JAMES O. BROWNING, District Judge.
In a Plea Agreement, filed March 24, 2014 (Doc. 22)("Plea Agreement"), Barela admitted the following facts:
Plea Agreement ¶ 7, at 3.
During the search, NMSP agents observed hypodermic needles on the bathroom sink, which "contained a brown liquid, which the agents believed to be heroin." Presentence Investigation Report ¶ 11, at 4, disclosed June 5, 2014 ("PSR"). "On the side of the sink, agents noticed an open slide cellular telephone, several unused hypodermic needles with the caps removed, a scale with possible heroin residue, and a metal spoon with what appeared to be cocaine." PSR ¶ 11, at 4. The agents placed Barela under arrest; Barela "allowed the agents to search his residence after admitting he was dealing drugs." PSR ¶ 11, at 4.
PSR ¶ 12, at 4. The NMSP agents transported the items to the NMSP station, including ".25 ounces of a hard brown substance, that field tested positive for heroin; 97 needles that contained heroin totaling 27.35 milliliters; $1,876 in cash; six scales; and two firearms." PSR ¶ 13, at 4. Barela admitted to the NMSP agents that "he was dealing drugs." PSR ¶ 11, at 4.
On October 30, 2013, Barela was charged with: (i) possessing a substance containing a detectable amount of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count 1"); (ii) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) ("Count 2"); and (iii) possessing a firearm in furtherance of a drug
In the PSR, the United States Probation Office ("USPO") calculated Barela's base offense level at 20, under U.S.S.G. § 2K2.1, and applied a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6), for using or possessing any firearm in connection with another felony offense. See PSR ¶¶ 21-22, at 6. In support of this enhancement, the PSR states: "In this case, two firearms and 27.35 milliliters of heroin were found in the defendant's home. Based on this information, a four-level increase has been applied." PSR ¶ 22, at 6. The PSR notes a 2-level reduction pursuant to U.S.S.G. § 3E1.1(a) for accepting responsibility and a 1-level reduction pursuant to U.S.S.G. § 3E1.1(b) for timely notifying authorities of an intention to enter a guilty plea. See PSR ¶ 28-29, at 6. The PSR notes that Barela's total offense level is 22. See PSR ¶ 30, at 6. Based on prior convictions for distributing a controlled substance, for assaulting a household member, and for criminal damage to property, the PSR calculates a criminal history score of 4, which results in a criminal history category of III. See PSR ¶¶ 33-36, at 7-8. The PSR notes that the Guidelines imprisonment range for an offense level of 21 and a criminal history category of III is 46 to 57 months. See PSR ¶ 59.
Barela makes two objections to the PSR. First, Barela objects that the "amount of heroin is incorrect." Objections at 2. In his view, the "27.35 milliliters (27.35 grams), the amount of liquid recovered from the used syringes, as explained in a prior motion to continue, was not all heroin." Objections at 2. He explains that
Objections at 2. Barela contends that the "substance in the used hypodermic needles was not tested for the presence of human blood," and, thus, that the "amount of fluid in the syringes should not be used." Objections at 2. He asserts that only .25 ounces, or around seven grams, of heroin should be considered. See Objections at 2.
Second, Barela objects to the application of § 2K2.1(b)(6). See Objections at 2-5. Barela contends that "[d]rug trafficking offenses and drug possession offenses are not treated the same for purposes of Section 2K2.1(b)(6)," because application note 14(B) applies in drug trafficking offenses and indicates that the "firearm necessarily has the potential of facilitating another felony," while application note 14(A) applies in drug possession cases, and the Court must "determine whether the firearm facilitated, or had the potential of facilitating," the drug possession offense. Objections at 3. Because he asserts that the other felony is drug possession, and not drug trafficking, and because he was in his home, rather than out in public, he argues that "[t]here was absolutely no connection between the heroin Mr. Barela was preparing to use and the firearms that were in another room, in a closet." Objections at 3-4. He contends that his "possession
Responding to Barela's objection regarding the amount of heroin, the United States said that it "does not know the ratio of blood (if any) to heroin inside of the needles because laboratory analysis of the needles' content was not performed after Mr. Barela's guilty plea." Response to Defendant's Objection to the Presentence Report at 1 n. 1, filed June 26, 2014 (Doc. 29)("Response"). The United States states that, even if the Court assumes that Barela is correct about the amount of heroin, the 4-level "enhancement is nonetheless appropriate because of the other evidence that Defendant was selling drugs." Response at 1-2. The United States asserts that,
Response at 2. The United States contends that this "evidence of distribution, combined with the close proximity of the firearms to the drugs and paraphernalia," supports the 4-level enhancement. Response at 2.
