JUDGE, FEDERAL PROSECUTOR SPAR OVER DRUG CASE

New Mexico's chief federal judge and a top federal prosecutor traded barbs
in a courtroom showdown Wednesday over the sentencing of a Mexican national
in what is known as a marijuana "backpacker" case.

Chief U.S. District Judge John Edwards Conway summoned U.S. Attorney John
J. Kelly, First Assistant U.S. Attorney Bob Gorence and other top
prosecutors for a "discussion" on what Conway considers to be their
unfairly harsh sentencing policy in some of these cases.

Advance word of the dispute, preceded by Gorence's suggestion to Conway's
secretary that Conway could run for Senate if he didn't like being a judge,
drew an unusually large number of spectators to the third-floor courtroom.

The case involved Luis Carlos Valenzuela-Medina, one of hundreds prosecuted
in federal court in New Mexico each year for backpacking marijuana across
the southern border.

Valenzuela-Medina, 24, described by his attorney Ramon Acosta as a "barely
literate campesino" from Sonora, packed 20 kilos of marijuana across the
border with two other people. Together, they had 94 kilos.

Because the U.S. Attorney's Office has a policy saying the total amount of
drugs in a conspiracy is counted against each individual defendant,
Valenzuela-Medina's plea agreement meant he would have to spend at least
two years in prison.

Conway has made no secret of his distaste for that policy.

Conway believes it has led to gross inequities in sentencing, and has
grilled at least two Las Cruces prosecutors to the point of tears about it
in recent backpacker cases.

He's also commented on the record about inequities and was reversed when
prosecutors took sentencing issues to the U.S. 10th Circuit Court of Appeals.

Conway contrasted the government's deal with Valenzuela-Medina to that of a
defendant in another case who was sentenced last week in Las Cruces. That
defendant received the same sentence even though he had two prior felonies
for tampering with a motor vehicle and driving while intoxicated.

"I'm just suggesting that as a philosophical matter I'd like to have
somebody explain to me why a criminal with two felonies gets cut from 57 to
24 (months) and a backpacker with no record whatsoever gets no deal
whatsoever," Conway said.

Kelly was in Washington, D.C., so Gorence responded.

Fundamentally, Gorence said, "this is uniquely the situation of tension
between co-equal branches. Congress has passed a law. You don't like it but
we're enforcing it. ... This is about a dispute over power."

A principle underlying federal sentencing guidelines in narcotics cases, he
said, is that each member is responsible for all the dope within a
conspiracy. And backpackers, Gorence said, are just a "subset" of that.

Treating Mexican nationals differently in a marijuana case than, say, U.S.
citizens in a Bernalillo County methamphetamine case, would "do violence to
what Congress has told us to do under these sentencing guidelines," Gorence
argued.

He said doing otherwise would create "a disparate situation between
American citizens who would get the full brunt of it, and Mexican nationals."

Asked how federal prosecutors in Arizona handle the same cases, Gorence
acknowledged a difference. In Arizona, he said, backpackers are allowed to
plead to the amount they are carrying, and prosecutors agree to a sentence
of 366 days.

But policy differences among federal prosecutors are a top item of
discussion at the Department of Justice, Gorence said.

"I don't think Arizona is going to be able to continue to do that, your
honor, flaunt what Congress does. And their mistake, I'm confident, will
soon be corrected," he said.

Gorence quoted an opinion by 10th Circuit Judge Bobby Baldock of Roswell
overturning an earlier Conway backpacker sentence of 10 months. The opinion
contains Conway's ruling, in which Conway criticized "circuit judges (who)
never look anybody in the eye in sentencing. They just sit up there on
their lofty little perch and pass judgment on what everybody else does. ...
I don't think there is a single one who has ever sentenced a backpacker."

Baldock ordered Conway to reinstate a harsher sentence. He wrote, "While we
realize that looking defendants in the eye and sentencing them to lengthy
terms of imprisonment is a difficult task, we also realize that a federal
district court judge is not authorized to disregard established law because
he feels it is unfair."

By the end of Wednesday's hearing, Conway agreed to disagree with Gorence,
and exercised his discretion to impose a lesser sentence on
Valenzuela-Medina -- 10 months in prison -- based on a finding that
Valenzuela-Medina's behavior had been "aberrant."

But he couldn't resist quizzing Gorence, the son-in-law of Sen. Pete
Domenici, R-N.M., on which Senate seat Gorence thought Conway should seek.

"I didn't know whether you wanted me to run against Senator (Jeff) Bingaman
or Senator Domenici or move to New York," Conway quipped.

"I wouldn't want you to leave this great state, your honor," Gorence said.