government.   As part of that agreement, the government agreed to recommend that Aranda-Flores receive full credit for acceptance of responsibility.   The government also agreed its motion for upward departure would be based solely on the multiple deaths and injuries resulting from the accident.

At sentencing, the district court followed the presentence report (PSR), which recommended a total offense level of 23 and a criminal history category I. Specifically, the PSR applied U.S.S.G. § 2L1.1, entitled “Smuggling, Transporting, or Harboring an Unlawful Alien.”   The base level for Aranda-Flores' offense was 12.  U.S.S.G. § 2L1.1(a)(2).   Six levels were added for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.”  U.S.S.G. §

2L1.1(b)(5).3  An additional 8 levels were added because the automobile accident resulted in a person's death.  U.S.S.G. § 2L1.1(b)(6)(4).   Finally, 3 levels were subtracted for acceptance of responsibility.  U.S.S.G. § 3E1.1. Aranda-Flores did not have a prior criminal history.
The district court then granted the government's motion for an upward departure of 4 levels on the grounds that multiple deaths and injuries were not adequately taken into consideration by the applicable sentencing guidelines.   U.S.S.G. § 5K2.0;  see United States v. Jose-Gonzalez, 291 F.3d 697, 703 (10th Cir.2002) (holding that, “although death and bodily injury are taken into account by § 2L1.1, the Guideline does not foreclose consideration of multiple deaths and injures as grounds for departure”).   This departure resulted in a total offense level of 27, for a guideline range of 70 to 89 months.   The district court imposed a sentence of seventy-nine months followed by thirty-six months of supervised release.4

Aranda-Flores raises one issue on appeal.   He argues that the district court erred as a matter of law when it applied a 6-level enhancement for “recklessly creating a substantial risk of death or serious bodily injury” pursuant to U.S.S.G. § 2L1.1(b)(5).   We agree with Aranda-Flores that neither the district court's factual findings, nor the evidence underlying those findings, support a 6-level enhancement pursuant to § 2L1.1(b)(5).

We review for clear error the district court's factual findings regarding sentencing and review de novo its legal interpretation of the sentencing guidelines.  United States v. Maldonado-Acosta, 210 F.3d 1182, 1183 (10th Cir.2000);  see Jose-Gonzalez, 291 F.3d at 701 (stating that “whether the factual circumstances supporting a departure are permissible departure factors” is a legal question reviewed de novo).   Under § 2L1.1(b)(5), a defendant's offense level is increased “if the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.”  U.S.S.G. § 2L1.1(b)(5).   The commentary to § 2L1.1 states that the “[r]eckless conduct to which the adjustment from subsection (b)(5) applies includes a wide variety of conduct,” including, “transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, dangerous, or inhumane condition.”  U.S.S.G. § 2L1.1, cmt. n. 6 (2004).

As an initial matter, we emphasize that our analysis must focus on Aranda-Flores' conduct, not the tragic deaths and injuries that resulted from his conduct.  Section 2L1.1(b)(5) provides an enhancement for a defendant's intentional or reckless conduct that creates a substantial risk of death or serious bodily injury.   Again, Aranda-Flores does not dispute the 8-level enhancement pursuant to § 2L1.1(b)(6)(4) or the 4-level upward departure pursuant to § 5K2.0, which account for the multiple deaths and injuries in the case.   See United States v. Cardena-Garcia, 362 F.3d 663, 666-67 (10th Cir.2004) (recognizing that § 2L1.1(b)(5) is a conduct enhancement while § 2L1.1(b)(6) is an outcome enhancement);  Jose-Gonzalez, 291 F.3d at 703 (explaining that § 2L1.1(b)(6) does not take into account multiple deaths or injuries).

