JAMES O. BROWNING, District Judge.
The Court takes its facts from the Presentence Investigation Report, disclosed March 26, 2014 ("PSR"), that the United States Probation Office ("USPO") prepared. On October 11, 2013, government agents in Silver City, New Mexico discovered a pickup truck containing one hundred pounds of marihuana in concealed compartments in the truck bed. See PSR ¶ 12, at 4. The driver of the truck, a confidential
The CI told the agents that he delivered marihuana to Cervantes-Chavez every two to three weeks. See PSR ¶ 13, at 4. The agents sent the CI to make the 100-pound delivery as scheduled and obtained a search warrant for Cervantes-Chavez' residence. See PSR ¶ 12-13, at 4. As the CI and Cervantes-Chavez were beginning to unload the marihuana from the truck bed, agents moved in and detained the two individuals. See PSR ¶ 14, at 4. The agents recovered: (i) the 100 pounds of marihuana compressed into bricks in the bed of the truck; (ii) an additional seventy-five pounds of marihuana in a storage shed outside Cervantes-Chavez' residence; (iii) $19,000.00 in cash in a white cylindrical container in the same shed; (iv) an additional $625.00 in cash on Cervantes-Chavez' person; and (v) two pistols and one rifle inside the residence. See PSR ¶¶ 15-18, at 4-5. Cervantes-Chavez has no prior criminal history. See PSR ¶¶ 37-42, at 7-8.
Cervantes-Chavez pled guilty to possessing a firearm as an illegal alien under 18 U.S.C. § 922(g)(5)(A). See Plea Agreement, filed January 29, 2014 (Doc. 13); Clerk's Minutes for Proceedings Held Before Magistrate Judge Robert H. Scott, filed January 29, 2014 (Doc. 14). The USPO calculates that Cervantes-Chavez has a total offense level of 25 and a criminal history score of 0 — equivalent to a criminal history category of I. See PSR ¶¶ 35, 39, at 7. The USPO calculates the offense level by first applying the guideline for the "unlawful receipt, possession, or transportation of firearms or ammunition." U.S.S.G. § 2K2.1 (capitalization altered for readability). See PSR ¶ 25, at 6. The USPO then applies the cross-reference provision of that guideline, U.S.S.G. § 2K2.1(c)(1)(A), and uses the drug-possession guideline, U.S.S.G. § 2D1.1, for all subsequent calculations. See PSR ¶ 25, at 6.
The USPO calculates that Cervantes-Chavez possessed 99.54 kilograms (219.45 pounds) of marihuana; it arrives at that calculation by adding the 79.38 kilograms (175 pounds) of marihuana found at the scene with 25.4 kilograms (fifty-six pounds) — the "marijuana equivalency" of the $19,652.00 in "drug proceeds" found at the scene
Cervantes-Chavez filed his Objections three months after the disclosure of the PSR. See Objections at 1. He lodges five objections to the PSR. First, he argues that the Court should not apply the cross-reference provision, but should instead calculate his offense level fully under the illegal alien-in-possession guideline. See Objections passim. It is not clear whether this contention is a standalone argument or just a rhetorical flourish to make the points that: (i) the role adjustment has little to do with his crime of conviction, as the criminal organization of which Cervantes-Chavez is a part is a drug organization and not an illegal alien-in-possession organization; and (ii) the adjustment for possessing a dangerous weapon is unfair in light of his crime of conviction necessarily requiring possession of a dangerous weapon.
Second, Cervantes-Chavez argues that, even if the Court rejects his first argument and cross references to the drug-possession guideline, it should apply a base offense level of 22, which reflects the 79.38 KG of marihuana actually discovered, and not a base offense level of 24, which would reflect the 99.54 KG figure that includes the addition of the marihuana weight equivalent of the $19,652.00 in cash discovered at the scene. See Objections at 3-4. His argument is not that money-to-drug-weight conversions are per se prohibited, but rather that there is insufficient evidence — and Cervantes-Chavez contends that the Court should require clear and convincing evidence — to conclude that the money found at the scene was drug proceeds. See Objections at 3-4 ("There is no indication as to whether the amount of money located was there strictly as to some drug transaction related to the marijuana or whether it was an amount accumulated from other sources.").
Third, Cervantes-Chavez argues that the Court should not apply the 2-level enhancement for possessing a dangerous weapon, presumably because that would constitute double-counting with his crime of conviction. See Objections at 5. He outlines the alleged unfairness as follows:
However, the PSR writer then goes back to treat the drug offense as the "offense" conduct not whether it's a gun offense. Having[] converted to the highest level the writer tries to include an additional 2 points for guns being used in an offense for which the defendant is not convicted and in fact which becomes the offense conduct not for the idea of his relevant conduct but for purposes of calculating an offense level that is higher if the underlying offense level for the gun possession is lower.
Objections at 5.
Fourth, Cervantes-Chavez argues that the Court should not apply the 2-level enhancement for being an organizer, leader, manager, or supervisor, both because it reflects an enhancement of a crime other
Last, Cervantes-Chavez argues that the Court should depart or vary downward to reflect the more-lenient Guidelines, which the Commission has approved but which have not yet come into effect. See Objections at 8. He asserts that the application of the impending Guidelines would result in a base offense level of 20. See Objections at 8.
Plaintiff United States of America responded to the Objections within a month, defending all of the USPO's positions in the PSR. See United States' Response to Defendant's Exception to Pre-Sentence Report and Request for Evidentiary Hearing Filed on June 27, 2014 (Doc. 20) at 5-7, filed July 17, 2014 (Doc. 23)("Response"). It defends the role adjustment as follows:
Defendant received a two-level upward role adjustment pursuant to U.S.S.G. § 3B1.1(c). He argued that this was improperly applied as he was a mere mule. He states in his Objection to the PSR that he merely held money and drugs. This statement is biased and self-serving in order to argue for a lesser guideline imprisonment range and sentence. According to the PSR, HSI investigation, and Defendant's admissions as stated above, Defendant was observed by law enforcement unloading the Avalanche truck which was delivering approximately 100 pounds of marijuana stored in hidden compartments to Defendant's residence. Another approximately 75 pounds of marijuana were stored in the shed located within the carport of Defendant's residence, both in bricks and uncompressed form. $19,000.00 was seized from this shed, even though Defendant stated this money was not his. $652.00 was seized from Defendant's person. The CI informed law enforcement that it delivers marijuana to Defendant once every week or two. Through HSI investigation, it believes Defendant to be a facilitator or middle man. Three firearms were seized from inside Defendant's residence. Defendant admitted he is an illegal alien, and possessed a false Social Security card bearing his name. While Defendant may not be the ultimate leader or organizer in this DTO to warrant a four-level increase pursuant to U.S.S.G. § 3B1.1(a), the United States argues that Defendant was properly assessed as a lower level leader or organizer within this DTO pursuant to U.S.S.G. § 3B1.1(c), and a two-level enhancement was properly assessed and warranted.
