United States v. Serna, CR 18-3321 JB

• Decision Date: 16 July 2019
• Docket Number: No. CR 18-3321 JB,CR 18-3321 JB
• Citation: 405 F.Supp.3d 1107
• Parties: UNITED STATES of America, Plaintiff, v. William SERNA, Defendant.
• Court: U.S. District Court — District of New Mexico

405 F.Supp.3d 1107

UNITED STATES of America, Plaintiff,

v.William SERNA, Defendant.

No. CR 18-3321 JB

United States District Court, D. New Mexico.

Filed July 16, 2019

John C. Anderson, United States Attorney, Thomas A. Outler, Peter J. Eicker, Assistant United States Attorneys, United States Attorney’s Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

D. Eric Hannum, D. Eric Hannum, Attorney, Albuquerque, New Mexico, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant’s Objections to PSR and Sentencing Memorandum, filed June 26, 2019 (Doc. 49)("Objections"). The primary issue is whether the Court should apply the 4-level enhancement of United States Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sentencing Comm'n 2018)("U.S.S.G."), for possession of a firearm in connection with another felony offense as the United States Probation Office ("USPO") applies in paragraph 21 of the Presentence Investigation Report, filed May 29, 2019 (Doc. 46)("PSR"). See PSR ¶ 21, at 5. The Court will apply the 4-level enhancement.

The Court briefly recites the case’s facts and the parties' arguments. Defendant William Serna pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See Conditional Plea Agreement ¶ 6, at 3, filed March 29, 2019 (Doc. 44)("Plea Agreement"). Serna was discovered to possess firearms after a Bureau of Alcohol, Tobacco, Firearms and Explosives and Albuquerque Police Department officer (the "ATF/APD officer") interrupted, in Robinson Park in Albuquerque, New Mexico, a hand-to-hand transaction that resembled a narcotics exchange. See PSR ¶¶ 9-10, at 3-4. Serna argues that the 4-level enhancement does not apply, because no felony drug trafficking offense occurred and because no evidence exists that Serna transferred narcotics to another person. See Objections at 2. According to the USPO, the ATF/APD officer observed Serna engaged in a hand-to-hand transaction "consistent with illegal narcotics transactions." Addendum to Presentence Report at 1, filed June 27, 2019 (Doc. 50)("Addendum"). See PSR ¶¶ 9-10, at 3. The USPO adds that the 4-level increase applies, although no "actual evidence" supports that Serna was trafficking drugs, Objections at 2, because Serna "was in possession of several baggies filled with methamphetamine, which were field tested and came back presumptive for methamphetamine, weighing 5.2 grams," Addendum at 1-2. Plaintiff United States of America argues that sufficient evidence exists that the Court can conclude by a preponderance of the evidence that Serna committed a felony drug trafficking offense, because

he was known to police as a drug trafficker, he was seen in a hand-to-hand transaction with another individual in a high-volume drug trafficking area, he was holding more than 5 grams of methamphetamine separated into baggies in the same backpack where he had one of two firearms, and he was indicted in state court for drug trafficking as well as possession.

United States' Sentencing Memorandum at 2-3, filed July 12, 2019 (Doc. 51)("U.S. Memo."). The United States argues that the Court does not need to conclude that Serna committed a felony drug trafficking offense, because the enhancement applies if the Court concludes that Serna committed a felony drug possession offense. See U.S. Memo. at 2-3. The United States cites United States v. Tobanche, 115 F. Supp. 3d 1339, 1350 (D.N.M. 2015) (Browning, J.), aff'd, 643 F. App'x 781 (10th Cir. 2016) (unpublished), to argue that the Court should apply the 4-level enhancement even though Serna was not convicted of methamphetamine possession. See U.S. Memo. at 2.

Section 2K2.1(b)(6)(B) provides for a 4-level enhancement "[i]f the defendant ... used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B). "[A]nother felony offense" "means any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained." U.S.S.G. § 2K2.1 cmt. 14(C). See United States v. Gross, No. CR 16-0454 JB, 2016 WL 9021829, at *15 (D.N.M. Dec. 16, 2016) (Browning, J.)("An enhancement under § 2K2.1(b)(6) may be applied even though the felony in connection with which the firearm is possessed was not an offense for which the defendant was convicted. (citing United States v. Gambino-Zavala, 539 F.3d 1221, 1230 n.3 (10th Cir. 2008) )). Application note 14(A) to U.S.S.G. § 2K2.1 specifies that the use or possession is "in connection with" another felony offense "if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense." U.S.S.G. § 2K2.1 cmt. 14(A). The United States Court of Appeals for the Tenth Circuit has explained: "The plain and commonly understood meaning of ‘facilitate’ is to make easier." United States v. Marrufo, 661 F.3d 1204, 1207 (10th Cir. 2011).

