United States v. Roybal

Decision Date24 May 2016
Docket NumberNo. CR 12–3182 JB,CR 12–3182 JB
Citation188 F.Supp.3d 1163
Parties United States of America, Plaintiff, v. George Roybal, Defendant.
CourtU.S. District Court — District of New Mexico

Counsel: Damon P. Martinez, United States Attorney, Joel R. Myers, Cynthia Weisman, Stephen R. Kotz, Shana Long, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff

Samuel L. Winder, Walz & Associates, Albuquerque, New Mexico, Attorney for the Defendant

UNSEALED MEMORANDUM OPINION AND ORDER1

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Sentencing Memorandum for Defendant George Roybal, filed April 14, 2015 (Doc. 846)("Objections"). The Court held sentencing hearings on May 27, 2015, June 1, 2015, and June 2, 2015. The primary issues are: (i) whether the Court should apply a 2-level adjustment under United States Sentencing Guidelines ("USSG") § 2D1.1(b)(1) for possessing a dangerous weapon in connection with a drug-trafficking offense; (ii) whether the Court should impose a 2-level enhancement under § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance; (iii) whether the Court should impose a 2-level adjustment under § 3C1.1 for willfully obstructing or impeding the administration of justice; (iv) whether the Court should increase Defendant George Roybal's base offense from 24 to 26 for trafficking two kilograms of cocaine on April 10, 2012; (v) whether the Court should grant G. Roybal a mitigating role adjustment under § 3B1.2; and (vi) whether the Court should vary from the advisory guideline range in fashioning an appropriate sentence for G. Roybal under 18 U.S.C. § 3553(a). The Court will not impose a 2-level enhancement under § 2D1.1(b)(1), because G. Roybal has demonstrated that it is clearly improbable that the guns discovered at his house were used in connection with drug-trafficking offenses by showing that he used those guns for hunting. The Court will impose a 2-level enhancement under § 2D1.1(b)(12), because the United States has shown by a preponderance of the evidence that distributing illegal drugs was one of G. Roybal's primary uses for his residence. The Court will impose a 2-level adjustment under § 3C1.1, because G. Roybal willfully instructed and impeded the administration of justice when he threatened a confidential informant and his or her family. The Court will increase G. Roybal's base offense level from 24 to 26, because the United States has shown by a preponderance of the evidence that G. Roybal was involved in trafficking two kilograms of cocaine on April 10, 2012. The Court will not grant G. Roybal a mitigating role adjustment under § 3B1.2, because there is no evidence that he is less culpable than the average participant in the Christopher Roybal Drug-Trafficking Organization ("C. Roybal DTO"). Finally, the Court will not grant G. Roybal's request for a variance.

FACTUAL BACKGROUND

The Court includes this general factual background section to provide context to the case and tell a coherent story. The Court takes its facts entirely from: (i) the re-disclosed Presentence Report, filed April 8, 2015 ("PSR"); (ii) the Sealed Response to Defendant George Roybal's Sentencing Memorandum, filed April 28, 2015 (Doc. 872)("Response"); and (iii) the Indictment, filed December 12, 2012 (Doc. 1)("Indictment").2 The Court will make findings of fact to resolve facts that G. Roybal disputes in a second factual background section.

In June 2011, the Federal Bureau of Investigation ("FBI") initiated an investigation code named Operation Rain Check into the C. Roybal DTO. See PSR ¶ 13, at 9. Operation Rain Check involved numerous investigative techniques, including multiple controlled purchases of kilogram-quantities of cocaine and marijuana using a confidential human source—"CHS-1."3 Response at 2. During the course of the controlled purchases, CHS-1 met with and received drugs from G. Roybal and C. Roybal, who is G. Roybal's nephew. See PSR ¶¶ 15, 24, 25, at 9, 13. Operation Rain Check culminated in a nineteen-Defendant indictment that Plaintiff United States of America filed on December 12, 2012. See Indictment at 1. The FBI's investigation into the Roybal DTO revealed that G. Roybal of Albuquerque, New Mexico—was an associate of the Roybal DTO. See PSR ¶ 18, at 10. "G. Roybal resided at 605 Parkside SE which agents believed was used as a stash house for the Roybal DTO." PSR ¶ 18, at 10. According to the case agent, G. Roybal was very involved in the C. Roybal DTO because he stored money and drugs at his residence for C. Roybal. See PSR ¶ 23, at 13. "G. Roybal was identified in the conspiracy early on in the investigation and he was involved in two drug transactions with the CHS-1." PSR ¶ 23, at 13.

The first drug transaction in which G. Roybal was involved occurred on April 5, 2012. See PSR ¶ 24, at 13. This transaction involved G. Roybal meeting with CHS-1 and providing approximately 1.7 pounds of marijuana. See PSR ¶¶ 15, 24, at 10, 13. The next day, on April 5, 2012, CHS-1 met with C. Roybal at a predetermined location to pay $5,540.00 for the marijuana that G. Roybal provided on the previous day. See PSR ¶ 24, at 13. Laboratory reports confirm that the net weight of the marijuana is 622.8 grams. See PSR ¶ 24, at 13.

