United States v. Garcia-Garcia
| Decision Date | 10 August 2021 |
| Docket Number | CR 20-1221 JB |
| Citation | 553 F.Supp.3d 973 |
| Parties | UNITED STATES of America, Plaintiff, v. Humberto GARCIA-GARCIA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Fred J. Federici, Acting United States Attorney, Nicholas Scott Mote, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Joe M. Romero, Jr., Romero & Winder, PC, Albuquerque, New Mexico, Attorney for the Defendant.
THIS MATTER comes before the Court on Plaintiff United States’ Objection to the Presentence Report, filed July 7, 2021 (Doc. 39)("Objection"). The primary issue is whether the Court should convert $4,000.00 in cash that arresting officers found in Defendant Humberto Garcia-Garcia's vehicle to 66.66 grams of methamphetamine, which would raise Garcia-Garcia's base offense level from 16 to 30 under United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(a)(5), (c)(5), because Plaintiff United States of America states that it will not present evidence necessary to satisfy its burden to convert the cash to drugs. The Court will not convert the $4,000.00 in cash to 66.66 grams of methamphetamine, because the preponderance of the evidence does not show that the cash is attributable to the sale of methamphetamine. Accordingly, the Court sustains the United States’ Objection.
The Court takes its facts from the Presentence Investigation Report, filed June 4, 2021 (Doc. 43)("PSR"). The Court makes its findings of fact by a preponderance of the evidence. United States v. Williams, No. CR. 17-2556 JB, 2020 WL 4016108, at *6 (D.N.M. July 16, 2020) (Browning, J.)(citing United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008) ). Accord United States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008). The Court may rely on hearsay if the hearsay is reliable. See United States v. Banda, 168 F. Appx. 284, 289 (10th Cir. 2006) ().1 The evidence and information upon which the Court relies must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 ().
1. On December 7, 2019, a Bosque Farms Police Department officer, while traveling southbound on the four-lane New Mexico highway 47, in Valencia County, New Mexico, saw a black Mercedes sedan in front of his patrol vehicle traveling in the left lane. See PSR ¶ 11, at 5.
2. As the officer followed behind the Mercedes, the officer watched the vehicle swerve over the center marked lane divider three separate times. See PSR ¶ 11, at 5.
3. The officer then stopped the vehicle, approached the vehicle, and noticed that the driver, Garcia-Garcia, had a twenty-ounce Modelo beer between his legs. See PSR ¶ 12, at 5.
4. Garcia-Garcia had bloodshot watery eyes and he admitted to consuming alcohol earlier in the day. See PSR ¶ 12, at 5.
5. The officer then asked Garcia-Garcia to step out of the vehicle. See PSR ¶ 12, at 5.
6. As Garcia-Garcia opened the door, the officer saw a handgun protruding from underneath the driver's seat and a white clear baggie containing a white crystal substance in the pocket of the driver's side door partially concealed. See PSR ¶ 12, at 5.
7. The officer then detained Garcia-Garcia. See PSR ¶ 12, at 5.
8. Another officer arrived on scene. See PSR ¶ 13, at 5.
9. Garcia-Garcia stated that he was not feeling well, so the officers requested an ambulance. See PSR ¶ 13, at 5.
10. Dispatch told the officers that Garcia-Garcia's license had been revoked. See PSR ¶ 13, at 5.
11. As one of the officers was photographing the items the first officer had found in the vehicle, Garcia-Garcia, who was handcuffed, started to run away. See PSR ¶ 13, at 5.
12. The officers chased Garcia-Garcia on foot. See PSR ¶ 13, at 5.
13. Garcia-Garcia then fell, and the officers detained him after a brief struggle. See PSR ¶ 13, at 5.
14. After the officers asked Garcia-Garcia why he decided to run, Garcia-Garcia said: "I have a wife and kid, I want to see them." PSR ¶ 14, at 5.
15. Medical personnel arrived on scene and treated Garcia-Garcia for injuries sustained during the fall. See PSR ¶ 14, at 5.
16. Garcia-Garcia was transported to a hospital, where nursing staff found a one dollar bill inside his pants with a white powdery substance. See PSR ¶ 14, at 6.
17. After medical personnel discharged Garcia-Garcia, he was arrested. See PSR ¶ 14, at 6.
18. Officers conducted an inventory of Garcia-Garcia's vehicle, and found: (i) one white bag of suspected methamphetamine in the driver's door; (ii) one .40 caliber handgun, loaded, underneath the driver's seat; (iii) twelve rounds in an extended thirty-round magazine inserted in the .40 caliber handgun under the driver's seat; (iv) unknown pills; (v) $4,000.00 cash in the glove compartment; (vi) a backpack near the center console containing one scale and 150 small plastic baggies; (vii) about 1.9 grams of suspected marijuana in the backseat; (viii) three driver's licenses; (ix) two social security cards; and (x) two cellular phones. See PSR ¶¶ 15-16, at 6.