Response at 6-7 (citations omitted). The United States also notes that it does not
The Court held a hearing on September 12, 2014. See Transcript of Hearing (taken September 12, 2014)("Sept. 12, 2014 Tr.").
Sept. 12, 2014 Tr. at 15:6-16:16 (Wang, Grant).
On cross examination, Cervantes-Chavez flushed out that the agents had recovered no packaging materials, drug ledgers, "crib sheets," or bank account information from the scene. Sept. 12, 2014 Tr. at 17:17-18:20 (Juarez, Grant). Cross examination also elicited the following exchange:
Sept. 12, 2014 Tr. at 19:12-24 (Juarez, Grant).
The United States next called Frank Barahona, a special agent with Homeland Security Investigations ("HSI"), the investigative branch of the Immigration Customs Enforcement Bureau. See Sept. 12, 2014 Tr. at 20:14-21:6 (Wang, Court, Barahona). Barahona first testified about how the $350.00/lb. conversion factor was obtained, asserting that the price of one pound of marihuana in Albuquerque is approximately $500.00 but that the price sinks to roughly $345.00/lb. when multiple pounds are purchased, and the $350.00/lb. figure represents a "happy medium" price. Sept. 12, 2014 Tr. at 21:22-22:17 (Barahona, Wang). Barahona testified that the USPO got its figure from HSI. See Sept. 12, 2014 Tr. at 21:14-22:4 (Wang, Barahona).
Barahona also testified that, "based on [his] background and experience, . . . Cervantes[-]Chavez is not a mule." Sept. 12, 2014 Tr. at 23:17-18 (Barahona). Barahona based this conclusion on three facts: (i) that mules do not typically carry the amount of cash that Cervantes-Chavez was carrying, see Sept. 12, 2014 Tr. at 23:22-24:2 (Barahona); (ii) that mules typically "do not carry[] over 100 [p]ounds," Sept. 12, 2014 Tr. at 24:2-3 (Barahona); and (iii) that he "ha[s] not encountered mules with firearms in their possession," Sept. 12, 2014 Tr. at 24:4-5 (Barahona). On cross examination, Cervantes-Chavez asked Barahona whether he found any drug ledgers or packaging material in Cervantes-Chavez' residence—which he did not—and whether he was aware of anyone in particular that Cervantes-Chavez was responsible for supervising — Barahona was not, and he could not name any members of the criminal organization other than Cervantes-Chavez and the CI. See Sept. 12, 2014 Tr. at 25:4-16 (Juarez, Barahona); id. at 25:17-26:13 (Juarez, Barahona, Wang, Court). Barahona also conceded that, although he suspected that the cash discovered at the scene was connected to the drug trade, he did not know for sure. See Sept. 12, 2014 Tr. at 27:1-21 (Juarez, Barahona, Wang, Court).
The parties then reiterated the arguments that they made in their briefs, with the United States adding a reference to U.S.S.G. § 3B1.1 cmt. 2, which states that "[a]n upward departure may be warranted in the case of a defendant who did not organize, manage, or supervise another participant, but who nonetheless exercised management responsibility over the property, assets, or activities of [a] criminal organization." Sept. 12, 2014 Tr. at 32:9-14 (Wang). The Court then adjourned the hearing and set a time to reconvene on September 17, 2014. See Sept. 12, 2014 Tr. at 38:18-39:2 (Court).
The parties and the Court reconvened on September 17, 2014. See Transcript of Hearing (taken September 17, 2014)("Sept. 17, 2014 Tr."). After the parties briefly rehashed the arguments from their briefs, the Court announced that it would convert the cash found at the scene to its drug-weight equivalent using the conversion factor that the USPO supplied and that the United States supported with evidence. See Sept. 17, 2014 Tr. at 5:19-6:4 (Court). The Court further stated that it would
The Court clarified that Cervantes-Chavez' final offense level under the current Guidelines is 23, but that it would vary the offense level to 21 to reflect the impending Guidelines. See Sept. 17, 2014 Tr. at 23:21-24:4 (Court). The Court noted that, when combined with his criminal history category of I, this offense level indicates a "working" Guidelines sentencing range of 37-46 months. Sept. 17, 2014 Tr. at 24:2-5 (Court, Probation Officer). The Court ran through the factors in 18 U.S.C. § 3553(a) and concluded that, other than the 2-level downward variance reflecting the impending Guidelines, which was already factored into the "working" Guidelines sentencing range, Cervantes-Chavez' circumstances did not justify any further variance. See Sept. 17, 2014 Tr. at 24:11-15 (Court). The Court imposed a sentence at the bottom of the varied Guidelines range, 37-months imprisonment, and, after verifying with the USPO that it had discretion to do so, declined to impose an period of supervised release. See Sept. 17, 2014 Tr. at 24:19-25:1 (Court, Probation Officer).
In United States v. Booker, the Supreme Court severed the mandatory provisions from the Sentencing Reform Act, Pub.L. No. 98-473, 98 Stat. 1976, thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Act intact, including 18 U.S.C. § 3553: "Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Congress has directed sentencing courts to impose a sentence "sufficient, but not greater than necessary" to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. . . .
18 U.S.C. § 3553(a)(2)(A)-(D).
18 U.S.C. § 3551. To achieve these purposes, 18 U.S.C. § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the nature of the offense and the defendant's character; (iii) the available sentences; (iv) a policy favoring uniformity in sentences for defendants who commit similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
Although the Guidelines ranges are no longer mandatory, both the Supreme Court and the United States Court of Appeals for the Tenth Circuit have clarified
The Tenth Circuit has "joined a number of other circuits in holding that a sentence within the applicable Guidelines range is presumptively reasonable." United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir.2006). This presumption, however, is an appellate presumption, and not one that the trial court can or should apply. See Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456; Gall v. United States, 552 U.S. 38, 46-47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Kimbrough v. United States, 552 U.S. 85, 90-91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Instead, the trial court must undertake the § 3553(a) balancing of factors without any presumption in favor of the advisory guideline sentence. See Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456; Gall v. United States, 552 U.S. at 46-47, 128 S.Ct. 586; Kimbrough v. United States, 552 U.S. at 90-91, 128 S.Ct. 558.
