United States v. Basurto

Decision Date29 July 2015
Docket NumberNo. CR 13–0969 JB.,CR 13–0969 JB.
Citation117 F.Supp.3d 1266
Parties UNITED STATES of America, Plaintiff, v. Rachel Chavez BASURTO, Defendant.
CourtU.S. District Court — District of New Mexico

Damon P. Martinez, United States Attorney, Linda Mott, Lynn Wei–Yu Wang, Assistant United States Attorneys, United States Attorney's Office for the District of New Mexico, Albuquerque, NM, for Plaintiff.

Stephen P. McCue, Federal Public Defender, John Van Butcher, Assistant Federal Public Defender, Federal Public Defender's Office, Albuquerque, NM, for Defendant.


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Sentencing Memorandum and Motion for Downward Departure, filed June 18, 2014 (Doc. 57) ("Sentencing Memo."); (ii) the United States' Supplemental Briefing to the Court in Support of a Fine as Part of Defendant's Sentence, filed November 6, 2014 (Doc. 66)("U.S. Fine Memo."); and (iii) Ms. Basurto's Supplemental Brief in Opposition to Imposition of a Fine, filed March 24, 2015 (Doc. 70) ("Basurto Fine Memo."). The Court held sentencing hearings on October 7, 2014, and May 18, 2015. The primary issues are: (i) what term of imprisonment to impose upon Defendant Rachel Basurto, where there are numerous potential grounds for downward variances but also where she violated the terms of her pretrial release by committing the same criminal conduct that formed the basis of the crime of conviction in this case; and (ii) what fine to impose upon Basurto, where she owns a home jointly with her absentee husband, out of which she dealt illegal drugs, but also where she has minimal income prospects going forward, even when she is released from prison. As to the incarceration questions, the Court will treat Basurto as if her criminal history were one category less serious than the United States Sentencing Guidelines says it is, because one of the two felony convictions that ratchets up her criminal history score is about as old as a conviction can be while still being counted under the Guidelines. The Court will not reduce Basurto's sentence on acceptance-of-responsibility grounds, because her criminal conduct on pretrial release indicates a lack of acceptance of responsibility, but it will vary downward two offense levels to reflect what her base offense level would be under an impending amendment to the drug-possession guideline. The Court will then vary the equivalent of twenty-seven months below the bottom of the working Guidelines range based on Basurto's personal characteristics, and it will impose a sentence of 51–months imprisonment. As for the fine issue, the Court will impose a fine equal to half of the estimated value of Basurto's home—reflecting the reality that her husband jointly owns the property and that he was not involved with her drug-dealing operation—less $2,500.00 in debt that Basurto owes to various creditors. This figure comes out to $13,133.33.


The Court takes its facts from the Presentence Investigation Report, disclosed April 28, 2014 ("PSR"), which the United States Probation Office ("USPO") prepared. The Court will first outline the facts of Basurto's offense. In compiling that section of the PSR, the USPO relied heavily on the investigative materials that the Drug Enforcement Administration ("DEA") prepared. PSR ¶ 9, at 6. The Court will then briefly describe Basurto personally, including her upbringing, her medical and mental-health situation, and her criminal history. The USPO obtained that information primarily from the presentence interview it conducted with Basurto. See PSR ¶ 49, at 13.

1. The Offense of Conviction.

On March 5, 2013, DEA agents received information from the New Mexico State Police Department in reference to Basurto possibly being involved in the distribution of illegal narcotics. See PSR ¶ 10, at 6. The DEA agents and state police officers visited her residence in Grants, New Mexico, to investigate their suspicions. See PSR ¶ 10, at 6. The DEA agents approached the front of the residence and knocked on the front door, and Basurto opened the door and agreed to speak to them. See PSR ¶ 11, at 6. The agents then asked if they had permission to enter her house, to which she replied "yes." PSR ¶ 11, at 6.

Basurto stated she owned the residence and that she shared it with her daughter, Roxanne Garza, and son-in-law, Isai Bartolon–Deleon. See PSR ¶ 11, at 6. The agents advised her that they had reason to believe that she was involved in trafficking prescription pills and acquiring prescriptions by fraud or forgery. See PSR ¶ 12, at 6. They asked her if she had any prescription pills in the house that did not belong to her, and she presented them with a list of her prescribed medications and where she kept them. See PSR ¶ 12, at 6. The DEA agents then questioned her about whether she kept any weapons or illegal drugs in the residence, and she indicated that there were "swords and a bow and arrow," but no other weapons in the house. PSR ¶ 12, at 6. Basurto also indicated that there were no illegal drugs in the residence and that the only drugs in the house were her prescribed medications. See PSR ¶ 12, at 6. Agents asked her if she would consent to a search of the residence, and she gave verbal and written consent. See PSR ¶ 12, at 6.

