July 28, 2008

Appeals court upholds prison for border agents

Mon, Jul. 28, 2008

Associated Press Writer

SAN ANTONIO -- A federal appeals court refused Monday to throw out lengthy prison sentences for two jailed U.S. Border Patrol agents convicted of shooting an unarmed illegal immigrant and lying about it.

The 5th U.S. Circuit Court of Appeals in New Orleans upheld most of the convictions against former agents Ignacio Ramos and Jose Alonso Compean.

The appeals court vacated their convictions for tampering with an official proceeding, but the three-judge panel refused to reverse the convictions that resulted in their lengthy sentences, saying the jury had spoken.

Ramos and Compean were convicted in 2006 and sentenced to 11 and 12 years in prison, respectively, for the February 2005 shooting of illegal immigrant and admitted drug smuggler Osvaldo Aldrete Davila on the Texas border near El Paso. Both men claimed they shot at Davila in self-defense.

The circuit court said Monday that "the trial of the case was conducted fairly and without reversible error." It affirmed the men's convictions on four counts each. Those include one count each of discharge of a firearm in commission of a crime of violence, which the court said carries a minimum term of 10 years.

The court sent the case back for resentencing and reversed convictions on five tampering counts because the Border Patrol investigation was not an "official proceeding" based on statute.

"However, this may not be of much moment to Ramos and Compean because we leave the major conviction with the major sentence ... untouched," the court said.

David Botsford, Ramos' attorney, said he was pleased the court reversed the tampering convictions.

"They never should have been in there, and that colored the jury's entire consideration of this case," Botsford said, though he added reversing those counts doesn't give his client "much in the way of relief."

Bob Baskett, Compean's lawyer, expressed disappointment.

"I think the court is wrong in a couple of the major points and we will be filing a motion for rehearing about those points," he said. Baskett took issue in particular with the jury instructions and the way the circuit court ruled on arguments about the gun count.

The case drew the attention of some in Congress who complained that U.S. Attorney Johnny Sutton should have focused the prosecution on Aldrete, not the agents.

Sutton said in a statement Monday the court has validated "what this office has said all along - this prosecution was about the rule of law, plain and simple."

"With today's decision, I would ask that those who have criticized the prosecution, generally relying upon misleading and at times false versions of what happened, will re-evaluate their positions in light of the court record," Sutton said.

In July 2007, Sens. John Cornyn, R-Texas, and Dianne Feinstein, D-Calif., were among those who asked President Bush to commute the agents' sentences. Cornyn reiterated his position Monday, saying in a statement that "this case cries out for a commutation that is fair and just, and I once again call on President Bush to act."

Rep. Duncan Hunter, R-Calif., said in a statement that the Fifth Circuit had upheld a "severe injustice."

In April, Aldrete pleaded guilty to federal charges that he smuggled drugs again several months after being shot. Aldrete, who was granted immunity and testified against the agents in 2006, admitted his role in the initial smuggling attempt of about 700 pounds of marijuana.

Associated Press Writer Michael Kunzelman in New Orleans contributed to this report.

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