19. A Drug Enforcement Administration ("DEA") lab report shows that the white substance discovered in the inventory tested consisted of 12.2 grams of methamphetamine (actual). See PSR ¶ 16, at 6.
20. Officers performed a field test on the marijuana revealing a weight of 1.9 ounces. See PSR ¶ 16, at 6.
21. According to the New Mexico Investigative Support Center and the Southwest Border High-Intensity Drug Trafficking Areas, which track the local market value for drugs, one gram of methamphetamine (actual) in the Albuquerque, New Mexico is worth $60.00. See PSR ¶ 16, at 6.
22. On February 20, 2020, a Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") agent examined the firearm that the officers found in Garcia-Garcia's vehicle and identified it as a .40 caliber Taurus PT-140 handgun, serial number SVB 52180. PSR ¶ 17, at 6.
23. On January 21, 2020, the ATF conducted an eTrace,2 which showed that the firearm was not manufactured in New Mexico, was registered to an individual who was not Garcia-Garcia, and was sold in Artesia, New Mexico. See PSR ¶ 17, at 6.
24. Neither ATF nor Artesia Police Department records indicate whether the firearm was stolen. See PSR ¶ 17, at 6.
25. On February 24, 2020, Garcia-Garcia provided a statement to Department of Homeland Security Investigations ("HSI") officers. PSR ¶ 18, at 6.
26. Before his arrest, Garcia-Garcia had sold a truck to Jesse Hernandez, who was later arrested in Hobbs Act robbery, New Mexico and the vehicle was impounded. See PSR ¶ 18, at 6.
27. Garcia-Garcia and his brother drove to Hobbs to pick up the truck from impound, and, upon picking up the truck, Garcia-Garcia's brother found a black bag in the truck that contained drugs. See PSR ¶ 18, at 6.
28. Garcia-Garcia's brother told him to place the drugs in his car and hold them for Hernandez. See PSR ¶ 18, at 6.
29. While cleaning the truck, Garcia-Garcia found a gun and placed the gun in his vehicle to hold for Hernandez. See PSR ¶ 18, at 6.
30. Garcia-Garcia described the methamphetamine to be eight grams, and admitted that he knew it was illegal to possess both drugs and a weapon. See PSR ¶ 18, at 6.
31. At the time Garcia-Garcia was arrested on December 7, 2019, he had been employed full-time as a construction worker earning $15.00 an hour since June 1, 2019. See PSR ¶ 59, at 13.
32. From January 1, 2019, until May 31, 2019, Garcia-Garcia worked full time as a farmer for Engineered Foundation System. See PSR ¶ 60, at 13.
33. From January 1, 2015, until January 1, 2019, Garcia-Garcia worked full time as a construction worker. See PSR ¶ 61, at 13-14.
34. From January 1, 2014, until December 31, 2014, Garcia-Garcia worked full time "making marble before leaving to another position, on average of 30-40 hours a week, earning on average $11.25 hourly." PSR ¶ 62, at 14.
A grand jury indicted Garcia-Garcia in May, 2020. See Indictment, filed May 12, 2020 (Doc. 8). In September, 2020, Garcia-Garcia pleaded guilty to: (i) violating of " 21 U.S.C. §§ 841(a)(l) and (b)(l)(C), that being Possession with Intent to Distribute a Mixture and Substance Containing Methamphetamine"; and (ii) violating " 18 U.S.C.§ 924(c)(l)(A)(i) that being Using and Carrying a Firearm During and in Relation to a Drug Trafficking Crime, and Possessing a Firearm in Furtherance of Such Crime." Plea Agreement at 2, filed September 3, 2020 (Doc. 25)("Plea"). In return for his plea, the parties agree, pursuant to rule 11(c)(1)(C) of the Federal Rule of Criminal Procedure, to a sentence of 72 months imprisonment. See Plea at ¶ 14, at 7.
The United States Probation Office ("USPO") calculates that Garcia-Garcia's base offense level is 30 under U.S.S.G. § 2D1.1(a)(5). PSR ¶ 25, at 8. The USPO calculates a base offense level of 30 according to § 2D1.1(c)(5) ’s table, by converting the $4000.00 cash seized to 66.66 grams of methamphetamine and adding that amount to the 12.2 grams of methamphetamine the Bosque Farm officers had seized, for a total of 88.86 grams of methamphetamine. See PSR ¶¶ 25, 85 at 8, 17. The USPO subtracted 3 levels for Garcia-Garcia's acceptance of responsibility. See PSR ¶¶ 32-33, at 8. The USPO calculates that Garcia-Garcia's total offense level is 27. See PSR ¶ 34, at 8.
Garcia-Garcia filed a Sentencing Memorandum on December 31, 2020 (Doc....
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