United States v. Barela
| Decision Date | 06 April 2015 |
| Docket Number | No. CR 13–3515 JB.,CR 13–3515 JB. |
| Citation | 102 F.Supp.3d 1212 |
| Parties | UNITED STATES of America, Plaintiff, v. Isaac BARELA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
102 F.Supp.3d 1212
UNITED STATES of America, Plaintiff,
v.
Isaac BARELA, Defendant.
No. CR 13–3515 JB.
United States District Court, D. New Mexico.
Filed April 6, 2015.
Damon P. Martinez, United States Attorney, Paige Messec, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.
Stephen P. McCue, Federal Public Defender, Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, NM, for the Defendant.
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTERcomes before the Court on the Defendant's Objection to Presentence Report and Request for Variance and Sentencing Memorandum, filed June 24, 2014 (Doc. 27)(“Objections”). The Court held a sentencing hearing on July 8, 2014. The primary issue is whether there is sufficient evidence to establish that Defendant Isaac Barela used or possessed a firearm in connection with another offense to support a 4–level enhancement under § 2K2.1(b)(6). The Court will overrule Barela's Objections in part and sustain them in part. The Court finds, by a preponderance of the evidence, that Barela used or possessed a firearm in connection with another felony offense, that is, a drug trafficking offense, because he admitted to dealing drugs, and the New Mexico State Police (“NMSP”) agents found at his residence
0.25 ounces—or roughly seven grams—of heroin, boxes of hypodermic needles, a large amount of cash, and six scales. The Court will sustain Barela's objection that the 27.35 milliliters of substance that was found in the needles is not pure heroin, because the Court cannot find by a preponderance of the evidence that all 27.35 milliliters is heroin.
FACTUAL BACKGROUND
In a Plea Agreement, filed March 24, 2014 (Doc. 22)(“Plea Agreement”), Barela admitted the following facts:
On July 23, 2013, a group of police officers came to my house to arrest me on a warrant. I gave them permission to search the house. In my closet they found a Winchester long rifle and a handgun. The Winchester was a model 190, .22 L/LR rifle, with serial number B1793201. The handgun was a Llama, model Micro–Max 380, .380 AUTO caliber pistol, with serial number 71040373703. Both weapons were loaded. I knew that they were in my closet. I acknowledge that the government can prove that the firearms were not manufactured in the state of New Mexico and that they therefore traveled in interstate commerce.
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.
A thorough search of Barela's bathroom located a tall box of needles, with several small boxes, each containing an open bag of needles loaded with a brown liquid that appeared to be heroin. Additionally, in a closet of one of the bedrooms of the home, agents located a .22 caliber Winchester long rifle and a .380 caliber handgun. Both firearms were loaded and very near another box of hypodermic needles that contained what appeared to be heroin. Also located in the closet was three scales, two pill bottles, a cut off can bottom with heroin residue, and a plastic bag filled with change and other drug paraphernalia. A search of the room where Barela had been located found a number of bags and containers which, when opened, contained speakers, amps, car charger kits, power tools, a chainsaw, and numerous personal items. All of the items in this room appeared to have been stolen due to the large quantity and because none of the items had been opened.
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.
PROCEDURAL BACKGROUND
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
trafficking crime in violation of 18 U.S.C. § 924(c)(“Count 3”). Indictment at 1–2, filed October 30, 2013 (Doc. 1)(“Indictment”). On March 24, 2014, Barela pled guilty to Count 2 of the Indictment. SeePlea Agreement ¶ 3, at 2. The United States moved to dismiss Counts 1 and 3, seeMotion to Dismiss Counts 1 and 3 of the Indictment, filed July 8, 2014 (Doc. 33), which the Court did on July 8, 2014, seeOrder Dismissing Counts 1 and 3 of the Indictment, filed July 8, 2014 (Doc. 34).
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. SeePSR ¶¶ 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. SeePSR ¶ 28–29, at 6. The PSR notes that Barela's total offense level is 22. SeePSR ¶ 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. SeePSR ¶¶ 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. SeePSR ¶ 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
[w]hen a heroin user injects heroin into his vein some blood is released. In a heavy intravenous heroin user some times veins are so badly scarred and damaged that it is hard to hit a healthy vein. When that happens, heroin does not enter the vein but rather the user's blood backs into the syringe and he is unable to inject the heroin into the vein so the needle, now containing blood and heroin, is removed from the user's arm.
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. SeeObjections at 2.
Second, Barela objects to the application of § 2K2.1(b)(6). SeeObjections 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
of the firearm was merely coincidental to his possession of the heroin,” and that the 4–level enhancement is improper. Objections at 5.1
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...
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