United States District Court, D. Colorado
SENTENCING MEMORANDUM AND ORDER
JOHN L. KANE, District Judge.
On October 11, 2013, following a four day jury trial, Defendant Kefelegne Alemu Worku (hereafter "Worku") was convicted of three crimes: Unlawful Procurement of Citizenship or Naturalization; Aggravated Identity Theft; and Fraud and Misuse of Visas, Permits, and Other Documents. The maximum term of imprisonment on the Unlawful Procurement charge is ten years. The charge of Aggravated Identity Theft carries a mandatory penalty of two years' imprisonment, which must be consecutive to the Unlawful Procurement sentence. The third charge of Fraud and Misuse of Visas, Permits and Other Documents carries a maximum of ten years. A term of supervised release not to exceed three years on Counts 1 and 3 and one year on count two may likewise be imposed with the proviso that all supervised release terms shall run concurrently. The maximum fine that can be imposed is $250, 000 per count which can be waived and a mandatory special assessment of $100 per count which cannot be waived.
The gravamen of the charges for which Worku was convicted was his fraudulent entry into the United States by using false and misleading documents purporting to identify himself as another. His plan was executed in Kenya, where he had lived for approximately 13 years after fleeing his native Ethiopia. While in Kenya, Worku assumed the identity of another man, claimed parenthood of that man's children and obtained refugee status under that man's identity. In 2004 he gained entry into the United States using that false identity and providing additional false documents. Continuing with that fraud, he was granted permanent refugee status in 2008 and U.S. citizenship in March 2010. The false identity under which Worku was granted citizenship was that of Habteab Berhe Temanu, deceased, who was also a native of Ethiopia.
Information contained in an Affidavit in Support of Search Warrant of Worku's residence, signed by a magistrate judge, provides the following background on the political environment in Ethiopia in the late 1970's giving rise to the facts in this case:
...[I]n the late 1970's in Ethiopia, Mengistu Haile Mariam rose to assume unofficial control of the Provisional Military Administrative Committee (PMAC), also known as the Dergue. The Dergue was a committee of nearly 120 military officers, that, once it came to power in the mid-1970's as a Marxist regime, abolished Ethiopia's Constitution and arrested the former emperor and members of the imperial government for alleged crimes against the Ethiopian people. During this time Mengistu commanded the execution of nearly 60 former government officials. Mengistu gained full control in 1977 which unleashed a two-year campaign in Ethiopia known as the "Red Terror." During the Red Terror tens of thousands of Ethiopian men, women, and children suspected of being members or supporters of the anti-Dergue revolutionary group known as the Ethiopian People's Revolutionary Party (EPRP) were arrested, tortured, and summarily executed. Those individuals who were detained were incarcerated in government prisons with deplorable conditions including being packed by the hundreds into airless, lightless cellars, where they could hear the screams of those being tortured while they awaited torture themselves. One such prison was known as "Kebele 15" or "Kefetegna 15, " which in English roughly translates to "Higher 15." The Higher 15 prison housed approximately 1500 prisoners who had been imprisoned due to their political opinions and affiliations.... It is not known how many were killed, imprisoned or forced to flee from Ethiopia during the Red Terror campaign, but historical accounts indicate that a minimum of 10, 000 people were killed in the city of Addis Ababa alone in 1977 with probably comparable numbers in the provinces in 1977 and 1978.
The Sentencing Guidelines.
While the sentencing judge is not required to impose a sentence within the Guidelines range, U.S. v. Booker , 543 U.S. 220, 245 (2005), and commits error when he treats the Guidelines as mandatory, U.S. v. Labastida-Segura , 396 F.3d 1140, 1143 (10 Cir. 2005), the judge is nevertheless required to calculate correctly a Guideline sentence. U.S. v. Kieffer , 681 F.3d 1143, 1164-65 (10th Cir. 2012). The judge has discretion to impose a sentence within the Guidelines or to deviate from their range. Booker at 245. In short, the Guidelines are advisory, but the obligation is to ascertain the calculation in order to make certain the accuracy of the tendered advice.
The Probation Office of the District of Colorado has calculated the Guideline imprisonment range, and neither the Government nor the Defense has objected to the accuracy of those calculations. Worku has filed 31 objections to the Presentence Report, but none relates to the calculations. I have reviewed the calculations and agree they are correct. The Guideline range for Counts One and Three is zero to six months. For Count Two the Guideline sentence is the minimum term of imprisonment required by statute: 24 months consecutive. The term of supervised release is not more than three years for Counts 1 and 3 and one year for Count 2. According to statute multiple terms of supervised release must run concurrently. 18 U.S.C. § 3624 (e). Worku is ineligible for probation on all counts. The Guideline range for a fine is $1, 000 to $10, 000 and the costs of prosecution are required to be imposed on the defendant. If, however, a defendant is impecunious, the fine may be waived. The same applies to the expected costs of the government for any term of imprisonment and supervised release. The most recent data provided by the Administrative Office of the U.S. Courts is $79.31 per day for imprisonment and $9.17 per day for supervised release. A special assessment of $100 per count for each of the three counts is mandatory. 18 U.S.C. § 3013. No restitution is owing in this case.
The Offense Conduct.
More than 30, 000 Ethiopians live in the Denver metropolitan are. Many of these people live in the eastern part of Denver or directly east in the adjoining City of Aurora. On May 11, 2011, Kiflu Ketema, a naturalized United States citizen born in Ethiopia, received a call from his brother, Samuel, to go to an Ethiopian restaurant in Aurora known as the Cozy Cafe. Samuel alerted Kiflu that he had seen an older man at the restaurant whom he suspected had been an official at an Ethiopian political prison in which Kiflu had been imprisoned in the late 1970's. This former official was rumored to be in the Denver area, but Samuel, having never seen him in Ethiopia, was unsure of the identity.
