Tuesday, President George W. Bush granted pardons to 19 people and commuted the sentence of one person, according to the Justice Department -- but the names of two jailed Border Patrol agents were conspicuously absent.
Thus ended any hopes of a Christmas commutation of sentence for Ignacio Ramos and Jose Compean in the shooting case of Mexican drug smuggler Osvaldo Aldrete-Davila.
The president left the White House today for the Christmas holiday at the presidential retreat at Camp David.
According to a Bloomberg report, however, President Bush could issue more presidential acts of clemency. The White House “didn’t rule out the potential for additional pardons,” spokesman Tony Fratto said – without any special reference to the agents.
Reportedly, both cases continue under active review by the U.S. Pardon Attorney – after an administrative delay caused by the men appealing their sentences through the normal channels of justice.
Last month, a federal judge in Texas left intact the 11-year sentence for Ramos and also the 12-year sentence for Compean in the shooting case of Mexican drug smuggler Osvaldo Aldrete-Davila.
The two former Border Patrol agents were convicted in early March 2006 for the discharge of a firearm in the commission of a violent crime, violation of civil rights, assault charges, and on charges of tampering with evidence.
Ramos’s defense attorney David Botsford told CNS News that it’s really all about a commutation of sentence at this point -- rather than an outright pardon for the two languishing in solitary confinement.
“I’m asking for a commutation, because he has already served the sentence on all counts of conviction except for the gun count,” Botsford added.
Botsford has consistently debunked media reports that the commutation requests have been denied by the present administration.
Cases Had Been Put on Hold
“They suspended the processing of the commutation petition because of the re-sentencing,” Botsford said. “I don’t think that was necessarily appropriate, but I notified the Office of Pardon Attorney as soon as the re-sentencing was over, asking them to reinstate the commutation process. It’s my understanding they’re going to do that.”
Botsford added that he does not know how long the process will take, or even if it will be decided while Bush is still president. “It should be pretty simple,” Botsford said. “I don’t have the faintest idea how long it’s going to take for them to process.”
Simple or not, that’s where the controversial cases still stand – just weeks from the end of President Bush’s term in office.
Meanwhile, neither the Justice Department nor the White House has any comment on the cases, or whether the two men have any chance of being home for Christmas.
“We never comment on pardons or people who are eligible to apply for a pardon,” White House Press Secretary Dana Perino recently told CNSNews.com. “That goes to the Office of Pardon Attorney at the Department of Justice, and we don’t comment on those deliberations.”
Compean and Ramos were arrested following a shooting incident along the Rio Grande River in Texas on Feb. 17, 2005.
Mexican national Osbaldo Aldrete-Davila entered the country illegally in a van carrying 743 pounds of marijuana. When the two agents confronted him, he scuffled with them and tried to flee back across the border. The agents opened fire. Aldrete-Davila was struck in the buttocks, but continued to flee.
It is illegal for federal agents to fire upon fleeing felons or suspects. The agents later said they saw a shiny object in Aldrete-Davila’s hand they thought was a gun.
After a two-week jury trial, Ramos and Compean were convicted in March 2006 in federal court in El Paso on several charges, including assault with a deadly weapon, obstruction of justice — for failing to report the incident properly — and a civil rights violation. The agents were acquitted of the most serious offense, assault with intent to commit murder.
In October 2006, Ramos, who was nominated to be Border Patrol Agent of the Year, was sentenced to 11 years and one day in prison, and Compean received a 12-year sentence.
Aldrete-Davila was again caught smuggling marijuana while he was waiting to testify against the agents.
In February 2007, a gang of illegal immigrants severely beat Ramos while he was in prison, and he and Compean were placed in solitary confinement for their own protection.
On Nov. 12, in a review of sentence required after the 5th U.S. Circuit Court of Appeals’ decided this year to drop one of the pair’s convictions, a federal judge in El Paso resentenced Compean to 10 years for using a firearm in the course of a felony and two years more for assault and other charges, according to a report in the Houston Chronicle.
The next day, Ramos was resentenced to the same 11-year prison sentence originally imposed on him, the El Paso Times reported.
In the most recent and visible demonstration of support for the two imprisoned agents, 425,000 petitions, plus faxes and phone calls went out this month to both the White House and the U.S. Pardon Office from just one organization.
“The President isn’t going to pardon Ramos and Compean,” said Steve Elliott, president of Grassfire.org Alliance in a recent press release. “So we’re joining a move calling for a commutation of their sentences in an effort to have these men freed and returned to their families as soon as possible.”
In addition to thousands of expected phone calls and faxes, Grassfire is delivering 425,000 petitions to the Office of the Pardon Attorney.
“This is it for Ramos and Compean,” says Elliott. “We are emptying the tank for them. They stood for us in one of the most dangerous areas in the nation, and now we have an opportunity to stand up for them. I’m hopeful that our petitions, phone calls and faxes will grab the attention of the pardon attorney and this travesty can be righted, because we are running out of time.”
Grassfire believes the government overzealously prosecuted Ramos and Compean after they shot fleeing drug smuggler Osvaldo Aldrete-Davila. Both agents were convicted of violating 18 U.S.C. Section 924(c), a law written to increase the penalties when a violent criminal carries or uses a weapon during the commission of a crime.
Interpreting the Law in the Agents’ Favor
Elliott argued as many others have argued, “The law was never intended to be applied to law enforcement officers who use their weapons within the scope of their duties.”
The Gun Owners Foundation (GOF) agrees with Elliot.
In another recent development, the organization has filed two friend of the court briefs for Ramos and Compean. In those briefs, GOF pointed out to the Fifth Circuit Court of Appeals that the 10-year conviction of the two agents is for a crime which doesn’t exist.
The two agents were convicted of the “Discharge of a Firearm in Relation to a Crime of Violence” -- something which is not an offense, say GOF officials, rather it is a sentencing enhancement after the government has established illegal gun possession, use or carrying.
One of the reasons the Border Patrol requires agents to be legally armed is so they can use their guns against armed drug smugglers, GOF officials add.
“Even if the Supreme Court reverses this injustice done to Ramos and Compean, they could expect to sit in jail for upwards of another two years -- for a crime that was impossible for them to commit,” GOF officials concede.
GOF was a friend of the court in a similar case before the Supreme Court. “Our position was upheld nine-to-nothing. It involved a drug dealer who took a gun in payment for a bag of dope. The Feds gave him many extra years because he supposedly had ‘used’ a gun in a crime. The Supreme Court agreed that such a view was ridiculous and clearly not the intent of the law. The Fifth Circuit has simply overlooked these fatal flaws in the government’s case.”
But Botsford hasn’t taken the case to the Supreme Court, yet – since, like the sentence review, it may provoke another placing on hold of his client’s petition for commutation of sentence.
Botsford recently told Fox News, however, that if Bush does not commute Ramos’ sentence, he will take the case to the Supreme Court.
“There are a number of legal issues in that opinion that are very, very crucial for law enforcement throughout the country,” Bostford told Fox, but I’d rather get a commutation than go to the Supreme Court.”
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