United States v. Ornelas-Yanez

• Decision Date: 09 December 2014
• Docket Number: No. CR 13–0325 JB.,CR 13–0325 JB.
• Citation: 77 F.Supp.3d 1083
• Court: U.S. District Court — District of New Mexico
• Parties: UNITED STATES of America, Plaintiff, v. Jesus Jose ORNELAS–YANEZ, Defendant.

77 F.Supp.3d 1083

UNITED STATES of America, Plaintiff

v.Jesus Jose ORNELAS–YANEZ, Defendant.

No. CR 13–0325 JB.

United States District Court, D. New Mexico.

Filed Dec. 9, 2014.

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

Santiago E. Juarez, Albuquerque, NM, 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 filed on October 7, 2014 (Doc. 96)(“Objections”). The Court held an evidentiary sentencing hearing on October 8, 2014. The primary issues are: (i) whether a conditional discharge under New Mexico State law qualifies as a prior sentence under U.S.S.G. § 4A1.1(c) ; (ii) whether the Court should use a preponderance of the evidence standard in determining whether Defendant Jesus Jose Ornelas–Yanez is an organizer, leader, manager, or supervisor under U.S.S.G. § 3B1.1(c) ; (iii) whether Ornelas–Yanez is an organizer, leader, manager, or supervisor under U.S.S.G. § 3B1.1(c) ; and (iv) and whether there is sufficient evidence to conclude that Ornelas–Yanez engaged in multiple drug transactions. Because a conditional discharge is a prior sentence if it is predicated on a finding of guilt, a conditional discharge can be a prior sentence under U.S.S.G. § 4A1.1(c). Because the Court should use a preponderance of the evidence standard, Ornelas–Yanez is an organizer and a leader under U.S.S.G. § 3B1.1(c). Because sufficient evidence was presented at the October 8, 2014, evidentiary hearing, the Court concludes that Ornelas–Yanez engaged in multiple drug transaction. The Court will, thus, overrule Ornelas–Yanez' Objections and sentence him to 121–months imprisonment.

FACTUAL BACKGROUND

The Court takes its facts from the Presentence Investigation Report, disclosed October 9, 2013 (“PSR”), that the United States Probation Office (“USPO”) prepared. In August, 2011, United States Drug Enforcement Administration (“DEA”) agents initiated an investigation into a drug trafficking organization that was operating in Portales, New Mexico. See PSR ¶ 10, at 4. As part of its investigation, the DEA obtained information about the drug trafficking organization from confidential sources. See PSR ¶ 10, at 4. On December 9, 2012, a person known as “El Chungo” contacted a confidential source (“CS”) and informed the CS that he had five pounds of methamphetamine for sale. PSR ¶ 11, at 4. The DEA later learned that Ornelas–Yanez is El Chungo. See PSR ¶ 12, at 4. Ornelas–Yanez offered to provide the CS one pound of methamphetamine on consignment for $13,500.00. See PSR ¶ 11, at 4.

On December 11, 2012, the CS contacted Ornelas–Yanez by telephone, and they agreed that the CS would send a courier to Portales, to pick up the pound of methamphetamine. See PSR ¶ 11, at 4. On December 12, 2012, an undercover DEA agent, acting as the CS' courier, arrived at Mark's Restaurant in Portales. See PSR ¶ 13, at 4. Once the DEA agent arrived, the CS notified Ornelas–Yanez that the courier was waiting at the restaurant to pick up the pound of methamphetamine. See PSR ¶ 13, at 4. Ornelas–Yanez arrived at the restaurant with Thomas Garcia. See PSR ¶ 13, at 4. After a short conversation, the agent asked Ornelas–Yanez if he had the pound of methamphetamine. See PSR ¶ 14, at 4. Ornelas–Yanez told the agent that he and Garcia would have to go pick up the drugs, and that the agent should eat some food at the restaurant while he and Garcia picked up the drugs. See PSR ¶ 14, at 4. Ornelas–Yanez told the agent that Garcia would bring the agent the drugs and that Ornelas–Yanez would call the CS to give the CS instructions on where the agent should meet Garcia to receive the drugs. See PSR ¶ 14, at 4.

Ornelas–Yanez called the CS and said that the DEA agent needed to wait in the Allsups Convenience Store parking lot in Portales. See PSR ¶ 15, at 4. The CS relayed this information to the agent, who then drove in his vehicle to the parking lot to wait for Garcia. See PSR ¶ 15, at 4. Garcia arrived at the parking lot, entered the agent's vehicle, and sat in the front passenger seat. See id. ¶ 15, at 4. The agent instructed Garcia to place the drugs in a bag that was on the floor board. See PSR ¶ 15, at 4. Garcia retrieved a plastic container from his groin area, placed it in the bag, and then left the vehicle. See PSR ¶¶ 15–16, at 4. On December 13, 2012, DEA agents inspected the plastic container, which was “filled with approximately 600 gross grams of a substance that field tested positive for methamphetamine.” PSR ¶ 16, at 4. The DEA South Central Laboratory determined that 443.9 grams of the substance was actual methamphetamine and that it had a purity of 99.8 percent. See PSR ¶ 5, at 4.