Our prior decisions applying § 2L1.1(b)(5) have involved conduct consistent with the commentary's examples, including vehicles with substantially more passengers than the rated capacity of the vehicle or vehicles with the rear seats and seatbelts removed.   See, e.g., United States v. Maldonado-Ramires, 384 F.3d 1228, 1229 (10th Cir.2004) (five passengers forced to lie on the floor of a minivan after the rear seats and seatbelts had been removed);  Cardena-Garcia, 362 F.3d at 664 (seventeen illegal aliens crammed “into a van designed to hold only seven passengers”);  Jose-Gonzalez, 291 F.3d at 699 (sixteen passengers forced to lie on the floor of a van after the rear seats and seatbelts had been removed).   The case before us does not involve these extreme and obviously dangerous conditions.   The commentary to § 2L1.1(b)(5) states that the guideline is applicable to a “wide variety of conduct,” and we have recognized, as have other circuit courts, that the commentary's examples do not foreclose the enhancement's application to other dangerous conditions.   Maldonado-Ramires, 384 F.3d at 1231;  see United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir.2005) (stating that the enhancement is not limited only to the conduct listed in the examples, but encompasses “ ‘situations that, for one reason or another, pose inherently dangerous risks to the aliens being transported’ ”) (citation omitted);  United States v. Rodriguez-Lopez, 363 F.3d 1134, 1138 (11th Cir.2004) (stating that “the applicable commentary ․ emphasizes that this provision applies to an array of factual scenarios and should be applied flexibly”).   But in light of the commentary's examples, it is doubtful that the Sentencing Commission intended § 2L1.1(b)(5) to encompass the defendant's conduct here, i.e., the failure to stay awake while transporting four illegal aliens on a two-lane highway at night.   See Solis-Garcia, 420 F.3d at 516 (“The application of the § 2L1.1(b)(5) enhancement is meant to be flexible;  but its words must be given some restrictive meaning.”).

The relevant facts are undisputed:  Aranda-Flores departed at night to avoid being apprehended by law enforcement;  Aranda-Flores chose a circuitous route on a two-lane highway instead of a major interstate;  Aranda-Flores drove eight-and-a-half hours and made only one brief stop for gasoline;  Aranda-Flores fell asleep at the wheel;  and Aranda-Flores did not have a United States driver's license.5  Considering the totality of the circumstances, the district court ruled that Aranda-Flores' conduct recklessly created a substantial risk of death or serious bodily injury.6
Reckless means “a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.”  U.S.S.G. § 2A1.4 (Involuntary Manslaughter), cmt. n. 1 (2004);  see United States v. Serawop, 410 F.3d 656, 663 (10th Cir.2005) (explaining that “[r]eckless conduct, in the criminal context, is considered a form of intentional conduct because it ‘includes an element of deliberateness-a conscious acceptance of a known, serious risk’ ”) (citation omitted);  Medina v. City and County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992) (stating that “reckless intent is established if the actor was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences”) (42 U.S.C. § 1983 case).   Reckless conduct “necessarily excludes conduct which is merely negligent.”  Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1238 (10th Cir.1999) (citations omitted) (42 U.S.C. § 1983 case);  see Black's Law Dictionary 1058 (7th ed.1999) (characterizing negligent conduct “by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstance”).

State courts have held that falling asleep at the wheel, when considered alone, constitutes negligence, not recklessness.   See, e.g., Clancy v. State, 829 N.E.2d 203, 209 (Ind.Ct.App.2005) (“[M]erely falling asleep while driving is insufficient evidence of recklessness.   Instead, there must be some proof that the driver consciously ignored, for a period of time, substantial warnings that he or she might fall asleep, and continued to drive despite the warnings, before actually falling asleep and causing an accident.”). Moreover, the proper focus “is the conduct that led to the defendant's falling asleep at the wheel, not the conduct that takes place while the defendant is asleep.”  State v. Al-Naseer, 690 N.W.2d 744, 752-53 (Minn.2005) (citations omitted).   Thus, relevant factors include “lack of sleep, length of time at the wheel, presence of sure warning signs, influence of drugs or alcohol, and strenuous activities before driving.”  Id. at 753 (citations omitted).