The United States alternatively argues that the 4-level enhancement is appropriate, because Barela "possessed the firearms in connection with another felony offense: receiving stolen property with a value over $250," in violation of N.M. Stat. Ann. § 30-16-11. Response at 2. The United States contends that, "[a]pplying the same logic as with drug trafficking offenses, the possession of firearms facilitates the possession of stolen goods. Due to the illicit nature of the business, Defendant could hardly call the police if a customer or associate turned violent or decided to steal the goods." Response at 2 (citing United States v. Rogers, 594 F.3d 517, 522 (6th Cir.2010), cert. granted, judgment vacated, ___ U.S. ___, 131 S.Ct. 3018, 180 L.Ed.2d 842 (2011)).
The USPO disclosed two addendums to the PSR. In the first Addendum to the Presentence Report, disclosed July 1, 2014 ("1st Addendum"), the USPO "stands by the assessment" of the amount of heroin as it listed in the PSR, including the 27.35 milliliters, and also maintains that the 4-level enhancement under § 2K2.1(b)(6)(B) applies, because Barela "maintained a usable amount of heroin in his residence, where weapons were easily accessible." 1st Addendum at 1. In the Second Addendum to the Presentence Report, disclosed July 8, 2014 ("2d Addendum"), the USPO states that "there is no information to verify the type of substance in each of the needles" that were found at Barela's residence.2d Addendum at 1. The USPO notes that, while Barela used the needles to inject himself with heroin, the substance in the needles has not been confirmed to contain
The Court held a sentencing hearing on July 8, 2014. See Transcript of Hearing (taken July 8, 2014)("Tr.").
The United States argued that it is not relying on the possession of drugs offense for the firearm enhancement and that, regardless of what substance is in the needles, there is enough evidence to find that Barela distributed drugs, because he admitted to selling drugs and there were six scales, $1,876.00 in cash, five grams of heroin, a metal spoon, and some drug residue at his residence. See Tr. at 56:7-57:12 (Messec). The United States maintains that, in addition to Barela's own admission, there is sufficient evidence to find that he was selling drugs. See Tr. at 57:13-22 (Messec). The United States noted that, if the Court rejected its drug-distribution argument, it would fall back on its possession-of-stolen-property argument. See Tr. at 58:1-6 (Messec). It maintained that Barela was not employed, yet he had a large quantity of unopened, expensive goods at his residence. See Tr. at 58:7-21 (Messec). The United States argued that the firearms were kept in Barela's residence in case someone tried to steal the stolen goods, which meant that the firearms facilitated his possession of the goods. See Tr. at 58:22-59:9 (Messec).
The Court asked the United States about its statement in the Response that
The Court overruled Barela's objection to the amount of heroin in the syringes, because it is moot in light of the 2d Addendum. See Tr. at 64:18-25 (Court). The Court held that the 4-level adjustment applied, because there is sufficient evidence to find by a preponderance of the evidence that Barela distributed drugs and that Barela used the firearms in connection with the distribution of drugs. See Tr. at 68:9-70:8 (Court). The Court noted, however, that it could not find by a preponderance of the evidence that Barela possessed stolen goods. See Tr. at 70:9-14 (Court). The Court then sentenced Barela to 46-months imprisonment. See Tr. at 77:8-11 (Court).
In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, thus making the Guidelines sentencing ranges effectively advisory. See 543 U.S. at 245, 125 S.Ct. 738. 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. at 261, 125 S.Ct. 738.
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).
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 Tenth Circuit have clarified that, while the Guidelines ranges are one of several factors enumerated in 18 U.S.C.
