Inmate wins long-shot appeal to U.S. Supreme Court

McClatchy NewspapersDecember 13, 2010 

WASHINGTON — Alejandra Tapia smuggled aliens, abused drugs and jumped bail. Now she's beaten the legal odds.

In an extreme long shot, the one-time California resident and her public defenders convinced the Supreme Court to hear a challenge to her prison sentence. The decision, announced Friday, could resolve a big difference of judicial opinion and help shape sentencing nationwide.

Tapia argues that a judge erred when he increased her federal prison sentence so that she might be eligible for a rehabilitation program.

"Rehabilitation is not an appropriate consideration for deciding whether imprisonment should be imposed, or for deciding the length of the defendant's prison sentence," one of Tapia's former attorneys, Doug Keller, said in his brief.

The oral argument and a final decision in Tapia v. United States are months away. Simply securing Supreme Court review, though, gives Tapia a rare thumbs-up in an otherwise exceedingly bleak life.

"She has been sexually and physically abused since she was a teenager ... and she needs help," U.S. District Judge Barry Moskowitz noted, according to an April 30, 2009, trial transcript.

Tapia's attorney, Michelle Betancourt, added at the 2009 sentencing hearing that Tapia "has already experienced a lot, much more maybe than most" people under 30, including "her entry into motherhood at a very, very young age."

"She never really had a chance actually to deal with some of the issues that she had been affected by as a young child," Betancourt added.

A victim of what her attorney called "sexual torment," Tapia is serving a 51-month sentence at Federal Medical Center Carswell, near Fort Worth, Texas. She's scheduled to be released in September 2012. If she wins her Supreme Court case, she could get out earlier.

Legally speaking, few people in Tapia's position get even this far.

In April, a three-judge panel of the 9th U.S. Circuit Court of Appeals quickly flicked off Tapia's initial challenge without bothering with an oral argument. The appellate court's two-page decision was deemed too insignificant to publish.

Tapia persevered. Her "in forma pauperis" petition to the Supreme Court meant that she didn't have to pay the usual $300 fee. It also landed in a pile from which few cases emerge. Last year, the court's docket included 3,678 "in forma pauperis" petitions. Of these, justices agreed to hear fewer than 10.

Intriguingly, the Obama administration's attorneys say they agree with Tapia's conclusion.

The administration, too, says judges shouldn't take rehabilitation into account in determining the length of a sentence. Nonetheless, the administration's attorneys had insisted they could impose this sentencing change without a Supreme Court ruling.

"Any review ... would be premature," the solicitor general's office argued.

Tapia's unexpected route to the Supreme Court began Jan. 14, 2008, when she and a friend were driving from Mexico into the United States. At the San Ysidro crossing on the border, a U.S. border guard thought the friend appeared nervous. The Jeep Cherokee also reeked of gasoline. On further inspection, officials found two illegal immigrants stuffed into the car's reworked gasoline compartment.

A U.S. citizen, Tapia previously had been convicted of possessing 66 pounds of marijuana for sale.

Indicted in March 2008 in Southern California on two counts of smuggling, Tapia took off. Six months later, she was captured in a trailer, where authorities also seized methamphetamine and a sawed-off shotgun. Prosecutors added a third charge, of bail jumping, and secured a conviction.

Tapia asked for a sentence of 24 to 36 months. Moskowitz, though, imposed the 51-month sentence under the belief that it would make her eligible for drug rehabilitation.

The 9th Circuit Court of Appeals has previously said rehabilitation is a legitimate motive in sentencing. Three other appellate circuits, covering such states as New York, Pennsylvania and Florida, though, have ruled otherwise. Resolving such "circuit splits" is frequently a reason the Supreme Court considers a case.

"This shows that lightning sometimes strikes," Keller, Tapia's former attorney, said Monday.

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