Regarding the connections between firearms and felony drug trafficking offenses, the Court has previously noted:

The Tenth Circuit has held on several occasions that physical proximity between a weapon and narcotics can be sufficient to satisfy § 2K2.1(b)(6). See, e.g., United States v. Bunner, 134 F.3d 1000, 1006 (10th Cir. 1998) ; United States v. Gomez-Arrellano, 5 F.3d 464, 467 (10th Cir. 1993). In United States v. Bunner, the Tenth Circuit explained how physical proximity could establish a nexus between a handgun and a drug trafficking offense: "Handguns are widely recognized as a tool of the drug dealers['] trade. Accordingly, a weapon’s proximity to narcotics may be sufficient to provide the nexus necessary to enhance a defendant’s sentence under § 2K2.1(b)(5)."¹ 134 F.3d at 1006.

United States v. Gross, 2016 WL 9021829, at *14 (footnote in original). The Court has applied a § 2K2.1(b)(6)(B) enhancement for federal drug trafficking offenses where a defendant possessed a firearm in proximity to drug trafficking activities. See United States v. Tobanche, 115 F. Supp. 3d at 1360 61 (stating that evidence of drug trafficking existed where the defendant possessed a trafficking amount of methamphetamine -- 105.4 grams -- in the car that he drove, the methamphetamine was lying within the defendant’s reach in the car’s backseat, the defendant had rummaged for "nearly seventeen minutes" among the items in his backseat, the defendant had a history of convictions for drug offenses, the defendant had several guns in close proximity to him, and someone shot the defendant while he sat in the car with the methamphetamine, and applying § 2k2.1(b)(6)(B) ); United States v. Pacheco, No. CR 13-2643 JB, 2014 WL 3421063, at *14 (D.N.M. July 8, 2014) (Browning, J.)(reasoning that § 2K2.1(b)(6)(B) applied where the defendant had a firearm, heroin, and digital scales in his trailer, because the firearm might protect the defendant "and his drug supply").

The Court concludes that the evidence supports by a preponderance of the evidence that Serna engaged in a drug trafficking offense. See United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (explaining that the preponderance of the evidence standard applies to sentencing proceedings). Distribution of or possession with the intent to distribute of more than five grams of methamphetamine is a federal felony offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). "Intent to distribute can be inferred from a number of factors accompanying possession, including (1) the quantity, purity, and value of the drugs possessed; (2) the manner in which the drugs are packaged; (3) the presence of firearms (as common tools of the trade); and (4) the presence of large sums of money." United States v. Waterbury, 206 F. App'x 805, 810 (10th Cir. 2006) (unpublished)² (citing United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000) ; United States v. Wilson, 107 F.3d 774, 779 (10th Cir. 1997) ; United States v. Wood, 57 F.3d 913, 918-19 (10th Cir. 1995) ). Here, the ATF/APD officer observed Serna engaged in a hand-to-hand transaction in Robinson Park, which has a reputation as a site for drug trafficking, and the hand-to-hand transaction resembled a narcotics exchange. See PSR ¶ 9, at 3. See also Memorandum Opinion and Order ¶¶ 9-23, 28, at 3, 6, ––– F.Supp.3d ––––, –––– – ––––, 2019 WL 1506541, at *2-3, filed April 5, 2019 (Doc. 45). Serna had a loaded SCCY, model CPX-2, 9mm caliber, semiautomatic pistol, in his pocket. See PSR ¶¶ 10, 12-13, at 3-4; Plea Agreement ¶ 7, at 3. In his backpack, Serna had a ".22 caliber handgun and approximately 100 rounds of .22 ammunition." Plea Agreement ¶ 7, at 3. See PSR ¶¶ 11, 13, at 4. See United States v. Tobanche, 115 F. Supp. 3d at 1360 (treating the possession of firearms as evidence of drug trafficking). At the time of his arrest, Serna carried several baggies on his person which a field test revealed as presumptive for methamphetamine and which contained a total of 5.2 grams of the substance. See PSR ¶ 11, at 4. In the Court’s view, this test result satisfies by a preponderance of the evidence that the substance was methamphetamine. Although the Court has less evidence on which to conclude that Serna was engaged in drug trafficking than the Court had on which to decide United States v. Tobanche and United States v. Pacheco, the Court reasons that Serna’s possession of the methamphetamine and of the two firearms, and the ATF/APD officer’s observation of a hand-to-hand transaction "consistent with" a narcotics transaction in Robinson Park make more likely than not that Serna engaged in drug trafficking. PSR ¶ 9, at 3.

The Court concludes further by a...