United States v. Cervantes-Chavez, CR 14–0259 JB.

• Decision Date: 03 November 2014
• Docket Number: No. CR 14–0259 JB.,CR 14–0259 JB.
• Citation: 59 F.Supp.3d 1295
• Court: U.S. District Court — District of New Mexico
• Parties: UNITED STATES of America, Plaintiff, v. Omar CERVANTES–CHAVEZ, Defendant.

59 F.Supp.3d 1295

UNITED STATES of America, Plaintiff

v.Omar CERVANTES–CHAVEZ, Defendant.

No. CR 14–0259 JB.

United States District Court, D. New Mexico.

Filed Nov. 3, 2014.

Damon P. Martinez, United States Attorney, Lynn Wei–Yu Wang, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, Attorneys for the Plaintiff.

Santiago E. Juarez, Albuquerque, NM, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Exception to Pre–Sentence Report and Request for Evidentiary Hearing, filed June 27, 2014 (Doc. 20) (“Objections”). The Court held a hearing on September 12, 2014. The primary issues are: (i) whether to apply the cross-reference provision of the guideline for being an illegal alien in possession of a firearm and calculate Defendant Omar Cervantes–Chavez' sentence under the drug-possession guideline, even though Cervantes–Chavez' crime of conviction was being an illegal alien in possession of a firearm; (ii) whether the Court should calculate Cervantes–Chavez' base offense level under the drug-possession guideline using only the actual weight of marihuana discovered at the scene or should additionally consider the drug-weight equivalent of $19,652.00 cash found at the scene; (iii) whether the Court should apply a 2–level enhancement for possessing a dangerous weapon, even though said possession is a necessary element of Cervantes–Chavez' crime of conviction; (iv) whether the Court should apply a 2–level enhancement for being an “organizer, leader, manager, or supervisor,” where there is no direct evidence that Cervantes–Chavez organized the activities of other members of a criminal organization, and where only his relevant conduct—and not his crime of conviction, possessing firearms as an illegal alien—is the subject of any alleged criminal organizational activity; and (v) whether the Court should vary Cervantes–Chavez' sentence downward to reflect impending changes to the Guidelines which indicate a more lenient sentence for drug offenders than the current Guidelines. The Court will cross reference to the drug-possession guideline, because the Court may consider all of Cervantes–Chavez' relevant conduct, and the Court finds by a preponderance of the evidence that Cervantes–Chavez committed the crime of illegal drug possession as 21 U.S.C. § 841(a)(1) defines that offense. The Court will convert the $19,652.00 in currency found at the scene into its drug-weight equivalent, because there is sufficient evidence—namely, that the bulk of this enormous quantity of money 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. The Court will also apply the 2–level enhancement for possessing a dangerous weapon, because using an essential element of the defendant's crime of conviction to trigger an enhancement under the Guidelines does not constitute double counting. The Court will not, however, apply the 2–level enhancement for being an organizer, leader, manager, or supervisor. Although the Court can apply such an enhancement even where the crime of conviction is unrelated to any criminal organization, the Court finds insufficient evidence that Cervantes–Chavez satisfies the requirements for an upward role adjustment, because there is no direct evidence that he organized the activities of other participants in a common criminal scheme. Last, the Court will grant Cervantes–Chavez a downward variance so that his sentencing range will match the one he would receive under the impending changes to the Guidelines, and the Court will impose a sentence at the bottom of that range: 37–months imprisonment.

FACTUAL BACKGROUND

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 informant (“CI”), told the agents that the marihuana was to be delivered to a man named “Omar” who resided at 1712 Bonito Court, S.W., Albuquerque, New Mexico. PSR ¶ 12, at 4. This first name and address match those of Cervantes–Chavez. See PSR at 1–2.

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.

PROCEDURAL BACKGROUND

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 scene¹ —and subtracting five percent of the total weight for packaging.² PSR ¶ 20, at 5. The USPO thus assesses a base offense level of 24 pursuant to U.S.S.G. § 2D1.1(c)(8), which applies to cases involving “[a]t least 80 KG but less than 100 KG of Marihuana.” PSR ¶ 25, at 6. It then applies a 2–level enhancement for using a dangerous weapon, see PSR ¶ 26, at 6 (citing U.S.S.G. § 2D1.1(b)(1) ), and another 2–level enhancement for Cervantes–Chavez' alleged role as an organizer, leader, manager, or supervisor, see PSR ¶ 29, at 6 (citing U.S.S.G. § 3B1.1(c) ). The USPO bases the role adjustment on the fact that Cervantes–Chavez “was responsible for accepting and storing loads of marijuana and currency related to the drug transactions,” and that he “had acted in this capacity for over a year.” PSR ¶ 29, at 6. The USPO then decreases the offense level by 3 levels for Cervantes–Chavez' acceptance of responsibility, resulting in a final offense level of 25. See PSR ¶¶ 33–35, at 7.

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:

If the court attributes the drug amounts, as converted including the cash, then that would place Mr. Cervantes at a level 24.

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

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