UNSEALED MEMORANDUM OPINION AND ORDER1

JAMES P. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Sealed Sentencing Memorandum Requesting Downward Departure and Downward Variance, filed December 20, 2013 (Doc. 29)("Memo."); and (ii) the Sealed Defendant's Objection to Presentence Investigative Report, filed December 20, 2013 (Doc. 30)("Objection"). The Court held a hearing on January 6, 2014. The primary issue is whether Defendant Christopher Candelaria, who pled guilty to violating 18 U.S.C. § 924(c)(1)(A) for using and carrying a firearm during and in relation to a drug trafficking crime, is safety-valve eligible under the United States Sentencing Guidelines § 5C1.2. The Court concludes that Candelaria is not safety-valve eligible, because the "in connection with" requirement from § 5C1.2 is analogous to the "in relation to" requirement from 18 U.S.C. § 924(c)(1); the Court finds that Candelaria used or possessed the firearm in connection with a drug trafficking offense, because he knew that the firearm was in the same backpack as the methamphetamine he was trafficking. The Court will deny Candelaria's request for the safety-valve that he made in the Memo., and it will overrule his Objection on the same issue.

FACTUAL BACKGROUND

On July 24, 2013, Candelaria admitted the following facts:

Plea Agreement at ¶ 8.A, at 4, filed July 24, 2013 (Doc. 21). The Presentence Investigation Report, disclosed September 18, 2013 ("PSR"), states that "[a] search of [Candelaria's] vehicle revealed a backpack containing approximately 300 grams of methamphetamine, a loaded .40 caliber Berretta model semi-automatic pistol in the same compartment as the methamphetamine, a digital scale with methamphetamine residue, and two glass smoking pipes with methamphetamine residue." PSR ¶ 7, at 5.

PROCEDURAL BACKGROUND

Candelaria pled guilty to two counts of a three-count indictment, charging: (i) 21 U.S.C. § 841(a)(1), and (b)(1)(B), possession with intent to distribute fifty grams or more of a mixture and substance containing methamphetamine; and (ii) 18 U.S.C. § 924(c), using and carrying a firearm during and in relation to a drug trafficking crime. See Plea Agreement ¶ 3, at 2. In the PSR, the United States Probation Office ("USPO") notes that the "guideline imprisonment sentence for Count 2 of the Indictment" — the violation of 18 U.S.C. § 924(c) — "is 60 months, required by statute, which must be imposed to run consecutive to Count 1 of the Indictment." PSR ¶ 12, at 5-6. On Count 1, the USPO relies on U.S.S.G. § 2D1.1 to calculate a base offense level of 34. See PSR ¶ 13, at 6. The USPO decreased the offense level by 2 levels for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and decreased an additional 1 level for acceptance of responsibility pursuant to § 3E1.1(b), resulting in a total offense level of 31. See PSR ¶¶ 20-22, at 6. The USPO asserts that Candelaria is "not safety valve eligible." PSR ¶ 78, at 17.

Candelaria asserts that he "put the methamphetamine in the backpack that belonged to the [confidential source ("CS")] and intended to return the backpack to the CS when he made delivery of said methamphetamine," but that "[t]here is no evidence that Mr. Candelaria's fingerprints were found on the pistol," nor is there "evidence that Ms. Candelaria actively possessed the gun by touching it." Objection ¶¶ 5-9, at 2. Candelaria objects to the PSR's conclusion that he is not safety valve eligible pursuant to § 5C1.2 and 18 U.S.C. § 3553(f). See Objection at 4. He argues that the 2-level decrease pursuant to U.S.S.G. § 5C1.2(a)(2) is appropriate, because, in his view, he did not use or possess a firearm in connection with the drug trafficking offense. See Objection at 4. He compares his case to United States v. Mendez-Velarde, 798 F.Supp.2d 1249, 1251 (D.N.M. 2011)(Browning, J.), in which the Court determined that the defendant was safety-valve eligible after finding that the defendant did not possess a firearm in connection with the offense within the meaning of § 5C1.2. See Objection at 6-7. Candelaria points out that, in United States v. Mendez-Velarde, the defendant was selling prepackaged quantities of methamphetamine out of a hotel room, and the methamphetamine was in a small lock box that also contained a handgun. See Objection at 6 (citing 798 F. Supp. 2d at 1251). "The defendant contended he did not pack the box or decide what would go in the box, did not remove the gun from the box, and received the box and its contents from his superior in the organization"; further, he "did not touch the gun, . . . did not expect to, and the gun was not loaded." Objection at 7 (citing 798 F. Supp. 2d at 1251). Candelaria explains that the

