Zambada-Niebla's Plea Agreement

The Government today released the plea agreement of Jesus Vicente Zambada-Niebla, son of Sinaloa cartel leader Ismael Zambada-Garcia, in his Illinois case. The agreement was signed a year ago. The press release is here.

The plea agreement is here. He's cooperating, so what would otherwise be a life sentence will be less than that. He's also agreeing to a forfeiture of more than $1 billion.

His guidelines are so high -- offense level 51 (the sentencing table only goes up to level 43) -- that even with a Criminal History Category of I (meaning no significant priors), his guidelines are life in prison (not even 30 to life, or any range at all - just life.)

Since he's been cooperating and will continue to cooperate as requested, the Government anticipates moving for a reduction to a lesser sentence. It also sounds like he's in or will be in the witness protection program, since the agreement says the Government will recommend he and his family be allowed to stay in the U.S. at the end of his sentence. [More...]

Additionally, if the Defendant requests, and in the judgment of this Office the request is reasonable, this Office will recommend to other offices in the U.S. Government that the Defendant and, if appropriate, his family members, be allowed to remain permanently in the United States through appropriate means. Defendant understands that this Office has authority only to recommend such a course of action and that the final decision whether to grant such relief rests within other offices of the Department of Justice and with other agencies of the U.S. government, which will make their independent decision in accordance with applicable law, policy, and procedures.

On the Guideline Calculations:

[B]ased on the facts now known to the government, the anticipated offense level is 51, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of life imprisonment, in addition to any supervised release and fine the Court may impose. Defendant also acknowledges that he is subject to a statutory minimum sentence of 10 years' imprisonment.

As to the cooperation reduction:

At the time of sentencing, the government shall make known to the sentencing judge the extent of defendant's cooperation. If the government determines that defendant has continued to provide full and truthful cooperation as required by this Agreement, then the government shall move the Court, pursuant to Guideline § 5Kl.l, to depart downward from the low end of the applicable Guideline range.

So long as the government asks for any reduction, he agrees not to ask for a sentence under 10 years:

Defendant further understands that the government reserves the right to make whatever recommendation it deems appropriate regarding the extent of any downward departure. Defendant is free to recommend any sentence within the statutory minimum and maximum penalties.

He won't get a safety valve reduction because he's agreeing to a firearm enhancement and that he had a leadership or organizer role in his criminal activity..

He's also agreeing to a $1 billion forfeiture:

Defendant does not contest the entry of a forfeiture judgment in the amount of $1,373,415,000, and against the property identified above, in that this property is subject to forfeiture. Prior to sentencing, defendant will not contest the entry of a preliminary order of forfeiture relinquishing any right of ownership he has in the above-described funds and further will not contest the seizure of these funds so that these funds may be disposed of according to law.

The agreement says it only binds the U.S. Attorney for Illinois. What happens to his District of Columbia case? Sounds like the Government will move to dismiss it based upon his plea in this case.

Who is left for him to cooperate against? Only Alfredo Vasquez-Hernandez is left in the case. He's set for trial in May. While the timing of the unsealing of this year old plea agreement suggests they will call him as a witness, it doesn't seem like the Government really needs him. First, Vasquez-Herandez is only charged with working for the El Chapo faction, not the Zambada-Garcia faction. Second, the Government has the Flores twins, their underling Cesar Perez (who got a whopping 66% sentence reduction for cooperating), and Cooperating Witnesses A and B to make its case against Vasquez-Hernandez.

Will the Government use Zambada-Niebla against his father? Ismael Zambada-Garcia hasn't even been arrested yet. If he is, and fights extradition, it could be years before he gets here. Co-defendant German Oliveres, a plaza boss, has not been extradited as far as I can tell, making any trial against him years off. El Chapo likely will be fighting his extradition for years as well. Can the Government make Zambada-Niebla cooperate against his father and El Chapo if they are brought here years from now? Theoretically, yes, since he's agreeing to postponement of his sentencing until his cooperation is done. Also, the Government can move for an additional sentencing reduction after Zambada-Niebla is sentenced based on new cooperation. But it's equally possible the Government told him they don't expect him to cooperate against his father and/or El Chapo.

Zambada-Niebla will get credit for time served since his arrest in Mexico in 2009. If he gets a 10 year sentence, he'd only have four years left. If he gets 20 years, he'd do around 85% of 16.

I suspect Zambada-Niebla will have a lot of company in the witness protection program. The Flores twins are there. I'd bet his uncle, Jesus Reynoldo Zambada-Garcia is there too. In January, 2013, he agreed to plead guilty to the charges in his Indictment in the Eastern District of New York via a Rule 20 Transfer to the District of Columbia. But there's no docket entry for a plea, which likely means it is sealed. The Bureau of Prisons shows him as no longer being in their custody, another possible sign he was released to the witness protection program.

Being in the witness protection program is not necessarily a get out of jail free card. There are BOP prisons that house pretrial defendants and convicted inmates. It's just that the locations of these facilities are not public.

The Government seems to be gearing up for trial against Vasquez-Hernandez. Yesterday the Court granted three sealed Government requests for "Petitions" in his case. Those are likely Petitions for Writ of Habeas Corpus Ad Testificandum for the Flores twins and other cooperators to be brought to Chicago for his trial. They would be filed under seal to keep their locations from being disclosed.

I'm still not convinced there won't be a last minute plea (without cooperation)from Vasquez-Hernandez. Everyone knows that that his first plan to plead was torpedoed by a sloppy reporter and that he's not cooperating. But if his case does go to trial in May, I think it would be a fascinating one to attend -- even just to watch the Flores twins have to finally testify in public. I hope some reporters or legal bloggers are planning on covering all of it, and will post real-time updates, even from the overflow room.

Here's some background on Zambada-Niebla's claim he was a cooperating witness at the time of his arrest.

Here's a 2008 OIG report on the Witness Protection Program. Here's the authorizing statute.

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