While the Supreme Court's decision in United States v. Booker has given the sentencing court discretion that it did not have earlier, the sentencing court's first task remains to accurately and correctly determine the advisory-guideline sentence. Thus, before the sentencing court takes up a defendant's Booker arguments, the sentencing court must first determine whether the defendant is entitled to downward departures. The sentencing court may, however, also use these same departure factors in the Booker calculus, even if the court does not grant a downward departure.
United States v. Apodaca-Leyva, No. CR 07-1479 JB, 2008 WL 2229550, at *6 (D.N.M. Feb. 13, 2008) (Browning, J.).
In calculating an appropriate sentence, the Guidelines consider a defendant's "offense of conviction and all relevant conduct under [U.S.S.G.] § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context." U.S.S.G. § 1B1.1, cmt. 1(H). In United States v. Booker, the Supreme Court noted:
543 U.S. at 250-51, 125 S.Ct. 738 (emphasis in original)(quoting 18 U.S.C. § 1951(a)). The Supreme Court's reasoning in United States v. Booker suggests that the consideration of real conduct is necessary to effectuate Congress' purpose in enacting the guidelines.
Section 1B1.3 provides that the base offense level under the guidelines "shall be determined" based on the following:
U.S.S.G. § 1B1.3(a)(1)-(4). The court may consider, as relevant conduct, actions that have not resulted in a conviction. Pursuant to the commentary to U.S.S.G. § 6A1.3, evidentiary standards lower than beyond a reasonable doubt are permitted to show relevant conduct. The court may rely upon reliable hearsay, so long as the evidence meets the preponderance-of-the-evidence standard. See United States v. Vigil, 476 F.Supp.2d 1231, 1245 (D.N.M. 2007) (Browning J.). Accord United States v. Schmidt, 353 Fed.Appx. 132, 135 (10th Cir.2009) (unpublished)
Supreme Court precedent on relevant conduct comes primarily from two cases: Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), and United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). In Witte v. United States, the Supreme Court upheld the use of uncharged conduct at sentencing against a double jeopardy challenge. The defendant in Witte v. United States had been involved in an unsuccessful 1990 attempt to import marihuana and cocaine into the United States, and in a 1991 attempt to import marihuana. See 515 U.S. at 392-93, 115 S.Ct. 2199. In March, 1991, a federal grand jury indicted the defendant for attempting to possess marihuana with intent to distribute in association with the defendant's latter attempt to import narcotics. See 515 U.S. at 392-93, 115 S.Ct. 2199. At sentencing, the district court concluded that, because the 1990 attempt was part of the continuing conspiracy, it was relevant conduct under U.S.S.G. § 1B1.3, and therefore calculated the defendant's base offense level based on the aggregate amount of drugs involved in both the 1990 and 1991 episodes. See 515 U.S. at 394, 115 S.Ct. 2199.
In September, 1992, a second federal grand jury indicted the defendant for conspiring and attempting to import cocaine in association with the 1990 activities. See 515 U.S. at 392-93, 115 S.Ct. 2199. The defendant moved to dismiss the indictment, arguing that he had already been punished for the cocaine offenses, because the district court had considered those offenses relevant conduct at the sentencing for the 1991 marihuana offense. See 515 U.S. at 395, 115 S.Ct. 2199. The district court agreed and dismissed the indictment, holding that punishment for the cocaine offenses would violate the prohibition against multiple punishments in the Double Jeopardy Clause of the Fifth Amendment to the Constitution. See 515 U.S. at 395, 115 S.Ct. 2199. The United States Court of Appeals for the Fifth Circuit reversed the district court and held that "the use of relevant conduct to increase the punishment of a charged offense does not punish the offender for the relevant conduct." United States v. Wittie, 25 F.3d 250, 258 (5th Cir.1994). In reaching this holding, the Fifth Circuit acknowledged that its conclusion was contrary to other United States Courts of Appeals, including the Tenth Circuit, to have previously considered this question. See United States v. Wittie, 25 F.3d at 255 n. 19 (citing United States v. Koonce, 945 F.2d 1145 (10th Cir.1991)).
The Supreme Court granted certiorari to resolve the conflict between the circuits and affirmed the Fifth Circuit. See 515 U.S. at 395, 115 S.Ct. 2199. In finding that the district court's consideration of the defendant's relevant conduct did not punish the defendant for that conduct, the Supreme Court concluded that "consideration of information about the defendant's character and conduct at sentencing does not result in `punishment' for any offense other than the one of which the defendant was convicted." 515 U.S. at 401, 115 S.Ct. 2199. The Supreme Court reasoned that sentencing courts had always considered relevant conduct and "the fact that the sentencing process has become more transparent under the Guidelines . . . does not mean that the defendant is now being punished for uncharged relevant conduct
In United States v. Watts, the Supreme Court, in a per curiam opinion, relied upon Witte v. United States' holding and upheld, against a double jeopardy challenge, a sentencing judge's use of conduct for which the defendant had been acquitted. See United States v. Watts, 519 U.S. at 149, 117 S.Ct. 633. In reaching its result, the Supreme Court noted that its conclusion was in accord with every Court of Appeals other than the United States Court of Appeals for the Ninth Circuit, and that each Court of Appeals allowed sentencing courts to consider conduct for which the defendant had been acquitted, provided that the United States establishes that conduct by a preponderance of the evidence. See United States v. Watts, 519 U.S. at 149, 117 S.Ct. 633 (citing, e.g., United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir.1991)). The Supreme Court began its analysis in United States v. Watts with 18 U.S.C. § 3661: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661. See United States v. Watts, 519 U.S. at 151, 117 S.Ct. 633. According to the Supreme Court, 18 U.S.C. § 3661 embodies the codification of "the longstanding principle that sentencing courts have broad discretion to consider various kinds of information" and that "the Guidelines did not alter this aspect of the sentencing court's discretion." United States v. Watts, 519 U.S. at 151-52, 117 S.Ct. 633.
Tenth Circuit case law adheres closely to the Supreme Court's holdings in Witte v. United States and United States v. Watts. See United States v. Andrews, 447 F.3d 806, 810 (10th Cir.2006) (applying Witte v. United States' holding to affirm that a career offender enhancement does not violate the Double Jeopardy Clause of the Fifth Amendment). In United States v. Banda, 168 Fed.Appx. 284 (10th Cir. 2006) (unpublished), the Tenth Circuit rejected a defendant's argument that it was "structural error" for a district court to find sentencing factors "by a preponderance of the evidence rather than the jury applying a beyond-a-reasonable-doubt standard." 168 Fed.Appx. at 290. The Tenth Circuit explained that "`[i]t is now universally accepted that judge-found facts by themselves do not violate the Sixth Amendment. Instead, the constitutional error was the court's reliance on judge-found facts to enhance the defendant's sentence mandatorily.'"