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), overruled on other grounds by Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), as recognized in United States v. Zamora-Solorzano, 528 F.3d 1247, 1251 n. 3 (10th Cir.2008). 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. at 46-47, 128 S.Ct. 586; 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
United States v. Apodaca-Leyva, No. CR 07-1479 JB, 2008 WL 2229550, at *6 (D.N.M. Feb. 13, 2008)(Browning, J.). 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." Kimbrough v. United States, 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 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 the defendant'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 the defendant's military service was "superior and uniformly outstanding," as the defendant appeared to have
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court reaffirmed the principle that it is permissible for sentencing judges "to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing judgment within the range prescribed by statute." 530 U.S. at 481, 120 S.Ct. 2348. The Supreme Court cautioned, however, that the Constitution of the United States of America limits this discretion and that the Sixth Amendment requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court elaborated on its holding in Apprendi v. New Jersey, stating that the "statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted) (citations omitted)(internal quotation marks omitted). In United States v. Booker, the Supreme Court held that, because the sentencing guidelines are no longer mandatory, "Apprendi does not apply to the present advisory-Guidelines regime." United States v. Ray, 704 F.3d 1307, 1314 (10th Cir.2013). See United States v. Booker, 543 U.S. at 259, 125 S.Ct. 738 ("[W]ithout this provision [of the Guidelines statute] — namely, the provision that makes the relevant sentencing rules mandatory and imposes binding requirements on all sentencing judges — the statute falls outside the scope of Apprendi's requirement." (alterations omitted)(internal quotations marks omitted)). The Supreme Court has recently held that the requirements in Apprendi v. New Jersey apply to facts that increase a defendant's mandatory minimum sentence. Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013).
In United States v. Magallanez, 408 F.3d 672 (10th Cir.2005), the Tenth Circuit held that Blakely v. Washington and United States v. Booker did not change the district court's enhancement-findings analysis. See United States v. Magallanez, 408 F.3d at 684-85. United States v. Magallanez involves plain-error review of a drug sentence in which a jury found the defendant, Magallanez, guilty of conspiracy to possess with intent to distribute and to distribute methamphetamine. See 408 F.3d at 676. As part of its verdict, the jury, through a special interrogatory, attributed to the defendant 50-500 grams of methamphetamine; at sentencing, however, the judge — based on testimony of the various amounts that government witnesses indicated they had sold to the defendant — attributed 1200 grams of methamphetamine to the defendant and used that amount to increase his sentence under the Guidelines. See United States v. Magallanez, 408 F.3d at 682. The district court's findings increased the defendant's Guidelines sentencing range from 63 to 78 months to 121 to 151 months. See United States v. Magallanez, 408 F.3d at 682-83. The Tenth Circuit stated that, both before and after Congress' passage of the Sentencing Reform Act, "sentencing courts maintained the power to consider the broad context of a defendant's conduct, even when a court's view of the conduct conflicted with the jury's verdict." United States v. Magallanez, 408 F.3d at 684. Although United States v. Booker made
The Tenth Circuit, while "recognizing `strong arguments that relevant conduct causing a dramatic increase in sentence out to be subject to a higher standard of proof,'" has "long held that sentencing facts in the `ordinary case' need only be proven by a preponderance." United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir.2008)(quoting United States v. Washington, 11 F.3d 1510, 1516 (10th Cir.1993)).
United States v. Cervantes-Chavez, 59 F.Supp.3d 1295, 1315 (D.N.M.2014) (Browning, J.).
U.S.S.G. § 2K2.1(b)(6) provides a 4-level enhancement to a defendant's base offense level for a sentence under U.S.S.G. § 2K2.1 "if the defendant used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6). Application Note 14 to U.S.S.G. § 2K2.1 specifies that the use or possession is "in connection with" a different felony "if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense." U.S.S.G. § 2K2.1, Application Note 14(A). "The plain and commonly understood meaning of `facilitate' is to make easier." United States v. Marrufo, 661 F.3d 1204, 1207 (10th Cir.2011) (citing United States v. Gandy, 36 F.3d 912, 914 (10th Cir.1994) (recognizing that "facilitate" means "to make easier"); Black's Law Dictionary 668 (9th ed.2009)(defining "facilitate" as "[t]o make the commission of a crime easier")).