Here, there is no evidence in the record that Aranda-Flores had not slept prior to departing from Phoenix, Arizona, or that he consciously disregarded warnings of impending sleep during the trip and continued to drive despite those warnings.   Nor is there evidence that Aranda-Flores had a propensity to fall asleep while driving an automobile.   Further, without some evidence showing that Aranda-Flores was deprived of sleep before leaving Phoenix, we do not consider driving for eight-and-a-half hours with only one break as reckless conduct.   The government emphasizes that Aranda-Flores intentionally drove at night and on a more remote route to avoid detection from authorities.   But Aranda-Flores' motive for his actions does not resolve the issue of whether his conduct intentionally or recklessly created a substantial risk of death or serious bodily injury to another person.   Further, there is nothing unlawful, let alone inherently dangerous, about driving on a two-lane highway at night for eight-and-a-half hours with one break.   Finally, we are not persuaded by the government's argument that Aranda-Flores' failure to have a United States driver's license rendered him unfit to drive.
We conclude that Aranda-Flores' conduct leading up to the accident did not recklessly create a substantial risk of death or serious bodily injury to another.   Aranda-Flores, as a carrier of four passengers on an illegal mission, should be held to a heightened duty of care.   See, e.g., Lamb v. B & B Amusements Corp., 869 P.2d 926, 930 (Utah 1993) (citations omitted).   Nevertheless, the evidence, at most, demonstrated that Aranda-Flores fell asleep at the wheel of his Ford Thunderbird after driving on a two-lane highway at night for eight-and-a half hours with one break.   These circumstances may rise to the level of negligent conduct, but without additional evidence, they do not establish that Aranda-Flores acted recklessly to create a substantial risk of death or serious bodily injury to others.   See Clancy, 829 N.E.2d at 209 n. 4 (observing that “briefly and accidently crossing a center line will not support a finding of recklessness, although intentionally crossing a center line may do so”).   Accordingly, the district court erred in applying the 6-level enhancement pursuant to § 2L1.1(b)(5).

We REMAND to the district court with directions to vacate Aranda-Flores' sentence and resentence.

1.    Aranda-Flores entered the United States illegally several months before the accident.   He was twenty-one years old at the time of the accident.

2.    The record contains conflicting accounts of how much money Aranda-Flores was to receive for taking the four passengers to Pennsylvania.   Nonetheless, as part of the plea agreement, Aranda-Flores agreed that he would not argue for sentencing purposes that the offense was committed other than for profit.   See U.S.S.G. § 2L1.1(b)(1) (providing a 3-level decrease if “the offense was committed other than for profit”).

3.    The guideline provides for an increase by 2 levels or an increase to level 18, whichever is greater.  U.S.S.G. § 2L1.1(b)(5).

4.    Aranda-Flores did not oppose the 8-level enhancement pursuant to § 2L1.1(b)(6)(4), or the government's motion for a 4-level upward departure.   However, he challenged the application of the 6-level enhancement pursuant to § 2L1.1(b)(5).   He also requested a downward departure pursuant to § 5K2.0, which the district court denied.

5.    The record does not indicate whether Aranda-Flores had a Mexican driver's license.   The government's brief assumes that Aranda-Flores had a Mexican driver's license.   Aple. Br. at 14.

6.    The PSR stated:  “The offense conduct reveals that, in order to avoid detection, the defendant deliberately departed from Phoenix late at night, traveled a more remote and indirect two-lane route, stopped on only one occasion, and did not account for resulting driver fatigue as the only driver.”

Vol. III, at 7-8.
BRISCOE, Circuit Judge.

Natalie Housand

Whiteville | A Columbus County Superior Court jury weighed available evidence in the case of Jose Jesus Garcia Lopez and came back Friday with a conviction of involuntary manslaughter for a 2004 motor vehicle crash that took the life of a Tabor City woman.

Lopez, 34, was also convicted of hit-and-run/fail to stop for personal injuries or death, assault with a deadly weapon inflicting serious injury and felony death by vehicle.

Prosecutors sought a second-degree murder conviction in connection with the head-on crash Dec. 19, 2004, on N.C. 904 that killed Natalie Housand, 20. Lopez, a Mexican national who testified Thursday through an interpreter, claims his brother was driving his Jeep Cherokee at the time of the crash but said he was too drunk to remember any details.