In United States v. Coleman, the defendant, Troy Coleman, appealed the district court's enhancement of his sentence for firearms possession after he was convicted of conspiracy to possess and possession of a controlled substance with intent to distribute, but was acquitted of using or carrying a firearm during and in relation to a drug trafficking crime. See 947 F.2d at 1428. The Tenth Circuit acknowledged that courts had taken various positions on whether a sentence may be enhanced for firearms possession despite a defendant's acquittal of firearms charges. See United States v. Coleman, 947 F.2d at 1428-29 (citing United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990) ("[A]n acquittal on a firearms carrying charge leaves ample room for a district court to find by the preponderance of the evidence that the weapon was possessed during the drug offense."); United States v. Rodriguez, 741 F.Supp. 12, 13-14 (D.D.C.1990) (refusing to apply 2-level enhancement for firearms possession, because "[t]o add at least 27 months to the sentence for a charge of which the defendant was found not guilty violates the constitutional principle of due process and the ban against double jeopardy")).
Without discussing the standard of proof a sentencing court should use to make factual findings, the Tenth Circuit held that the district court did not err in enhancing Coleman's sentence for possession of a firearm. See United States v. Coleman, 947 F.2d at 1429. The Tenth Circuit based its conclusion on evidence that: (i) two weapons had been located at the arrest scene; (ii) the weapons were handled at will by individuals who lived at the house; and (iii) the weapons were kept for the protection of conspiracy participants and the narcotics involved. See 947 F.2d at 1429. The Tenth Circuit summarized that, in reviewing federal case law, it found "persuasive the decisions that have allowed a sentencing court to consider trial evidence that was applicable to a charge upon which the defendant was acquitted." 947 F.2d at 1429.
In United States v. Washington, 11 F.3d 1510 (10th Cir.1993), the defendant argued that the United States should prove drug quantities used as relevant conduct to establish a defendant's offense level by clear-and-convincing evidence rather than by a preponderance of the evidence. See 11 F.3d at 1512. The defendant objected to his sentencing, because the drug quantity that the district court considered as relevant conduct, and which the court found by a preponderance of the evidence, increased his Guidelines sentencing range from 210-262 months to life. The defendant argued "that because the additional drug quantities effectively resulted in a life sentence a higher standard of proof should be required."
After United States v. Booker, the sentencing guideline ranges are now advisory
Congress has directed sentencing courts to impose a sentence "sufficient, but not greater than necessary" to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):
18 U.S.C. § 3553(a)(2)(A)-(D). Section 3553(a) also directs sentencing courts to consider: (i) the nature of the offense and the defendant's character; (ii) the available sentences; (iii) the sentencing guidelines and policy statements that the Sentencing Commission has promulgated; (iv) a policy favoring uniformity in sentences for defendants who commit similar crimes; and (v) the need to provide restitution to
In Kimbrough v. United States, the Supreme Court stated that, in the ordinary case, "the Commission's recommendation of a sentencing range will `reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives.'" 552 U.S. at 89, 128 S.Ct. 558 (quoting Rita v. United States, 551 U.S. at 350, 127 S.Ct. 2456). The Supreme Court recognized, however, that the sentencing judge is "in a superior position to find facts and judge their import under § 3553(a) in each particular case." 552 U.S. at 89, 128 S.Ct. 558. Applying § 3553(a)'s factors, the Court has found that the case of an illegal immigrant who re-enters the United States so as to be able to provide for his two children and two siblings was not materially differentiated from other re-entry cases, and thus, no variance from the guidelines sentence was warranted. See United States v. Almendares-Soto, No. CR 10-1922 JB, 2010 WL 5476767, at *12 (D.N.M. Dec. 14, 2010) (Browning, J.). On the other hand, in United States v. Jager, No. CR 10-1531 JB, 2011 WL 831279 (D.N.M. Feb. 17, 2011) (Browning, J.), although Jager's military service was not present to an unusual degree and thus did not warrant a departure, the Court found that a variance was appropriate, because Jager's military service was "superior and uniformly outstanding," as Jager appeared to have been "trustworthy[ ] and dedicated, and he served with distinction." 2011 WL 831279, at *14.
Cervantes-Chavez has lodged five objections to the PSR, the first three of which the Court will overrule and the last two of which the Court will sustain: (i) that the Court should not apply the cross-reference provision but should instead calculate his offense level fully under the illegal alien-in-possession guideline; (ii) that, even if the Court does cross reference to the drug-possession guideline, it should apply a base offense level of 22, which reflects the 79.38 kilograms of marihuana actually discovered, and not a base offense level of 24, which would reflect the 99.54-kilogram figure that includes the addition of a drug-weight equivalent of the $19,652.00 in cash discovered at the scene; (iii) that the Court should not apply the 2-level enhancement for possessing a dangerous weapon, presumably because that would constitute double-counting with his crime of conviction; (iv) that the Court should not apply the 2-level enhancement for being an "organizer, leader, manager, or supervisor," both because it reflects his role in a crime other than his crime of conviction and because he does not satisfy the factual requirements of the standard; and (v) that the Court should depart or vary downward to reflect the more-lenient Guidelines which have been approved but have not yet come into effect. The Court will reject Cervantes-Chavez' argument on (i) and will cross reference to the drugpossession guideline. Cross references do not violate a defendant's Sixth Amendment rights, as the Court has previously explained in United States v. Sangiovanni, No. CR 10-3238 JB, 2014 WL 4347131 (D.N.M. Aug. 29, 2014) (Browning, J.). The Court will likewise reject Cervantes-Chavez' argument on (ii) and allow the conversion of the money found at the scene to its drug-weight equivalent, as there is sufficient evidence—from the fact that an enormous quantity of money, $19,000, was found, in cash, in a container in the same shed in which the marihuana was stowed—that the money is "attributable to drug sales" as United States v. Rios, 22 F.3d 1024, 1027-28 (10th Cir.1994) (Baldock, J.), requires. The Court will also reject Cervantes-Chavez' argument on (iii) and allow
The Court agrees with Cervantes-Chavez' argument on (iv) and will not apply the 2-level enhancement for aggravating role, because there is insufficient evidence to establish that Cervantes-Chavez was an "organizer, leader, manager, or supervisor of one or more other participants" as U.S.S.G. § 3B1.1 cmt. 2 (emphasis added) requires. Although the Court can apply a departure—not an enhancement—to a defendant who merely "exercised management responsibility over the property, assets, or activities of a criminal organization," the case must be outside the heartland to warrant a departure. Merely temporarily holding onto drugs and money—necessary instruments of the drug trade whose handling is by no means limited to organizational higher-ups—does not establish that this case is outside the heartland. See United States v. Anderson, 189 F.3d 1201, 1212 (10th Cir.1999). There is no evidence here that Cervantes-Chavez organized the activities of other members of a criminal organization, nor that he had anything other than temporary custody of the necessary ingredients of a drug transaction: money and drugs.