and that, "while there was some evidence that the defendant may have actively possessed the gun, the preponderance of the evidence supported a finding that the defendant did not possess the gun, even though the drugs were being sold out of the lock box." Objection at 7 (citing 798 F. Supp. 2d at 1253).

Likewise, Candelaria argues that he is safety-valve eligible, because, in his view, there is no evidence that his fingerprints were on the gun or that he actively possessed the gun. Objection at 7. Although the gun was loaded, he asserts that "[t]he compartment (backpack) belonged to the CS and was being returned to him with the methamphetamine having been put inside the compartment by Defendant," and he "intended to simply return the backpack to the CS with the methamphetamine inside." Memo. at 7-8. Candelaria notes that he is otherwise eligible for the safety valve, because his

Objection at 8. See Memo. at 7-9 (reiterating his argument that he is safety valve eligible).

In the Addendum to the Presentence Report, dated December 23, 2013 ("Addendum"), the USPO maintains that Candelaria is not safety valve eligible, because he pled guilty to using and carrying a firearm during in relation to a drug trafficking crime, and, thus, he "possessed a firearm in connection with trafficking methamphetamine." Addendum at 1.

The United States asserts that Candelaria "is not eligible for an adjustment to his offense level under the safety valve because he admitted that he possessed a firearm in furtherance of his drug trafficking offense," and, thus, it "opposes any departure based on claims that the firearm was not possessed in connection with the drug trafficking offense." United States' Sealed Sentencing Memorandum, filed December 30, 2013 (Doc. 31)("United States' Memo.").

The Court held a sentencing hearing on January 6, 2013. The Court noted that, in its previous opinion — United States v. Mendez-Velarde — it had recognized a difference between constructive and active possession related to the § 2D1.1 enhancement, and to the § 5C1.2 safety valve. See Transcript of Hearing at 5:10-6:20 (Court), taken January 6, 2013 ("Tr.").2 It said that Candelaria's situation is different, however, because the Court is not analyzing § 2D1.1, but 18 U.S.C. § 924(c), as that is the statute to which Candelaria pled guilty. See Tr. at 6:20-7:2 (Court). The Court directed the parties to United States v. Archuleta, 257 F. App'x 116 (10th Cir. 2007)(unpublished),3 in which the Honorable Terrence L. O'Brien, United States Circuit Judge for the United States Court of Appeals for the Tenth Circuit, said that the "in connection with requirement" from § 5C1.2 "is analogous to the in relation to requirement" in 18 U.S.C. § 924(c). Tr. at 7:7-14 (Court). The Court said that, under United States v. Archuleta, "there is a real possibility that the plea itself to Count II forecloses the argument that the safety valve should be granted." Tr. at 7:24-8:2 (Court). The Court noted that the Plea Agreement tracked the language of 18 U.S.C. § 924(c). See Tr. at 8:2-16 (Court). The Court went on to quote from the Plea Colloquy, noting specifically that Candelaria said that he would not be safety valve eligible and that, although he at first denied knowing that the firearm was in his vehicle, he eventually admitted that fact. See Tr. at 8:18-11:23 (Court). The Court quoted the following interaction among the Honorable Karen B. Molzen, United States Magistrate Judge for the District of New Mexico, who took Candelaria's plea; Candelaria; Candelaria's counsel, Thomas J. Clear, III; and the Assistant United States Attorney who was at the plea hearing, Holland Kastrin:

Liberty Court Recorder at 1:54:38-1:58:04, taken July 24, 2013 (emphasis added). The Court said that it was inclined to overrule Candelaria's objection, because, by pleading guilty to 18 U.S.C. § 924(c), he could not meet the requirements of § 5C1.2, and further, because Candelaria conceded at the Plea Colloquy that he was not safety valve eligible. See Tr. at 11:24-12:9 (Court). The Court asked whether Candelaria would prefer the Court not to accept his guilty plea and the Plea Agreement; Candelaria responded that he did "not want to raise any issue that [would] cause the plea to not be effective." Tr. at 12:11-24 (Court, Clear).