The maximum prison sentence for involuntary manslaughter is two years. Lopez could have received about 20 years if convicted of the murder count. Lopez will be sentenced Tuesday after a hearing, where aggravating factors will be presented by prosecutors.

The seven-woman, five-man jury deliberated about two-and-a-half hours before returning with its verdict. Disappointment was evident on the face of prosecutors, who like others involved in the trial remain subject to an order by Judge Ola Lewis not to discuss the case.

Trial testimony has shown that after the head-on collision, Lopez fled the crash scene into nearby woods and reappeared more than an hour later, cut and bleeding. Prosecutors maintained throughout the trial that he was driving the Jeep. Defense lawyer Scott C. Dorman told jurors in his summation that there was no physical evidence to prove Lopez was behind the wheel.

Attempts by Dorman and prosecutors to locate Victor Garcia Lopez, the defendant's brother, were unsuccessful. None of the witnesses in the five-day trial saw him at the crash scene. Several state troopers and employees of the Whiteville hospital that Jose Lopez was treated at testified the defendant admitted to driving the car.

Lopez displayed no emotion as the verdict was repeated to him by an interpreter.

Authorities have said Lopez entered the country illegally. He testified during the trial he has been in the United States for 14 years and had legal work papers and a valid N.C. driver's license. During the jury selection process, Dorman questioned each candidate about his or her attitude regarding the immigration issue.

Lopez could receive up to four years for the assault with a deadly weapon conviction. By convicting Lopez of involuntary manslaughter, jurors agreed he was negligent in his actions but did not act with malice. Lopez could receive a prison term of about eight years if he is sentenced consecutively for the four felonies.

A blood sample taken from Lopez four hours after the crash showed a blood alcohol content of 0.12 percent. A prosecution witness testified during the trial that Lopez' BAC at the time of the crash was 0.18 percent, more than twice the 0.08 percent legal limit for drivers in North Carolina.


Ashley Turner

By Ben Murray, Stars and Stripes

European edition, Friday, May 12, 2006

Naval Air Station Keflavik, Iceland — Evidence in the room where Airman 1st Class Ashley Turner was attacked last August suggests she may have struggled with her killer, the case’s lead investigator told a military panel Wednesday.

The disposition of exercise equipment in the room and the body’s location, plus the apparent movement of a poster and other evidence shows that Turner may have resisted her attacker, Naval Criminal Investigative Service agent Fredrick Ewell said.

Ewell was responding to questions from the investigating officer, Col. Mark Allred, during the Article 32 hearing of Airman Calvin E. Hill of Keflavik’s 56th Rescue Squadron. Hill has been charged with the premeditated murder of Turner.

Ewell, the last prosecution witness in the two-day hearing that ended Wednesday, provided a number of details about the crime previously undisclosed by investigators.

Under questioning from both Allred and Air Force prosecutor Maj. Robert Luttrell, Ewell testified that blood had been found on the lace of a pair of shoes seized from Hill’s dorm room, and said one witness stated she saw him running from the building the night of the murder.

Last Aug. 14, Turner was found lying facedown in a pool of blood in a small room adjacent to the exercise room in a dorm she shared with Hill. Turner later was found to have died from head trauma and a stab wound to the neck.

Ewell also revealed that investigators have not found the weapon used to stab Turner and are analyzing several weights from the exercise room to see if they were used to bludgeon the 20-year-old.

At the time, Turner was waiting to testify against Hill in his court-martial on charges that he stole about $2,800 from her by using her bank card.

Ewell said it was his opinion that a “totality” of the evidence connected Hill to the murder. Ewell said he was not confident that evidence pointed to Turner’s boyfriend, Airman Ronald Ellis, who also was based at Keflavik. (see article)

Keflavik, Iceland - A military hearing to investigate whether a U.S. airman could face court martial on charges accusing him of killing a U.S. servicewoman who was scheduled to testify against him in another case concluded Wednesday in Iceland.