The second transaction in which G. Roybal was involved took place on April 10, 2012, when CHS-1 was scheduled to meet C. Roybal to purchase one kilogram of cocaine. See PSR ¶¶ 15, 25, at 9, 13. At the meeting location, G. Roybal arrived in a black Chevy Monte Carlo and instructed the CHS-1 to contact C. Roybal by telephone, and to tell him only time and location to meet, and not to discuss the pending transaction. See PSR ¶ 25, at 13. "The CHS subsequently met with C. Roybal at the predetermined location where the CHS paid Roybal $27,000 for approximately 1 kilogram of cocaine." PSR ¶ 25, at 13. Laboratory reports confirm that the net weight of the cocaine is 998.5 grams. See PSR ¶ 25, at 13.

On that same day, G. Roybal delivered one kilogram of cocaine to "the CHS at the residence of the CHS4 ." PSR ¶ 26, at 13. "G. Roybal, who arrived in a black car, walked up to the car and got in the passenger seat and gave the CHS the cocaine." PSR ¶ 26, at 13.

G. Roybal complained his radar detector was not plugged in, so it was not working and he got pulled over by law enforcement on his way over. The CHS took the cocaine into the residence and when the CHS returned the CHS paid G. Roybal $13,000. They counted the money before G. Roybal left. This same CHS provided information that he had been to G. Roybal's residence located at 605 Parkside SE in 2011 and 2012. He described one occasion in 2011, where he observed a large trash bag with overflowing with [sic] one pound packages of marijuana and a backpack with cocaine.

PSR ¶ 26, at 13.

The next day, on April 11, 2012, "a call was intercepted over Roybal Phone 9 between C. Roybal and [Kurt] Gagarin5 ." PSR ¶ 27, at 13. Gagarin informed C. Roybal that he was sending someone to Albuquerque. See PSR ¶ 27, at 13. "Agents believed Gagarin was sending someone to Albuquerque to collect money from C. Roybal for high grade marijuana previously provided to C. Roybal." PSR ¶ 27, at 13. Over the next couple of hours numerous calls were intercepted between C. Roybal and several co-conspirators including CHS-1 and Co-Defendant Jairus Granado. See PSR ¶ 27, at 13. During most of the calls, C. Roybal was attempting to collect money to send back with co-Defendant Chase Cameron6 to San Diego, California to give to Gagarin. See PSR ¶ 27, at 13. "Agents also intercepted two calls to Southwest Airlines reserving two seats to Las Vegas, Nevada for April 11, 2012." PSR ¶ 26, at 13. The reservations were made in the name of G. Roybal and C. Roybal, and C. Roybal reserved them using "buddy passes." PSR ¶ 27, at 13.

On that same day, agents initiated surveillance at the Albuquerque Sunport, and, at 2:51 p.m. agents observed C. Roybal pick up a male later identified as Cameron. See PSR ¶ 28, at 14. After stopping at several locations, they arrived at G. Roybal's residence, 605 Parkside Drive SE in Albuquerque. See PSR ¶ 28, at 14. "[Cesar] Ramirez and G. Roybal were also at the residence." PSR ¶ 27, at 13. They spent some time barbequing before C. Roybal retrieved a large amount of cash from one of the back rooms. See PSR ¶ 28, at 14. "The money was divided between Cameron, C. Roybal and G. Roybal as they drove back to the airport in order to get past security without being questioned regarding the origin of the money." PSR ¶ 27, at 13. Agents observed Cameron meet with C. Roybal and G. Roybal near the gate where Cameron was waiting to board his flight. See PSR ¶ 28, at 14. The three of them then entered the restroom where surveillance was terminated. See PSR ¶ 28, at 14. "Agents next observed G. Roybal and C. Roybal exit the airport without ever boarding a flight." PSR ¶ 27, at 13. It was determined that C. Roybal provided Cameron with $31,500.00 in cash as partial payment toward a $50,000.00 drug debt for high-grade marijuana. See PSR ¶ 28, at 14.

On December 14, 2012, agents executed a search warrant at G. Roybal's residence, located at 605 Parkside Drive SE. See PSR ¶ 28, at 13. Agents did not find any money or drugs at the residence, but they located the following items:

Item Location
                Five cellphones                                   Master bedroom
                1 cellphone                                       Guest bedroom
                A digital scale                                   Kitchen above microwave
                Savage Rifle Model 64 22LR                        Den/Dining room — next to front door
                New England shotgun Padner Model SB1 20 gauge     Master bedroom under bed
                Remmington 700 rifle w/scope 308                  Master bedroom under bed
                Remmington 7400 rifle w/scope 243 & magazine      Master bedroom under bed
                Weatherby Ninety Two shotgun 12 gauge
...

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