The Court could, however, apply the role adjustment to Cervantes-Chavez even though the crime of which he was convicted is not the crime that he allegedly organized, led, managed, or supervised, because the commentary to U.S.S.G. § 3B1.1 makes it clear multiple times that all relevant conduct is considered, and does not limit—as some other guidelines do—the Court to facts that "the offense of conviction establishes." E.g., U.S.S.G. § 2D1.1(a)(1)-(4). Additionally, the nature of criminal organizations is that they rarely violate only one statute of the criminal code. It is not clear how the Court could delineate and enforce a rule that limited role adjustments strictly to organizations based on the crime of conviction and not on other crimes that the defendant committed. Last, regarding Cervantes-Chavez' argument on (v), the Court is aware of the impending changes to the Guidelines and will grant Cervantes-Chavez a downward variance so that his sentence is equal to that which he would receive under the impending Guidelines.
The Court will cross reference from the guideline applicable to Cervantes-Chavez' crime of conviction—possessing a firearm as an illegal alien—to the drug-possession guideline, because: (i) Cervantes-Chavez' relevant conduct constitutes illegal drug possession with intent to distribute; (ii) that being the case, the Guidelines demand the cross reference; and (iii) cross referencing does not violate Cervantes-Chavez' Sixth Amendment rights. The Court addressed issues (ii) and (iii) in United States v. Sangiovanni, in which the Court held that it would allow a cross reference from U.S.S.G. § 2K2.1—the same guideline applicable to Cervantes-Chavez—to the kidnapping guideline, U.S.S.G. § 2A4.1. See 2014 WL 4347131, at *22-26. The Court ultimately did not cross reference to the kidnapping guideline, because Sangiovanni's relevant conduct did not satisfy the definition of kidnapping in either the federal or New Mexico statute, but it made clear that such a cross reference would have been proper if Sangiovanni's conduct had met the definition of kidnapping. See 2014 WL 4347131, at *26-29. The Court issued
The only remaining question is whether Cervantes-Chavez' relevant conduct
The Court will convert the $19,652.00 cash found at the scene of the crime to its drugweight equivalent of 25.4 kilograms (fifty-six pounds) of marihuana, because: (i) it is settled law in the Tenth Circuit that drug proceeds can be converted to their drug-weight equivalent; (ii) there is sufficient evidence to conclude that the $19,000.00 found, in cash, in the same shed as seventy-five pounds of marihuana, "is attributable to drug sales," United States v. Rios, 22 F.3d at 1028; and (iii) there is sufficient evidence to support the $350.00/lb. conversion factor that the USPO proposes. A district court's power to convert drug money to its drug-weight equivalent comes from the commentary to the drug-possession guideline:
U.S.S.G. § 2D1.1 cmt. 5. The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, clarified that districts judges may convert drug proceeds to drug weight under this provision:
United States v. Rios, 22 F.3d at 1027-28. See also United States v. Hinson, 585 F.3d 1328, 1341 (10th Cir.2009) (Ebel, J.); United States v. Jarvi, 537 F.3d 1256, 1263 (10th Cir.2008) (McConnell, J.).
Judge Baldock's requirement that the drug sales be part of "the same course of
Last, the Court finds that there is sufficient evidence to support the USPO's $350.00/lb. conversion factor. The Court is entitled to accept facts that the USPO proposes in the PSR when no one objects to them, see United States v. Carrasco-Salazar, 494 F.3d 1270 (10th Cir.2007), and Cervantes-Chavez has not objected to the conversion factor, see supra note 1, at 4. Even putting aside the USPO's representation, however, the United States has independently adduced evidence in the form of testimony from Barahona—which Cervantes-Chavez has not challenged—supporting the $350.00/lb. conversion factor. See Sept. 12, 2014 Tr. at Sept. 12, 2014 Tr. at 21:14-22:4 (Wang, Barahona).
The Court will apply U.S.S.G. § 2D1.1(b)(1)'s 2-level enhancement for possessing a dangerous weapon. That Cervantes-Chavez' conduct satisfies the factual requirements for the enhancement is not in dispute: he pled guilty to a crime that includes, as one of its elements, the possession of a firearm. The only colorable argument Cervantes-Chavez can raise is that, because the facts that trigger the Guidelines enhancement were all necessary to his conviction, using them twice in this fashion constitutes impermissible double-counting. The Court has considered this argument before, in the context of a defendant convicted of possessing a firearm as a felon and facing a cross reference to the kidnapping guideline, which, like the drug-possession guideline, contains a firearm enhancement.
The Court notes that enhancing a conviction for being a felon in possession of a firearm with an enhancement
United States v. Sangiovanni, 2014 WL 4347131, at *4 n. 5 (emphasis added).
The Court stands by this analysis and will add that, although the Tenth Circuit does not appear to have addressed this issue, the United States Courts of Appeals for the Second, Fifth, and Eleventh Circuits have. See United States v. Webb, 665 F.3d 1380 (11th Cir.2012) (per curiam); United States v. Gonzales, 996 F.2d 88, 91-94 (5th Cir.1993) (Garwood, J.) (rejecting both a double-counting and a Double-Jeopardy argument where a district court cross referenced from a conviction for possessing a firearm as a felon to the kidnapping guideline, and applied a 4-level enhancement using or possessing a firearm in connection with the kidnapping); United States v. Patterson, 947 F.2d 635, 638 (2d Cir.1991) (Newman, J.) ("The cross-reference from the gun guideline ultimately to the drug guideline initially directs the sentencing judge to the guideline for conspiracies and attempts, § 2X1.1, which includes any adjustments `for any intended offense conduct that can be established with reasonable certainty.' . . . [I]t was correct to add the two-level gun enhancement. . . .").
In United States v. Webb—the most recent and most thoroughly reasoned of the three—the defendant was convicted under the same statute as Cervantes-Chavez.
Importantly, the guidelines instruct the court to apply § 2D1.1 in its entirety, which included any enhancements. As the guidelines explain, "[a] cross reference. . . refers to the entire offense guideline (i.e., the base offense level, specific offense characteristics, cross references, and special instructions)." U.S.S.G. § 1B1.5(a). In fact, as an example, the guidelines state: "if a defendant convicted of possession of a firearm by a felon, to which § 2K2.1 applies, is found to have possessed that firearm during commission of a series of offenses, the cross reference at § 2K2.1(c) is applied to the offense resulting in the greatest offense level." U.S.S.G. § 1B1.5, cmt. 3. Thus, the Sentencing Commission intended that a defendant would be subject to a firearm enhancement under the facts before us here.