Air Force Airman Calvin Eugene Hill, 20, of Warren, Ohio, has been in military custody in Mannheim, Germany, since last summer. He was charged with murder in February in the death of Airman 1st Class Ashley Turner, 20, of the 56th Rescue Squadron.

Turner, of Frederick, Md., died in a hospital after being found unconscious with head and neck injuries in her dormitory in August on the U.S. Naval Air Station in Keflavik. She had been expected to testify against Hill, who faced three charges of larceny and wrongful appropriation, making false official statements and absence without leave.

(more: see article)


Emily Ann Clemons

Published: Jun 11, 2004

TAMPA - Donna Clemons didn't need anyone to tell her the bad news as she looked at her only daughter's unrecognizable face early Thursday.

She knew right away that 16- year-old Emily Ann, lying in a hospital emergency room bed, would never be coming home again.

When Emily told her mother she was going to the mall Wednesday evening, Donna Clemons thought it was a harmless outing. But it turned out to be something much more horrific: The teenager was bashed in the head with a stainless steel pot inside a north Tampa apartment until two other teens thought she was dead, authorities said.

Then the duo - one her former boyfriend, the other his current girlfriend - wrapped her in a blanket, carried her outside into the steamy June night and tossed her mostly lifeless body into a nearby garbage bin, officials said.

More than four hours later, about 1:30 a.m. Thursday, someone heard noises coming from the large metal trash container tucked in the northeast corner of Amaretto Apartments on 22nd Street just south of Bearss Avenue.

Inside, authorities found a bloodied Emily Clemons lying among the trash. She was rushed to Tampa General Hospital, where she was in extremely critical condition Thursday night.

Clemons didn't want to talk publicly about her daughter's condition. It's too personal, she said. Any news would have to come from authorities.

"I miss her, and I think that whoever did this had so much hate and anger in them that they are not human,'' the mother said Thursday evening.

Hillsborough County sheriff's homicide detectives had the trash bin and its contents hauled away as possible evidence in a homicide investigation. Attention quickly focused on the teenager's former boyfriend, 16-year-old Rocky L. Almestica Jr., who lives in Building C, nearest the garbage bin.
Detectives charged Almestica and his girlfriend, Laisha L. Landrum, 16, with tampering with evidence.

"Obviously this is more serious than tampering,'' sheriff's Lt. Rod Reder said. "This is just a good charge for now, that we can prove right now, and we will continue our investigation.''

Those charges likely would upgrade to first-degree murder if the teenager dies, Reder said.

The last time Clemons saw her daughter, she was boarding a city bus to head to the mall between 8:30 and 9 p.m. Wednesday. They said goodbye.

Shortly thereafter, she was beaten in the apartment, authorities said. It wasn't until 4 a.m. Thursday when a sheriff's deputy knocked on her door that the mother realized something was terribly wrong.
"I feel numb, completely numb,'' said the mother, who said she still had not found the courage to enter her daughter's room at home. "But then I don't know how I'm supposed to feel, don't know how I should feel.''

Clemons said she is getting support from her fellow members of Buchanan Baptist Church and her co-workers at Atex Media Command.

Those who know the teenager spoke highly of her.

"She is a very sweet girl, very nice, very polite,'' said Anita Davis, who used to live near Brett Clemons, Emily's father, on Indian Rocks Beach. "Brett would have her there on the weekends. He bought her a Jet Ski, and they would enjoy the weekend together.''

If Emily was washing her dad's car, she would also volunteer to wash the Davis vehicle, as well. If the Davises had their grandson over, Emily would play with him or bring him ice cream.

"She is the sweetest little thing.''

Emily, who loves poetry and her dog, Moses, lives with her mother at Parkview apartments in north Tampa. She had been attending school in Pinellas County while living with her father before returning to live with her mother a few months ago.

Clemons, in an almost monotone voice choked with emotional exhaustion, said she wanted people to know that her daughter would have offered a great deal, from a desire to help troubled children to making it as a journalist who specializes in the law. 

Neighbor Susan Emerson said the teen is affable, talkative and referred to Emerson as "grandma.'' She recently began a job at a Checkers, Emerson said.