On December 18, 2012,¹ Region V Task Force Officers² began surveillance of Ornelas–Yanez' residence in Portales. See PSR ¶ 16, 5. A CS told the Task Force that Ornelas–Yanez called the CS to inform the CS that he was departing from Portales to deliver to the CS a pound of methamphetamines. See PSR ¶ 16, at 5. The Task Force observed a vehicle with two occupants leaving Ornelas–Yanez' residence. See PSR ¶ 16, at 5. The Task Force stopped the vehicle, and discovered Ornelas–Yanez and his wife inside it. See PSR ¶ 16, at 5. The Task Force searched the vehicle, but did not discover any methamphetamines. See PSR ¶ 16, at 5. The Task Force determined that Ornelas–Yanez was in the United States without proper immigration documents and arrested him for illegal reentry.³ See PSR ¶ 16, at 5.

On January 14, 2013, an arrest warrant was issued for Garcia and Ornelas–Yanez, and on January 16, 2013, Garcia was arrested. See PSR ¶ 17, at 5. Garcia provided statements which said that he had been living rent-free with Ornelas–Yanez for about two years. See PSR ¶ 17, at 6. He also admitted to delivering the plastic container of methamphetamine to the DEA agent on December 12, 2012. See PSR ¶ 17, at 6. Garcia stated that he did it “out of a sense of obligation.” PSR ¶ 17, at 6. Garcia stated that he thought the plastic container contained marijuana and that it was not until after he delivered the container that he learned that it contained methamphetamine. See PSR ¶ 17, at 6. There is no information to indicate that Garcia received monetary compensation or that he had been involved in any prior drug activity. See PSR ¶ 17, at 6.

PROCEDURAL BACKGROUND

On June 26, 2013, Ornelas–Yanez pled guilty to possessing with intent to distribute 500 grams and more of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and to aiding and abetting, in violation of 18 U.S.C. § 2. See Plea Agreement at 2; Clerk's Minutes for Proceedings Held Before the Honorable Alan B. Johnson, United States District Judge Sitting by Designation from the District of Wyoming, filed June 26, 2014 (Doc. 51). The PSR recommends a Sentencing Guidelines range of 151 to 188 months. See PSR ¶ 71, at 14. Ornelas–Yanez makes three objections to the PSR's sentencing calculations. See Objections at 1–4.

1. The PSR's Calculation.

With regards to sentencing, the PSR calculates a base offense level of 34, which corresponds to that for “an offense involving 443.9 net grams of actual methamphetamine” under U.S.S.G. § 2D1.1. PSR ¶ 23, at 6. The PSR recommends an additional 2 offense levels under U.S.S.G. § 3B1.1(c) for Ornelas–Yanez' role in the offense as “an organizer, leader, manager, or supervisor.” PSR ¶ 26, at 6. The PSR also recommends a 2 offense level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and another 1 level reduction for assisting in the prosecution of his misconduct by “timely notifying the authorities of [his] intention to enter a plea of guilty” under U.S.S.G. § 3E1.1(b). PSR ¶¶ 30–31, at 6. The PSR recommends a total offense level of 33. See PSR ¶ 32, at 6.

The PSR calculates that Ornelas–Yanez has a criminal history score of 2 and a resulting criminal history category of II. See PSR ¶¶ 37–38, at 8. This criminal history score results from two convictions. See PSR ¶¶ 35–36, at 7–8. The first conviction occurred in Portales, and was for possession of a controlled substance, and use or possession of drug paraphernalia. See PSR ¶ 35, at 7. Ornelas–Yanez received a conditional discharge without adjudication after the court “accepted and recorded a plea of guilty.” PSR ¶ 35, at 7. See Order for Conditional Discharge and Probationary Supervision at 1, filed October 8, 2014 (Doc. 101)(“Hearing Ex. 1”)(noting that the state court “accepted and recorded a plea of guilty” on January 7, 2008). Sentencing was imposed on January 15, 2008, and Ornelas–Yanez received eighteen months of probation. See PSR ¶ 35, at 7. The PSR notes that, on April 7, 2009, probation was discharged satisfactorily. See PSR ¶ 35, at 7. The second conviction occurred in Toledo, Ohio, for trafficking in marijuana. See PSR ¶ 36, at 7. Ornelas–Yanez was sentenced to three years of probation on March 22, 2012, and probation was terminated on April 18, 2012, because Ornelas–Yanez paid all “fines/costs.” PSR ¶ 36, at 7.

The PSR notes that the minimum term of imprisonment for violations of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A) is ten years and the maximum term is life. See PSR ¶ 70, at 14. The PSR recommends, for an offense level of 33 and a criminal history category of II, an imprisonment range between 151 and 188 months. See PSR ¶ 71, at 14.

2. Ornelas–Yanez' Objections.

On December 30, 2013, Ornelas–Yanez filed the Defendant's Exception to Pre–Sentence Report and Request for Evidentiary Hearing, filed December 30, 2013 (Doc. 74)(“First Objections”). On May 5, 2014, Ornelas–Yanez withdrew the First Objections. See Defendant's Notice to Withdraw Defendant's Exception to Pre–Sentence Report and Vacate Evidentiary Hearing, filed May 5, 2014 (Doc. 84) (“Notice to...