When Kiflu drove to the restaurant the man was standing outside, smoking and talking on a cell phone. Kiflu immediately recognized him, by face and voice, to be Kefelegne Alemu Worku, a notorious official from the Higher 15 prison in Addis Ababa, Ethiopia. Kiflu had witnessed Kefelegne Alemu Worku torture political prisoners who opposed the regime in power, then known as the Red Terror. Samuel Kitema wrote down the license plate number of Worku's car.
A few days after seeing Worku, Kiflu Ketema reported his discovery to Special Agent Jeffrey Lembke of the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI). Special Agent Lembke traced the license plate number and found the car was listed to Habteab B. Temanu. He then reviewed the Alien file (A-file) maintained in the U.S. Citizenship and Immigration Services (CIS) database for Habteab B. Temanu. Those records reflected that Habteab B. Temanu entered the United States from Kenya as a refugee on July 12, 2004 and that he had traveled to this country with four children he claimed were his own - Yishak Habteab Berhe, Amanuel Habteab Berhe, Meraf Habteab Berhe, and Tans Berhe.
Special Agent Lembke took a photograph of Habteab Berhe Temanu from the A-file and compiled a photographic line-up of it and five other photographs of Ethiopian males similar in age to Worku. Kiflu Ketema identified Worku's photograph as that of the person he knew to be Worku.
Kiflu Ketema testified at the trial that he saw Worku, whom he knew as Kefelegne Alemu, participating in beating political prisoners at the Higher 15 prison. He had heard Worku say such things as, "I am going to hit him and dump him." He testified further that he knew Worku to be "a big fish" at the Higher 15 and that he was the "most feared"of those in control. He identified Worku and testified he did so with one hundred percent certainty.
Samuel, the eldest son of Habteab Berhe Temanu, came to the United States from Ethiopia in 1995 on a diversity visa. He became a naturalized citizen in 2001. In 2000 he had sought to sponsor his father's and his younger siblings' immigration from Ethiopia to the United States. He was concerned for their safety because between 1997 and 2000 there was an armed conflict between Ethiopia and Eritrea, a former part of Ethiopia. It was common for Ethiopia to send fighting-aged males with Eritrean blood back to Eritrea and his father, Habteab Berhe Temanu, was from Asmara in present day Eritrea. The father and Samuel's youngest brother, aged 14, had been sent back to Eritrea. This brother had been forced to join Eritrean armed forces and was killed.
Fearing for his other siblings, Samuel convinced them to leave Ethiopia and go to Kenya where they could obtain refugee status and apply for admission to the United States. His father left Eritrea and joined them in Kenya, but his physical and mental states had deteriorated to such an extent that the family feared he could not successfully complete the required in-person refugee interviews.
To obtain refugee visas, interviews are required. Children of a refugee can qualify in the same application process as a parent if their relationship is established by the submission of biographical information and identification by the principal applicant. Samuel Berhe's fears, however, were well-founded. Habteab Berhe Temanu was so demented that he was unable to recall his children's names or dates of birth and his children's derivative status could not be established without his being interviewed. Searching for a way out, the siblings found a broker in Kenya who was in the business of connecting people with vacant refugee spots for a fee. He introduced them to Worku who thereupon falsely assumed the identity of Habteab Berhe Temanu. The father later returned to Eritrea where he died on March 29, 2005. Worku learned the children's names and dates of birth, participated in the interviews as if he were their father and immigrated to the United States with Samuel Berhe's four remaining siblings.
Once in the United States, Samuel, his siblings and Worku, known to the family as "Tufa, " resided in Denver, Colorado for about seven months. Samuel, Amanuel and Meraf Berhe each identified Worku at trial as the man who immigrated with them using their father's name and identity and lived with them in Denver. They also testified that their biological father was dead.
While in Colorado, Worku filed Form I-485, Application to Register Permanent Residence or Adjust Status, with the official immigration authority. In the application he identified his children as Samuel Habteab Berhe, who had sponsored the family's immigration and Yishak Habteab Berhe, Amanuel Habteab Berhe, Meraf Habteab Berhe, and Tans Berhe, the four children who had traveled with him from Kenya. He represented himself to be Habteab Berhe Temanu. As proof of identification for the application, Worku presented a Colorado driver's license and a social security card in the name of Habteab Berhe Temanu. On January 19, 2008, Worku's completed form I-485 was approved and he was granted permanent residency in the United States and a Permanent Resident Card. The mailing envelope for that card was recovered from Worku's apartment when a search warrant was executed on August 24, 2012. On the same date, at the time of his arrest, the Colorado driver's license and the social security card bearing the name of Habteab Berhe Temanu were recovered from Worku's wallet.
On November 22, 2009, Worku, while still residing in Colorado, filed Form N-400, Application for Naturalization, in which he submitted the same fictitious biographical and family information. On March 2, 2010, the Application was approved and he was granted United States citizenship. As proof of identification for this application, Worku submitted his Permanent Resident Card and the Colorado driver's license, each bearing the name of Habteab Berhe Temanu. He was issued Certificate of Naturalization number 32776687. He retained possession of the Permanent Resident Card until he was required to surrender it when he took the Oath of Allegiance and received his Certificate of Naturalization.
On August 24, 2012, following his arrest, Worku admitted to Special Agent Lembke that his true identity was Kelefegne Alemu Worku, that he had lived in Kenya for 13 years and that while there he had assumed the name and identity of Habteab Berhe Temanu. He admitted that he had worked in the district in Addis Ababa, Ethiopia, known as ...