Donna Clemons described Almestica as a quiet type, and said the boy and Emily had broken up about a year ago.

Almestica's mother declined to comment Thursday evening about her son, who had a baby with Landrum - whom Donna Clemons knew as "Lala'' - in January.

Authorities say Landrum was the one who beat the teenager in the head. They say both teens conspired to get rid of the body and the stainless steel pot used in the crime.

"Three 16-year-old lives were ruined today,'' Reder said.

The nature of the crime shocked those in the area that is no stranger to its share of crime.

"It's awful. It scares me because I have kids,'' said Rosa Manriquez, who lives in the same building as Almestica and said she moved from California two months ago to get away from crime. "It scares me a lot.''

Another woman, who lives in an adjacent apartment complex and declined to give her name, said she was tired of hearing gunshots and being exposed to violence all the time in the area.

"As soon as my lease is done, I'm leaving here. I have two kids and I feel very unsafe,'' she said.

"What happened is very sad. I was 16 once, also,'' she said in a quiet voice. "She was a human being, a child.''


Stephanie Hummer


In early March of 1994, Stephanie Hummer went missing. Stephanie was just eighteen years old and a freshman at Ohio State University in Columbus, Ohio. Police say Stephanie was snatched off Pearl Alley, east of campus. On March 6, 1994, her body was found in a field near downtown. She had been sexually assaulted and bludgeoned in the back of the head.

Her partially clothed body was found face down in a field about four miles from her dorm. 

She had been raped and murdered. Thirty-five-year-old Jonathan Jerome Gravely is charged with her murder. Police say they have DNA evidence linking him to the crime. It's been 12 long years trying to find Hummer's killer, but a law passed just last year played a key role in tracking down Gravely.
Hummer, a 1993 Finneytown High School graduate (Cincinnati, OH), was on a full scholarship at Ohio State University when she was killed. Police said she was kidnapped near the campus as she walked to a party at 3:00 a.m. in early March of 1994. Police found Gravely at a labor pool site Wednesday, and during questioning he admitted to some involvement in the case, police said. He was charged with one count of murder, and is expected to be arraigned today in Franklin County.

Stephanie Hummer was an athlete with a vivacious personality who dabbled with the idea of becoming a model; she would have turned 30 this year.

In 2002, a park along North Bend Road, a short distance from the home of her parents, Dan and Sue Hummer, was dedicated in her memory.

According to the new law, anyone charged with a felony must submit a sample of their DNA. Gravely was recently convicted of a felony, and as a result, was required to submit a DNA sample. That sample was compared to a DNA sample taken at the time of the murder. Police say they matched. It was the morning of March 6, 1994 when Stephanie Hummer's body was found in a field.
Jonathan Gravely was once a star athlete in Columbus, and no one ever suspected him in this crime until his DNA showed up in the state database.

Jonathan Gravely hid behind a public defender in court Thursday, but police told the judge that he has confessed to the murder.

When the judge set bond at $1 billion, Gravely's family left the courtroom in tears.

If it weren't for a 2003 indictment for non-support, the lowest of felonies, Gravely would still be free. He wasn't paying the mother of his two teenage children the $377 a month he'd been ordered to. He pled guilty to one count and was ordered to pay more than $21,000 in back support.

He also got five-years probation, which allowed a probation officer to swab for Gravely's DNA for the state database.

At one time Gravely had a bright future. He graduated from Whetstone High School in 1989. He was the quarterback on the football team and a star player in basketball.
At the time of Stephanie Hummer's death, Gravely's children were three and five years old.

Gravely's family wouldn't talk to a reporter from 10 TV Thursday, but in the hall outside the courtroom, his mother hysterically proclaimed his innocence.

Court records also show Gravely was ordered to pay support for another child born in 2003, and he had to submit to DNA testing then to prove paternity, but that DNA sample did not go into the State data base, because the law requiring this was not passed until 2005.

Gravely's public defender claims that he didn't waive his Miranda rights and he will be filing a motion to throw out his confession. Gravely has plead innocent to the murder charge.
Jonathan Gravely is being held on a $1 Billion bond !!