The commentary to § 2K2.1 confirms this application of the firearm enhancement; the Commission recognized that a firearm could potentially enable other offenses, such as drug crimes, and the cross-reference provision enabled courts to take this into account. See U.S.S.G. § 2K2.1, cmt. 14(A), (C). Additionally, the guidelines specifically instruct courts to take into consideration all relevant conduct when calculating the guideline range. U.S.S.G. § 1B1.3. See United States v. Williams, 431 F.3d 767, 772-73 (11th Cir.2005) (explaining that "cross-referenced conduct must fall under the definitions of relevant conduct found in § 1B1.3"). Here, Webb possessed a firearm while attempting to buy half a kilogram of cocaine. We cannot say that the firearm possession was irrelevant to the drug sale. See United States v. Poole, 878 F.2d 1389, 1393-94 (11th Cir.1989) (discussing the connection between guns and drugs).
The Commission's intent is further demonstrated by other guideline sections in which the Commission chose to include language preventing double counting. United States v. Perez, 366 F.3d 1178, 1182-83 (11th Cir.2004) (explaining that we presume the inclusion or exclusion of terms is purposeful and intentional); United States v. Brown, 332 F.3d 1341, 1346 (11th Cir.2003) (explaining that the Sentencing Commission adopted Amendment 599 to avoid double counting in § 2K2.1(b)(5)). Thus, had the Commission not intended the § 2D1.1(b)(1) enhancement to apply to a defendant like Webb, it would have explicitly said so.
We have long approved of the sentencing scheme that subjects a defendant who possessed a firearm during another offense to a lengthier sentence than a defendant who merely possessed
United States v. Webb, 665 F.3d at 1382-83. The Court agrees with the Eleventh Circuit's logic and will accordingly enhance Cervantes-Chavez' sentence 2 levels pursuant to § 2D1.1(b)(1) for his possession of a dangerous weapon.
The Court will not increase Cervantes-Chavez' sentence under U.S.S.G. § 3B1.1. This question can be split into two parts: (i) whether § 3B1.1 is applicable, i.e., whether the Court can apply the guideline when Cervantes-Chavez' crime of conviction is almost certainly not itself the subject of any collective criminal activity; and (ii) whether § 3B1.1 applies, i.e., whether, assuming the Court can apply the guideline on the basis of Cervantes-Chavez' role in a criminal drug organization, he factually qualifies for the enhancement. The Court answers yes to the first question and no to the second. Last, the Court may depart upwards under § 3B1.1, even if the defendant did not organize or supervise other participants, if he nonetheless exercised management responsibility in a criminal organization. The Court concludes, however, that Cervantes-Chavez' level of management responsibility is not outside the heartland of cases already covered by the substantive guideline for possessing 80-100 kilograms of marihuana with intent to sell it, and, thus, a departure is unwarranted.
The Court may apply a role enhancement under § 3B1.1 if it is determined from Cervantes-Chavez' relevant conduct that he was an organizer, leader, manager, or supervisor of any criminal organization, whether that criminal organization's focus was drug distribution or the possession of firearms by illegal aliens — the former being more likely than the latter. Before 1990, part 3B of the Guidelines opened as follows:
U.S.S.G. Part 3B (emphasis in original).
Although § 3B1.1's subsections refer to being an organizer, etc., "of a criminal activity," with subsection (c) going even further — permitting the enhancement whenever a defendant was an organizer, etc., "in any criminal activity" — the title of the part and its introductory commentary refer to the defendant's role in "the offense," which implies that the district court should consider only the offense of conviction. Courts came out different ways on this issue, with the United States Courts of Appeals for the Third, Seventh, Ninth, Tenth, Eleventh, and District of Columbia Circuits holding that the guideline could be applied solely based upon the crime of conviction, see United States v. Murillo, 933 F.2d 195, 199 (3d Cir.1991) (contrasting the pre- and post-1990 interpretations of § 3B1.1); United States v. Tetzlaff, 896 F.2d 1071, 1074 (7th Cir.1990); United States v. Streeter, 907 F.2d 781, 792 n. 4 (8th Cir.1990); United States v. Zweber, 913 F.2d 705, 709 (9th Cir.1990); United States v. Pettit, 903 F.2d 1336, 1341 (10th Cir.1990); United States v. De La Rosa, 922 F.2d 675, 680 (11th Cir.1991); United States v. Williams, 891 F.2d 921, 925 (D.C.Cir.1989), the United States Court of Appeal for the Fourth Circuit holding that district courts could consider all relevant conduct in applying role adjustments, see United States v. Fells, 920 F.2d 1179, 1184-85 (4th Cir.1990), and the Fifth Circuit adopting a hybrid position in which district courts could consider conduct "anchored to the transaction leading to the conviction," United States v. Barbontin, 907 F.2d 1494, 1498 (5th Cir.1990).
In 1990, however, the Commission amended the introductory commentary to part 3B, leaving the actual guideline unchanged. See U.S.S.G. App'x C, amend. 345. Now, in between the first and second sentences in the above-quoted, italicized commentary, is the following sentence: "The determination of a defendant's role in the offense is to be made on the basis of all conduct within the scope of § 1B1.3 (Relevant Conduct), i.e., all conduct included under § 1B1.3(a)(1)-(4), and not solely on the basis of elements and acts cited in the count of conviction." U.S.S.G. Part 3B introductory commentary (emphasis omitted). Every Court of Appeals — other than the Fourth Circuit, which already considered all relevant conduct in applying role adjustments — performed an abrupt about-face and now allows a broad inquiry into all relevant conduct when applying role adjustments. See United States v. Laboy, 351 F.3d 578, 585-86 (1st Cir.2003); United States v. Murillo, 933 F.2d 195, 199 (3d
United States v. Saucedo, 950 F.2d at 1513 n. 8.