United States v. Marrufo, 661 F.3d at 1207-08.
The Tenth Circuit has held on several occasions that physical proximity between a weapon and narcotics can be sufficient to satisfy the requirements of U.S.S.G. § 2K2.1(b)(6). See, e.g., United States v.
The United States Court of Appeals for the Eighth Circuit has noted that, when a person ventures out into public with a firearm and even a small amount of drugs, "there are many ways in which the weapon can facilitate the drug offense and dangerously embolden the offender." United States v. Regans, 125 F.3d 685, 687 (8th Cir.1997). The Eighth Circuit has also held that a firearm facilitates or has the potential to facilitate felony-drug possession in the same manner as felony-drug trafficking — by protecting a defendant or his drugs. See United States v. Bell, 310 F.3d 604, 605-606 (8th Cir.2002)(per curiam). The Tenth Circuit reached a similar conclusion in an unpublished opinion. See United States v. Fent, 199 Fed.Appx. 724, 727 (10th Cir.2006)(unpublished)(holding that the enhancement applied where the defendant possessed a firearm in connection with possessing methamphetamine). In United States v. Fent, a deputy sheriff pulled the defendant over for speeding, and then arrested him after he failed to produce a driver's license or proof of insurance, and a database check of his name and social security number revealed his license was suspended. See 199 Fed. Appx. at 725-26. The deputy impounded the defendant's truck, and discovered a small amount of methamphetamine and a firearm in a black bag in the defendant's truck during an inventory search. See 199 Fed.Appx. at 726. The defendant was found guilty after a jury trial of being a felon in possession of a firearm, but was never charged with any drug offense. See 199 Fed.Appx. at 726. Nonetheless, the district court found, by a preponderance of the evidence, that the firearm was possessed in connection with felony possession of methamphetamine. See 199 Fed.Appx. at 727. As the district court noted, "`the availability of the gun in such close proximity to the methamphetamine was sufficient evidence of a connection between the firearm and the possession of methamphetamine, which is a felony offense in the state of Oklahoma.'" 199 Fed.Appx. at 727 (quoting with approval the district court). The Tenth Circuit affirmed. See 199 Fed.Appx. at 727.
There is no requirement that a certain amount of narcotics be recovered for the enhancement under U.S.S.G. § 2K2.1(b)(6) to apply. See United States v. Condren, 18 F.3d 1190, 1199 (5th Cir. 1994) (holding that the 4-level enhancement "may be based on any felony, including, as here, felony possession of a small amount of drugs"); United States v. Cunningham, No. CR 06-2493 JB, 2008 WL 6049940, at *8 (D.N.M. Oct. 29, 2008) (Browning, J.). Accordingly, courts have applied the 4-level enhancement in cases where small amounts of narcotics were recovered. See, e.g., United States v. Washington, 340 F.3d 222, 231 (5th Cir. 2003) (rejecting the defendant's argument that "the quantity of drugs seized was too
In United States v. Justice, 679 F.3d 1251 (10th Cir.2012), the Tenth Circuit stated that it agrees "with several other circuits that have held that possession of a firearm may facilitate an offense by emboldening the possessor to commit the offense." 679 F.3d at 1255. In that case, the defendant "was carrying methamphetamine on his person," the "firearms were within easy reach, and they were loaded"; thus, the Tenth Circuit concluded that "[a] reasonable person could find that the firearms gave him a sense of security emboldening him to venture from his home with drugs that someone might wish to take from him by force." 679 F.3d at 1255. The Tenth Circuit cautioned, however, that "emboldenment is not always present when firearms are near drugs." 679 F.3d at 1256 (citing United States v. Jeffries, 587 F.3d 690, 691-695 (5th Cir.2009) (rejecting the emboldenment theory when the defendant took a gun from another man after a violent altercation, got into his car, picked up his girlfriend, was stopped by the police almost immediately thereafter, and police found the gun on the driver's seat and a rock of cocaine on the floor behind the seat, because, even if the cocaine belonged to the defendant, the evidence was insufficient to establish that the gun emboldened him); United States v. West, 643 F.3d 102, 115-16 (3d Cir.2011)(rejecting application of emboldenment theory when marijuana found in glove compartment and revolver found in backpack in trunk of defendant's car); United States v. Smith, 535 F.3d 883, 886 (8th Cir.2008) (holding that emboldenment theory not applicable because defendant did not venture from home into public with the drugs or firearms)). The Tenth Circuit emphasized that the factual setting must support the emboldenment theory, but concluded that,
United States v. Justice, 679 F.3d at 1256.