Candelaria explained that he thought it was appropriate to argue for the safety valve, considering that the firearm was located in the CS' bag and he intended only to deliver the methamphetamine to the CS without using the firearm, but that he did not want to lose the benefit of the Plea Agreement. See Tr. at 13:4-14:16 (Clear). The United States countered that

Tr. at 15:3-12 (Mysliwiec). The United States noted its concern about defendants pleading guilty to crimes that they did not commit to receive a lesser sentence, but, given Judge Molzen's questioning at the Plea Colloquy, it said it was satisfied that Candelaria pled guilty because he was actually guilty and that Candelaria's answer that he did not know the firearm was in the backpack was a miscommunication. See Tr. at 15:14-16:22 (Mysliwiec). The Court asked Candelaria to affirm what he knew about the firearm's location in the backpack with the methamphetamine:

Tr. at 16:25-17:25.

ANALYSIS

The Court will overrule Candelaria's objection to the PSR, because he is not safety valve eligible under § 5C1.2. The Tenth Circuit's decision in United States v. Archuleta leads the Court to this conclusion, combined with Candelaria's admissions and concessions in the Plea Agreement and at the Plea Colloquy.

Candelaria pled guilty to two counts, including using and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). See Plea Agreement ¶ 3(b). 18 U.S.C. § 924(c)(1)(A) provides:

18 U.S.C.A. § 924(c)(1)(A). To be eligible for the safety valve in U.S.S.G. § 5C1.2, one requirement is that "the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense." U.S.S.G. § 5C1.2(a)(2).

Although Candelaria correctly notes that the Court has previously determined that the "in connection with" language in § 5C1.2(a)(2) is narrower than U.S.S.G. § 2D1.1(b)(1), which provides that, "`[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels,'" United States v. Mendez-Velarde, 798 F. Supp. 2d at 1252 (quoting U.S.S.G. § 2D1.1(a)(5)), his argument falls short, because the Court is not comparing § 5C1.2(a)(2) to § 2D1.1(b)(1), but rather, it is comparing the "in connection with" language in § 5C1.2(a)(2) to the "in relation to" and "in furtherance of" language in 18 U.S.C. § 924(c)(1)(A). The Tenth Circuit in United States v. Archuleta determined that

United States v. Archuleta, 257 F. App'x 116, 123 (10th Cir. 2007)(unpublished). In that case, the defendant had pled guilty to "conspiracy to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. § 846," and to "carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)." 257 F. App'x at 119. The defendant had left the firearm in the console of his car when he went into another vehicle to sell methamphetamine to the undercover officers, but the Tenth Circuit concluded that "both proximity and the potential to facilitate the offense" were present, and thus, the defendant used or possessed the firearm in connection with the drug trafficking offense. 257 F. App'x at 13-24. The Tenth Circuit noted that, "[e]ven if the firearm did not directly facilitate the drug transaction (as the district court concluded), it certainly had the potential to do so." 257 F. App'x at 124.

Similarly here, Candelaria admitted that he "used and carried a .40 caliber Beretta pistol during and in relation to" possessing methamphetamine, Plea Agreement ¶ 3.A; the Court finds that he used or carried that firearm "in relation to" the drug trafficking offense, because of the firearm's close proximity to the drugs — they were in the same backpack — and the firearm's potential to facilitate the offense, and because Candelaria admitted to knowing that the firearm was in the backpack, meaning that, had he felt threatened, he could have retrieved the firearm to protect himself or the drugs. The Court will deny Candelaria's request for safety-valve relief that he made in the Memo. and will overrule his Objection.

IT IS ORDERED that: (i) the Defendant Christopher Candelaria's request for a 2-level reduction under United States Sentencing Guidelines § 5C1.2 that he made in the Sealed Sentencing Memorandum Requesting Downward Departure and Downward Variance, filed December 20, 2013 (Doc. 29), is denied; and (ii) the Sealed Defendant's Objection to Presentence Investigative Report, filed December 20, 2013 (Doc. 30), is overruled.