In light of the 1990 amendment to part 3B's introductory commentary and the case law that interprets it, the Court may consider Cervantes-Chavez' role in — to quote the guideline itself — "any criminal activity" in which Cervantes-Chavez engaged, provided that it is relevant conduct. U.S.S.G. § 3B1.1(c). See supra note 9, at
The Court will not apply the USPO's suggested enhancement for being
The United States had ample opportunity to present evidence about how these organizations work, and it had the chance to elicit testimony — from two officers with experience dealing with Mexican drug organizations — that Cervantes-Chavez would have to have had other individuals working for him, but they did not do so. In fact, no single, identifiable individual has been proposed to the Court as someone whom Cervantes-Chavez organizes, leads, manages, or supervises — other than perhaps the CI, who, as far as the Court can tell, simply delivered drugs to Cervantes-Chavez at irregular intervals and helped him unload it from the truck. There is also an important piece of circumstantial evidence in Cervantes-Chavez' favor: he has no criminal record. See PSR ¶¶ 37-42, at 7-8. The Court thinks it unlikely that Cervantes-Chavez got to be a higher-up in a large-scale drug organization in the United States without ever picking up a drugrelated arrest along the way. If Cervantes-Chavez had prior convictions for drug-related activity, and the relevant conduct for those convictions established that he led other members of a larger organization, then the Court could — even though the prior convictions would not be relevant
An upward departure may be warranted under § 3B1.1 comment 2, even if the defendant did not organize or supervise other participants, if he exercised management responsibility over a criminal organization's property or assets. Such a departure applies only to cases that are outside the heartland contemplated by the guideline of the substantive offense, however, and there is insufficient evidence for the Court to find that Cervantes-Chavez' exercised managerial responsibility beyond that typically exercised by a defendant sentenced under U.S.S.G. § 2D1.1(c)(8). Section 3B1.1's commentary provides that
U.S.S.G. 3B1.1 cmt. 2. The Court must determine whether the commentary's second sentence refers to § 3B1.1 or is a tangential reference to a departure found in another guideline. This distinction matters: adjustments,
The Court concludes that the upward departure provided in § 3B1.1 comment two is applicable only when the Defendant's level of managerial responsibility is outside the heartland that the guidelines for the substantive offense contemplates. The Court finds that Cervantes-Chavez' conduct is not out of the ordinary for defendants sentenced under § 2D1.1(c)(8), which applies to defendants who possess with intent to distribute 80-100 kilograms of marihuana. The Court will first define the legal standard and then apply it to Cervantes-Chavez.
Although the Tenth Circuit has acknowledged the upward departure language in
In United States v. Valdez-Arieta, the defendant pled guilty to conspiracy to possess with intent to distribute and distribution of illegal drugs. See 127 F.3d at 1269. The defendant distributed cocaine, methamphetamine, and marihuana with a partner. See 127 F.3d at 1269. The district court enhanced the defendant's offense level by 2 levels pursuant to U.S.S.G. § 3B1.1(c). See United States v. Valdez-Arieta, 127 F.3d at 1269. The district court found that the role adjustment "accurately reflects the defendant's 50/50 partnership with [his co-conspirator]." 127 F.3d at 1270. The district court also found that the defendant "played a substantial role in organizing the acquiring of these drugs on a number of occasions." 127 F.3d at 1269. The defendant argued that there was no evidence that he exercised any control over other parties to the conspiracy, and that he could not have exercised control over his coconspirator because they acted together as joint partners. See 127 F.3d at 1270. The Tenth Circuit noted that the United States did not prove that the defendant exercised control over his co-conspirator or over subordinates. See 127 F.3d at 1270. The Tenth Circuit held, however, that an organizer is not required to exercise control over others to qualify for an enhancement under § 3B1.1(c). See United States v. Valdez-Arieta, 127 F.3d at 1270. The Tenth Circuit, looking to comment 2, concluded that control is not a necessary element of an organizer under § 3B1.1(c). See United States v. Valdez-Arieta, 127 F.3d at 1270-1271. In other words, a defendant can be the organizer of someone over whom he does not have control. See United States v. Valdez-Arieta, 127 F.3d at 1270-71. The Tenth Circuit made it clear that a coconspirator cannot shield himself from a sentence enhancement because he had an equal fifty percent participation in the criminal organization. See United States v. Valdez-Arieta, 127 F.3d at 1272.
The Tenth Circuit acknowledged the upward departure language in comment 2 and stated: "Such language reveals an intent to allow an increased sentence under § 3B1.1 even when Defendant did not control subordinates. We rely on `pertinent policy' statements issued by the Sentencing Commission in `determining the particular sentence to be imposed' under the guidelines." United States v. Valdez-Arieta, 127 F.3d at 1271 (quoting language from 18 U.S.C. § 3553(a)(1997)). Although the Tenth Circuit referenced comment 2, it did not decide if the § 3B1.1 upward departure applies only to cases that are outside the heartland of cases conceived by the guidelines. See United States v. Valdez-Arieta, 127 F.3d at 1267-1273. The Tenth Circuit used comment 2 to bolster its holding that the definition of
In United States v. Aptt, 354 F.3d 1269 (10th Cir.2004) (McConnell, J.), the Tenth Circuit discussed § 3B1.1 comment 2's departure provision as an alternative rationale that the district court could have used had the defendant made a timely objection. See 354 F.3d at 1277. The Tenth Circuit did not discuss the standard that district courts must follow when applying an upward departure under § 3B1.1. See United States v. Aptt, 354 F.3d at 1285-1288. The issue in United States v. Aptt was whether the district court erred in applying an enhancement under § 3B1.1(b). See 354 F.3d at 1285. The district court referred to the defendant as a "manager or supervisor of the activity," rather than a manager or supervisor of one or more participants. 354 F.3d at 1285. Comment 2, however, says that, "to qualify for an adjustment under [§ 3B1.1], the Defendant must have been the organizer, leader, manager, or supervisor of one or more other participants." U.S.S.G. § 3B1.1, cmt. 2. The Tenth Circuit found that the mere fact that the district court called the defendant a manager or supervisor of the activity, rather than a manager or supervisor of other participants, did not require reversal. See United States v. Aptt, 354 F.3d at 1287. There was evidence in the record that the defendant had supervised at least one participant. See 354 F.3d at 1286-1287. Furthermore, the defendant did not make a timely objection. See 354 F.3d at 1287. The Tenth Circuit noted that, if the defendant had made a timely objection to the alleged flaw in the district court's reasoning, the district court easily could have named specific participants in the fraud and money laundering that the defendant supervised. See 354 F.3d at 1287. Additionally, the district court could have made an equivalent departure based on the defendant's "management responsibility over the property, assets, or activities of a criminal organization." 354 F.3d at 1287 (quoting U.S.S.G. § 3B1.1, cmt. 2.). The Tenth Circuit did not, however, address the standard that the district court should apply if it were to make this departure. See 354 F.3d at 1287.
Although the Tenth Circuit has discussed the departure provision in § 3B1.1 comment 2, it has not determined whether a case must be outside the heartland for this provision to apply.
Section 3B1.1's commentary provides that
U.S.S.G. 3B1.1 cmt. 2. Upon first reading, the commentary appears to limit § 3B1.1's application to only those defendants who organize, lead, manage, or supervise other criminal participants. The second sentence's
Two guidelines, however, specifically forbid district courts from applying a departure based upon the role the defendant played in committing the offense, §§ 5K2.0 and 5H1.7. The first guideline is in part 5K, the Guidelines part covering departures generally:
U.S.S.G. § 5K2.0(d). The second guideline is in part 5H, the Guidelines part that specifies what characteristics of the offender the sentencing court can consider in crafting a sentence:
U.S.S.G. § 5H1.7.