An enhancement under § 2K2.1(b)(6) may be applied even though the felony in connection with which the firearm is possessed was not an offense for which the defendant was convicted. See United States v. Gambino-Zavala, 539 F.3d 1221, 1230 n. 3 (10th Cir.2008). In United States v. Magallanez, 408 F.3d 672 (10th Cir.2005), the Tenth Circuit held that, even after United States v. Booker, as long as the guidelines are considered advisory, facts relevant to sentencing still need be proved only by a preponderance of the evidence. See United States v. Magallanez, 408 F.3d at 684-85. See also United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir.2005)("Booker therefore does not render judicial fact-finding by a preponderance of the evidence per se unconstitutional.").
2012 WL 592422, at *6.
The Court will sustain the Objections in part and overrule them in part. There is insufficient evidence to find that the substance found in the ninety-seven syringes was only heroin, and, thus, the Court will not consider the 27.35 milliliters of liquid in the syringes in calculating the total amount of heroin. Based on Barela's admission, the scales, the .25 milliliters of heroin, and the drug paraphernalia, the Court finds by a preponderance of the evidence that Barela was trafficking drugs. Additionally, because Barela used the firearms in connection with the felony of trafficking drugs, the Court will apply the 4-level enhancement under § 2K2.1(b)(6) and will sentence Barela to 46-months imprisonment.
The Court will sustain Barela's objection to the amount of heroin listed in the PSR. While the PSR originally stated that the syringes found in Barela's residence contained 27.35 milliliters of heroin, see PSR ¶ 12, at 4, the USPO issued an addendum that stated that it is not confirmed that the 27.35 milliliters is only heroin, see 2d Addendum at 1. The United States has not tested the liquid in the syringes, and the United States has not insisted that the syringes contained only heroin. There is thus insufficient evidence to find by a preponderance of the evidence that the substance found in the syringes was purely heroin. The Court will accordingly sustain Barela's objection to the amount of heroin found in the syringes and will consider only the .25 ounces, or seven grams, of heroin that the NMSP agents field tested and confirmed to be heroin.
Section 2K2.1(b)(6) provides for a 4-level enhancement if the defendant
If Barela merely possessed the heroin and did not distribute it, the Court would sustain Barela's objection. Courts often look to whether a firearm emboldens the defendant to possess the drugs; this conclusion is more readily reached when the defendant is out in public with the drugs and the firearm. See United States v. Justice, 679 F.3d at 1255 (concluding that, when the defendant was carrying methamphetamine as well as a loaded firearm, "[a] reasonable person could find that the firearms gave him a sense of security emboldening him to venture from his home with drugs that someone might wish to take from him by force"). On the other hand, when the defendant is not in public, some courts have rejected the emboldenment theory. See United States v. Smith, 535 F.3d at 886 (rejecting emboldenment theory, because the defendant did not venture from his home into public with the drugs or firearms).
The Court does not think that the facts in this case demonstrate that Barela used or possessed the firearms, located in a bedroom closet, in connection with the offense of possessing heroin. That is, the firearm did not facilitate or have the potential of facilitating Barela's drug possession offense, because there is no evidence to indicate that the firearm emboldened Barela to possess the heroin in his house.
