Mission businessman convicted of human smuggling calls $150K fine ‘unreasonable’

A Mission businessman convicted of using a speed boat to smuggle people into the country illegally believed a federal judge unfairly fined him $150,000 because he has money and assets.

A federal appellate court disagreed.

In a ruling issued Wednesday, the 5th Circuit Court of Appeals denied Jose Luna’s appeal where he challenged the fine, “urging that it was substantively unreasonable because the district court gave significant weight to irrelevant and improper factors, including his socioeconomic status and a prior arrest not resulting in a conviction.

Border Patrol agents arrested Luna on April 25, 2022, after Texas Department of Public Safety troopers spotted suspicious activity near several cabins used for recreational activity on the Rio Grande the day before and eventually foiled a smuggling attempt.

The complaint about him noted he had prior Border Patrol encounters and an investigation revealed that he owned a speed boat that was navigating up and down the river that day. When several people got out of the speed boat and into a Dodge Ram, a DPS trooper stopped it for speeding and found five people in the country illegally.

“Border Patrol boat units were dispatched … and searched the immediate community for any other illicit activity,” the complaint stated. “Boat agents observed the same speed boat being docked on the Mexican side and loaded onto a trailer. The boat was then taken into interior Mexico.”

Luna eventually reached a plea deal with prosecutors.

On June 12, 2022, he pleaded guilty to bringing in and harboring people in the country illegally.

Later that year, on Oct. 28, 2022, U.S. District Judge Micaela Alvarez sentenced Luna to a year in prison and fined him $150,000.

In sentencing and fining Luna, Alvarez told him that she sentences people frequently on this charge and that usually, part of their reasoning is that they were in financial need.

“If it’s a local person, whether they’re here illegally or a citizen, often what they say is, you know, ‘I needed money,’” Alvarez said, according to Luna’s appeal. “And so when I read your case, I just like, quite frankly, Mr. Luna, I’m at a complete loss.”

Luna’s appeal said he owns J&L Pools and Luna’s Tile Service, among other ventures and Alavrez told him at his sentencing that he was “obviously an astute businessman.”

On appeal, Luna claimed that the $150,000 fine was “substantively unreasonable.”

The maximum fine that could have been levied is $250,000, but Luna said his fine range should have been from $5,500 to $55,000 based on federal sentencing guidelines.

He also said Alvarez’s statements to him about his wealth were irrelevant and improper.

After Alvarez told Luna she was at a complete loss that he was standing before her for sentencing, she said his presence troubled her.

“And so quite frankly it probably troubles me more when I have somebody like you who has actually no financial need to involve themselves in this kind of offense that you would do so,” Alvarez is quoted as saying in the appeal. “And because to me that actually shows a greater disregard for the law.”

Luna and his appellate attorney took issue with the judge’s words.

“The Court’s statements indicate that a person who has financial means should be punished at a greater financial level than one who is indigent,” the appeal stated. “Those who commit the crime for which Mr. Luna was charged are generally poor and have little or no income, and they do it out of desperation.”

In fact, according to Luna’s appeal, his fine is just as devastating as fining those who are poor.

“Fining people with means or who operate businesses that create jobs in the community can have just as much of a devastating effect as fining those who are indigent,” the appeal stated. “Mr. Luna stated in his affidavit attached to his motion for new trial that the two businesses that bring in most of his income are J&L Pools and Luna’s Tile Service.”

The appeal said that Luna’s wife is not trained to run those businesses.

“Those businesses will not survive the time that he is in prison. The employees in those businesses will probably lose their jobs,” the appeal stated. “His family would also be affected in that they would not have the same income they once had with J&L Pools and Luna’s Tile operating at full capacity.”

Texas Comptroller Records on Thursday said both of those businesses still exist and have a right to conduct business in the state, but the state of their operations is not immediately clear or reflected in the comptroller records.

“The Trial Court also did not consider Mr. Luna’s full financial picture, including several other debts that Mr. Luna is currently paying that were inadvertently not presented to the Court during sentencing,” the appeal stated.

Luna also said the judge did not consider his ability to pay the fine; the time it would take to pay it; the impact the fine would have on his family; or the potential loss of jobs.

“The ripple effect of the fine is great and affects not only him, his family, but the community at large,” the appeal stated. “The Court fixated on the fact that because Mr. Luna has higher-end earning capacity, he should be punished at a greater financial level than those who are indigent is substantively misplaced and unjust, particularly considering the lasting effects on him, his family, and the community at large.”

The federal appellate court said his argument was not “well-taken.”

“Inasmuch as Luna asserts that the district court impermissibly relied on his socioeconomic status to impose an above-guidelines fine, his argument is not well-taken,” the appellate court said in its ruling. “The district court’s comments indicate that it did not consider Luna’s financial status in imposing the fine but considered the financial motivation or lack thereof as part of the nature and circumstances of Luna’s offense, as well as the need for the sentenced imposed to promote respect for the law, just punishment, and adequate deterrence, all proper considerations.”

The appellate court took just four pages to address why it was denying Luna’s appeal before affirming the trial court’s sentence of one year in prison and the $150,000 fine.