The apparent discrepancy between § 3B1.1 comment 2 and §§ 5K2.0(d) and 5H1.7 is alleviated when the Guidelines are looked at as a whole. The Guidelines were amended in 1993 to add comment 2 to § 3B1.1. See U.S.S.G. App'x C, amend. 500. Comment 2 was added to clarify "the operation of this section and to resolve a split among the courts of appeals." U.S.S.G. App'x C, amend. 500. Sections 5K2.0 and 5H1.7, on the other hand, were added in 2003, when the Commission passed an emergency amendment in response to the directives of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, 117 Stat. 650 ("PROTECT Act"). See U.S.S.G. App'x C, amend. 651. Congress enacted the PROTECT Act, because it was concerned about district courts' increased use of downward departures. See United States Sentencing Commission, Report to the Congress: Downward Departures from the Federal Sentencing Guidelines (In Response to Section 401(m) of Public Law
In reading all of these sections together, the Court concludes that §§ 5K2.0 and 5H1.7 limit § 3B1.1 comment 2's departure in the following ways. First, the departure must be applied at the same point in the Guidelines sequence that a § 3B1.1 enhancement is normally applied — after the chapter 2 offense-level provisions but before the chapter 4 and 5 provisions.
That this departure provision is in a Guidelines part other than 5K is not unique. See U.S.S.G. App'x at 579-81 (indexing all the departure provisions in the guidelines). Departures of this sort occur regularly throughout the guidelines, and not just in chapter 5. This list of departure provisions contains over fifty instances where departures are provided for in the commentary notes of the various sections. That the departure in comment two of § 3B1.1 is included in this list provides further evidence that the departure standard applies for this provision.
The introductory commentary to the Guidelines lays out the departure standard. See U.S.S.G. § 1A1.4(b). It states, as part of the Guidelines' statutory mission, "[i]f ... a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range." U.S.S.G. § 1A1.4(b). In the introductory commentary, the policy statement regarding departures is as follows:
U.S.S.G. § 1A1.4(b).
The Guidelines require a case to be outside the heartland for it to be eligible for any departure. This includes the upward departure in § 3B1.1 comment 2.
For an upward departure to be warranted, the United States must prove that Cervantes-Chavez exercised management responsibility over the property, assets, or activities of a criminal organization above the level contemplated by § 2D1.1(c)(8) — the guideline for possession of 80-100 kilograms of marihuana with the intent to distribute. The Court finds that an upward departure is not warranted, because this case does not fall outside the heartland of cases that § 2D1.1(c)(8) contemplates.
The United States' witness, Grant, characterized Cervantes-Chavez' involvement as a "distribution hub," but Grant testified that he did not recover packaging materials, drug ledgers, or bank account information from Cervantes-Chavez' residence. Sept. 12, 2014 Tr. at 15:6-18:17 (Wang, Grant, Juarez, Court). The only information Grant had from the CI was that the CI delivered drugs to the house where Cervantes-Chavez was arrested. See Sept. 12, 2014 Tr. at 19:12-24 (Juarez, Grant). The United States' other witness, Barahona, admitted that he was not aware of anyone in particular that Cervantes-Chavez was responsible for supervising. See Sept. 12, 2014 Tr. at 26:1-13 (Juarez, Barahona, Wang, Court). All that the United States has proven in regards to Cervantes-Chavez' management over the property is that he was in possession of 79.38 kilograms of marihuana and $19,652.00 cash, and that he helped unload a truck full of marihuana. See Sept. 12, 2014 Tr. at 18:14-19 (Juarez, Barahona); Sept. 12, 2014 Tr. at 26:1-13 (Juarez, Barahona, Wang, Court). That, alone, is not enough to put this case outside the heartland and apply an upward departure under § 3B1.1.
Without more evidence of Cervantes-Chavez' managerial responsibility, it is hard to see how this case is outside the heartland or atypical of what the Commission contemplated for possession of 80-100 kilograms of marihuana. For this reason, the Court will not apply the 2-level upward departure under § 3B1.1.
The Court will vary Cervantes-Chavez' sentence down to the bottom of the Guidelines range that would apply if he were sentenced under the 2014 amendments to the Guidelines, which are currently awaiting congressional approval, and sentence him to 37-months imprisonment. Because the Court rejects the USPO's proposed 2-level role adjustment
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005). The Court finds that United States v. Schmidt, 353 Fed.Appx. 132 (10th Cir.2009) (unpublished), and United States v. Banda, 168 Fed.Appx. 284 (10th Cir.2006) (unpublished), both have persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.
United States v. Nolf, No. CR 10-1919-2 JB, 2014 WL 3377695, at *28 n. 22 (D.N.M. June 20, 2014) (Browning, J.).
The Supreme Court held in United States v. Booker that "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing," 543 U.S. at 264, 125 S.Ct. 738, but further expounded in Kimbrough v. United States that "courts may vary [from the Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines," 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (alteration in original)(internal quotation marks omitted). In theory, this freedom could mean that a district court may excise individual portions of the Guidelines along the way as it performs an otherwise by-the-book Guidelines analysis, end up with a sentence with built-in variances, and never even know what sentence a true, rigid Guidelines application would yield. In practice, however, appellate courts expect district courts to first obtain the true Guidelines' sentence range and circumscribe their United States v. Booker-granted authority to post-Guidelines analysis "variances." Irizarry v. United States, 553 U.S. 708, 710-16, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). A district court that attempts to vary from U.S.S.G. § 1B1.1's basic sequence most likely acts procedurally unreasonably. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (holding that a sentence is procedurally reasonable if "the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence" (emphasis added)).
United States v. Nolf, No. CR 10-1919-2, 2014 WL 3377695, at *20-21 (D.N.M. June 20, 2014) (Browning, J.) (emphasis in original).
United States v. Sangiovanni, 2014 WL 4347131, at *24-26 (emphasis in original).
United States v. Damato, 672 F.3d 832, 839-40 (10th Cir.2012) (Lucero, J.) (quoting U.S.S.G. § 1B1.3 cmt. 9(B)) (citations omitted). All three factors are present here: Cervantes-Chavez was committing the gun-possession offense and the drug offense at the same time; he possessed both items in the same place, his residence; and—the Court finds by a preponderance of the evidence—he committed the gun-possession offense to ensure his personal safety and otherwise aid in his continued commission of drug offenses.