The United States argues that, instead of relying on the felony of drug possession, the Court should consider Barela's other felony offense to be drug trafficking. See Response at 1-2. From the PSR, the United States points to Barela's admission that he "admitt[ed] he was dealing drugs," PSR ¶ 11, at 4, that he had .25 ounces of a substance that field tested positive for heroin, see PSR ¶ 13, at 4, and that he had various drug paraphernalia in the closet where the firearms were located, including a box of hypodermic needles, three scales, two pill bottles, a cut off can bottom with heroin residue, and a plastic bag filled with change and other drug paraphernalia, see PSR ¶ 12, at 4. The United States also lists additional information in the Response supporting a finding that Barela was trafficking drugs, including his admission that he was selling the heroin that the agents found. See Response at 2 ("In a recorded conversation, one of the agents asked him if the heroin they had found was for `personal use or are you selling it?' Defendant responded: `Selling it.'"). At the hearing, Barela acknowledged that there is evidence that seems to indicate that he admitted to selling drugs, but Barela refused to
There is sufficient evidence to find that Barela's other felony offense is a drug-trafficking offense, thus supporting the application of the § 2K2.1(b)(6)(B) enhancement. Although the Court will exclude the 27.35 milliliters of liquid found in syringes, the Court will consider the .25 ounces of heroin, or roughly seven grams, that was field tested and to which Barela has not objected. This amount of heroin, together with Barela's admission that he was dealing drugs, the $1,876.00 in cash, the six scales, and the boxes of hypodermic needles, supports the conclusion that Barela's other offense is a drug trafficking. While Barela contends that some of the scales were broken and that a scale can be used by a drug user as well as a drug dealer, the number of scales in Barela's residence supports a finding that he was trafficking drugs and not merely using drugs. See United States v. Triana, 477 F.3d 1189, 1195 (10th Cir.2007) (stating that scales are "tools of the drug trade," which a jury could use to infer an intent to distribute); United States v. Fudge, 175 Fed.Appx. 694, 698 (6th Cir.2006) (unpublished)(referring to a digital scale as a "classic trapping[] of drug dealing"); United States v. Koons, 300 F.3d 985, 995 (8th Cir.2002) (noting that scales are evidence of drug dealing); United States v. Chavez, 10 Fed. Appx. 426, 427 (9th Cir.2001) (unpublished)(stating that scales are evidence that can support a finding of a conspiracy to distribute drugs); United States v. Boissoneault, 926 F.2d 230, 234 (2d Cir. 1991) (stating that scales are "paraphernalia usually possessed by drug dealers"). While the NMSP agents did not find large quantities of drugs in Barela's residence, the quantity that they found — excluding the 27.35 milliliters from the syringes — is still more heroin than was found in United States v. Pacheco, where the Court found that the defendant was trafficking drugs and where the Court applied § 2K2.1(b)(6)'s 4-level enhancement. See 2014 WL 3421063, at *12-14 (noting that the United States found 2.5 grams of heroin, two digital scales, and drug paraphernalia). With Barela's admission and the other evidence found at his residence, the Court concludes that he was trafficking drugs from his residence.
Application Note 14(B) states that § 2K2.1(b)(6) applies in a drug trafficking case when "a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia." U.S.S.G. § 2K2.1(b)(6), Application Note 14(B). In the same closet that the firearms were found, NMSP agents found a bag containing needles, three scales, two pill bottles, a cutoff can bottom with heroin residue, and a plastic bag filled with change and other drug paraphernalia. See PSR ¶ 12, at 4. The firearms were thus found in close proximity to drugs, drug-manufacturing materials, and drug paraphernalia. See U.S.S.G. § 2K2.1(b)(6), Application Note 14(B).
In United States v. Pacheco, the Court applied § 2K2.1(b)(6)'s 4-level enhancement when a firearm was found in the same trailer as a small amount of heroin, two digital scales, and drug paraphernalia. See 2014 WL 3421063, at *12-14. The Court reasoned that, in addition to the close proximity between the drugs and the firearm, the defendant could have used the firearm to facilitate drug trafficking by using it to protect himself and his drug supply. See 2014 WL 3421063, at *14. Here, the firearms were found in the same closet as Barela's drugs, scales, and drug paraphernalia. See PSR ¶ 11, at 4. The
The Court does not conclude, however, that there is sufficient evidence to support a finding, by a preponderance of the evidence, that Barela possessed stolen goods. A preponderance of the evidence does not support a finding that the items were stolen, as the only thing supporting that finding is that there was a large number of items that were unopened. Possessing unopened items, without more, is insufficient for the Court to find, by a preponderance of the evidence, that the items were stolen.
United States v. Nolf, 30 F.Supp.3d 1200, 1222-24 (D.N.M.2014) (Browning, J.)(emphasis in original).