During the search, the agents found a scale, a box of small plastic baggies, and a razor blade in plain view on a desk table in Basurto's bedroom. See PSR ¶ 13, at 6. The agents also found a small safe and a cash-laden handbag in a false space located in the top of a closet. See PSR ¶ 13, at 6. At that point, the agents deployed a narcotics K–9 to search the residence. See PSR ¶ 13, at 6. The K–9 alerted on the small safe and on a larger safe located in Basurto's bedroom. See PSR ¶ 13, at 6. Basurto related that she did not have a key to the small safe and did not know the combination to the large safe. See PSR ¶ 14, at 6. Basurto's daughter then opened the larger safe for the agents, revealing quantities of a white crystalline substance that field tested positive for methamphetamine, and two handbags containing cash and a Lorcin .25 caliber handgun. See PSR ¶ 14, at 6–7. The agents also found keys to the small safe in the larger safe. See PSR ¶ 14, at 7. The agents next opened the small safe, which contained $28,000.00 in cash. See PSR ¶ 14, at 7. The DEA agents conducted a further search of the false space in the closet, which yielded another small box containing a white crystalline substance that field tested positive for methamphetamine. See PSR ¶ 15, at 7. The agents also discovered, wrapped in a blanket in the closet, a brown substance that field tested positive for heroin. See PSR ¶ 15, at 7. The agents placed Basurto under arrest and terminated the search. See PSR ¶ 15, at 7.

According to DEA laboratory reports, a total of 11.5 grams of methamphetamine and 94.1 grams of heroin were recovered from Basurto's residence. See PSR ¶ 16, at 7. The DEA case agent assigned to the case states that Basurto appears to have been a source and supplier of heroin, methamphetamine, and oxycodone in the Grants area.See PSR ¶ 17, at 7. The case agent states that he believes that Basurto played a significant role in the distribution of illegal narcotics. See PSR ¶ 17, at 7. The case agent opines that the amounts of illegal substances and money—as well as the presence of the firearm—in her residence are "not indicative of someone who is a low-level street dealer." PSR ¶ 17, at 7. According to the case agent and the Assistant United States Attorney assigned to the case, Basurto did not provide a post-arrest statement, and she has not yet been debriefed. See PSR ¶ 17, at 7. The case agent states, however, that there is no evidence that the firearm located in the residence was stolen or that it has ever been involved in a crime. See PSR ¶ 17, at 7.

In addition to the crime of indictment, in March, 2014, while on pretrial release, Basurto sold 1.1 grams of heroin to confidential law enforcement sources. See PSR ¶ 19, at 7. The USPO opines that, under U.S.S.G. § 1B1.3 (Relevant Conduct), Basurto's March, 2014 conduct is part of the same course of conduct as the counts of conviction and that she is thus on the hook for the additional 1.1 grams of heroin. See PSR ¶ 19, at 7.

2. Basurto's Personal Characteristics and Criminal History.

The Court will describe the USPO's relevant findings about Basurto's background. The Court will describe her (i) upbringing; (ii) mental and physical health and substance-abuse history; (iii) financial condition; and (iv) relevant criminal history.

a. Upbringing and Family Information.

Basurto was born on February 23, 1961, in Grants; she is, thus, currently fifty-four years old. See PSR ¶ 50, at 13. She does not know who her biological father is and has no contact with him. See PSR ¶ 50, at 13. Her mother, who is currently seventy-three years old, married William Salcido, who is currently seventy-one years old, when she was young; Salcido raised Basurto, and Basurto considers him to be her father. See PSR ¶ 50, at 13. Salcido and her mother are both disabled, and they presently live together in San Rafael, New Mexico. See PSR ¶ 50, at 13. Salcido suffers from depression, heart problems, and high blood pressure

, and he has a pacemaker. See PSR ¶ 50, at 13. He is ex-military and was a miner. See PSR ¶ 50, at 13. Basurto's mother suffers from diabetes, high blood pressure and severe joint pain, and she is expecting to undergo knee and hip replacement surgery. See PSR ¶ 50, at 13. Basurto helps care for both of her parents, and they require twenty-four-hour in-home nurse care. See PSR ¶ 50, at 13.

Basurto has a positive and close relationship with her parents. See PSR ¶ 50, at 13. Her parents are aware of her current situation, and they are worried that they will not be alive to see her upon her release. See PSR ¶ 50, at 13. Basurto indicates that her parents have no...

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    ...cannot rely on these labels and must make their own determinations about the nature of the sanction." United States v. Basurto, 117 F.Supp.3d 1266 (D.N.M. 2015) (citing Austin v. United States , 509 U.S. at 618, 113 S.Ct. 2801 ). Thus, "[s]tatutory civil forfeitures, special assessments, an......
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