Two spoiler alerts: (i) this post will be about me playing advocatus diaboli on behalf of a purported real-life devil from Eithiopia whose trial and sentence was held before Senior U.S. District Judge John L. Kane, Jr. with whom I and others had the honor and privilege of writing at our beloved Fault Lines; and (ii) there could be a fortuitous ending for Worku once he’s turned over to Immigration and Customs Enforcement for deportation after he completes his sentence, in that he has a chance of remaining in the U.S. despite being convicted in federal court.
The Denver Post reported on Worku’s last ditch effort before the 10th Circuit of Appeals:
The 10th Circuit Court of Appeals in Denver has dismissed an appeal by a 62-year-old man who claims his false identification as an Ethiopian prison guard who killed and tortured dozens of people led to an unfair sentencing on an unrelated U.S. immigration fraud count.
In a series of appeals and motions, the court dismissed his first appeal after finding that Kefelgn Alemu Worku, 62, failed to prove his case, rejected Worku’s motion to reconsider, and on Friday denied his second appeal on the grounds of ineffective assistance of counsel.
The appeal court ruling said Senior Judge John Kane of the U.S. District Court in Denver was not in error when he allowed prosecutors to mention his prison atrocities.
Never mind that the author commits the Cardinal sin of leaving out links for the 2015 Decision and the 2018 Order denying a certificate of appealability from the 10th Circuit. After a jury trial, Worku was convicted of unlawful procurement of citizenship or naturalization, fraud and misuse of visas, permits, and other documents, and aggravated identity theft.
The ID theft charge carries a mandatory minimum (there’s that familiar term) of 2 years in the can, to run consecutively with the rest of the sentence. The guidelines range on the other counts is 0 to 6 months, to run consecutively with the 2 year term.
In the Sentencing Memorandum, Judge Kane laid out the reasons for a maximum term of 22 years, in spades. Deterring human rights abusers seeking refuge in the U.S. played a part in Worku’s sentencing, and the 10th Circuit agreed that Judge Kane was substantially reasonable in going so far above the applicable guidelines:
The district court considered the § 3553(a) factors and reached three conclusions:
- Mr. Worku concealed his identity to avoid prosecution for the violations of human rights in Ethiopia. With this conduct, “the very integrity of the United States [was] challenged and its claim to decency in the world community [was] besmirched.”
- Mr. Worku was capable of torture and had no neurological or psychotic disorders, though he had clinical depression.
- The crime was serious because it corrupted the established processes of immigration and limited the prospects of truly deserving immigrants. Deterrence was necessary for the United States to avoid “becoming a haven for fugitives from justice in their own countries.” R., vol. I, at 502–11.
Based on these conclusions, the district court imposed the maximum statutory sentence for each count, explaining: “Congress has provided maximum sentences for the most egregious violations of these statutes. If this case is not egregious, I cannot imagine what case would be.”
This rationale fell within the district court’s discretion.
It’s reasonable to disagree with the notion that stiff mandatory minimums don’t provide general deterrence stateside, so it may follow that foreign nationals who fit Worku’s sociopathic/nefarious profile won’t be deterred from fraudulently seeking refuge in the U.S. once their “team” is out of vogue in their native land, and that old team is facing imprisonment, torture, or execution by the team du jour for crimes of seasons past.
Plus, there’s always the notion that uncharged – or even acquitted — conduct should probably not be used as a basis for sentencing. Worku was convicted of unlawful procurement of citizenship or naturalization, fraud and misuse of visas, permits, and other documents, and aggravated identity theft. There’s no indication that Worku was charged or convicted of the horrible crimes the United States’ witness testified to, and even if he had been, some countries don’t afford the accused with the right to a rigorous cross examination and impartial jurists and jurors.
Taking things further up down (?) the troth, monsters like Worku are afforded protection in the United States from the likelihood of being tortured abroad. Once he is released from the custody of the BOP, he will likely have to be processed by ICE and be placed in removal proceedings, even though his convictions for unlawful procurement of citizenship triggered an automatic revocation of it.
There, he may seek deferment* of his deportation to Ethiopia, if he can prove that he is “more likely than not” to be tortured there, since the U.S. is a signatory to the Convention Against Torture. No matter how bad Worku may be, the U.S. immigration system gives him a shot to avoid being sent back to a life of the living hell that he put his victims through. That’s what the U.S. taking the high moral ground is all about, even if it sometimes puts its own citizens through a different kind of torture.
*With 2 caveats: (i) if he wins deferral of deportation, the U.S. can still send him to any country that will accept him. It’s important to remember that if any country gives the U.S. the proverbial finger and says no to taking someone back, the U.S. can’t send him there. And (ii) winning deferral does not guarantee release from custody, and should the conditions in his native country “improve,” he can always be sent back later.