United States v. Tarango
| Decision Date | 29 October 2015 |
| Docket Number | No. CR 07-2443 JB,CR 07-2443 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DANIEL TARANGO, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Defendant's Sealed Motion to Reduce Sentence, filed February 26, 2015 (Doc. 220)("Motion"). The Court held a hearing on August 26, 2015. The primary issues are: (i) whether the Court may reduce the 92-month sentence it imposed on Defendant Daniel Tarango in 2012 because of a subsequent, retroactive reduction in the applicable United States Sentencing Guidelines ("Guidelines") when it made errors in calculating the Guidelines range in Tarango's favor; and (ii) whether it should reduce this sentence in light of the factors set forth in Section 3553(a). The Court concludes that it may reduce the sentence, because 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10 constrain its ability to revisit its original sentencing errors and Tarango is otherwise eligible for the reduction. While the Court respects the new changes to the Guidelines, it has reservations about their retroactive application after it spent so much time sentencing Tarango in 2012. Given Tarango's post-sentencing conduct and Plaintiff United States of America's non-opposition, and given that the retroactive reduction expresses the political will of the Executive Branch, the United States Congress, and the United States Sentencing Commission, the Court finds it appropriate to reduce his sentence. The Court will thus grant the Motion and sentence Tarango to 73-months' incarceration.
The Court takes its facts from: (i) the Presentence Investigation Report ("PSR"), disclosed June 8, 2010; (ii) the Plea Agreement, filed December 18, 2009 (Doc. 145)("Plea Agreement"); (iii) the United States' Sentencing Memorandum and Motion for Departure Pursuant to [REDACTED]/18 U.S.C. § 3553(e), filed January 5, 2012 (Doc. 195)("Sentencing Memorandum"); (iv) the Amended Response to Defendant Daniel Tarango's Amended Sealed Motion to Reduce Sentence, filed August 25, 2015 (Doc. 227)("Pre-Hearing Response"); and (v) the Transcript of First Sentencing Hearing (taken January 31, 2012)(Doc. 230)("First Hearing Tr.").
In January, 2007, the Federal Bureau of Investigation ("FBI") began an investigation into a drug trafficking network involving Defendants Daniel Tarango ("Tarango"), his brother Josue Tarango,1 Keith Salazar, and Levi Countryman. See PSR ¶ 9, at 5. The investigation determined that Tarango's network distributed large quantities of methamphetamine, cocaine, and marijuana throughout the Four Corners area of New Mexico. See PSR ¶ 9, at 5. Tarango later admitted that his organization distributed as many as thirty pounds of methamphetamine every month. See First Hearing Tr. at 59:22-24 (Swainston, Tarango).
The FBI also found that Tarango purchased sensitive and confidential police information from Salazar and Countryman to obstruct law enforcement investigations into his operations. See Plea Agreement ¶ 8(c), at 6. Salazar was a full-time New Mexico State Police detective and member of the Region II Narcotics task force investigating Tarango's organization. See PSR ¶ 10, at 5. Salazar provided confidential information to Countryman, a former New Mexico Sheriff's Deputy, who then passed it along to Tarango. See PSR ¶ 9, at 5. Tarango, in turn, paid Salazar roughly $1,000.00 per month in cash through Countryman. See PSR ¶ 28, at 11.
Tarango received information including the identity of undercover officers and informants; the date, time, and location of pending search warrants; and even the identities of law enforcement officers' family members. See PSR ¶ 9, at 5. Much of the information allowed him to avoid arrest. When the Drug Enforcement Administration ("DEA") told Salazar that the agency would focus on Tarango and his organization, for example, Salazar quickly informed Tarango that he was a specific target and warned him to dump his phone to avoid a wiretap. See PSR ¶ 49, at 5. Countryman educated Tarango on police methods used for drug purchases with confidential informants. See PSR ¶ 43, at 15. FBI and DEA agents decided to intervene after Countryman and Tarango discussed surveillance on a Sheriff's Deputy's wife and children. See PSR ¶ 50, at 19.
On December 7, 2007, FBI and DEA agents executed a search warrant on two properties that Tarango controlled in Farmington, New Mexico. See PSR ¶¶ 52-57, at 19-21. They attempted to arrest Tarango, but he escaped on foot and eventually crossed the border into Mexico. See Sentencing Memorandum at 1. The agents' search uncovered six firearms,ncluding two Kalashnikov2 assault rifles, and "2 bags of [a] crystal substance." PSR ¶ 61, at 22-23. The agents submitted the substance and baggies to the DEA for analysis. By the time the substance arrived at the DEA's laboratory, the two bags and two baggies had been placed in a single heat-sealed KAPAC evidence bag.3 See DEA Report of Drug Property Collected, Purchased, or Seized, filed August 25, 2015 (Doc. 227-1). The DEA Laboratory combined the contents of the two bags, which amounted to 1,289 grams: 296.4 grams of methamphetamine and 992.6 grams of other substances. See PSR ¶ 61, at 22.
Tarango self-surrendered at the Port of Entry in El Paso, Texas on April 3, 2009. See PSR ¶ 62, at 26. He said that he returned to the United States to reunite with his wife and children. See First Hearing Tr. at 63:22-64:1 (Swainston). The United States has stated that he was fleeing assassination attempts, including a May, 2008 shooting that destroyed his Cadillac Escalade. See First Hearing Tr. at 46:17-25 (Swainston).
[REDACTED].
Tarango pled guilty to conspiracy to distribute methamphetamine on December 18, 2009. The Court added enhancements [REDACTED] and varied 5 months below the low end of the resulting Guidelines range to sentence Tarango to 92-months' imprisonment. Tarango now moves to reduce his sentence under recent amendments to the Guidelines that retroactivelyreduced the base-offense levels applicable to certain drug offenses. The United States disputes his eligibility for a reduction.
A federal grand jury indicted Tarango, Salazar, and Countryman on December 5, 2007. The Indictment charged the three defendants with: (i) conspiracy to distribute a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); and (ii) use of a telephone to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b). See Indictment at 1, 8, filed December 5, 2007 (Doc. 1). On December 18, 2007, a federal grand jury issued a Superseding Indictment charging the same defendants with the same offenses. See Superseding Indictment at 1, 8, filed December 18, 2007 (Doc. 32).
On December 18, 2009, Tarango pled guilty to count one of the five-count Superseding Indictment. See Plea Agreement ¶ 8(b), at 5. The plea agreement stated that the base offense level would be determined by the drug quantity, which it stated as "1.289 kilograms of a mixture and substance containing methamphetamine, and 296.4 grams of methamphetamine actual." Plea Agreement ¶ 10(b), at 8. Tarango waived his right to "appeal any sentence within the applicable guideline range as calculated by the Court." Plea Agreement ¶ 13, at 9. The parties also agreed that the Court was the final arbiter of the appropriate base offense level. See Plea Agreement ¶ 10(b), at 8.
The June 8, 2010 PSR measured the quantity of methamphetamine by the weight of the mixture (1.289 kilograms) rather than the weight of the pure methamphetamine alone (296.4 grams). See PSR ¶ 62, at 26. Noting that the offense involved between 500 and 1,500 grams of a mixture including methamphetamine, the PSR "establishe[d] a base offense level of 32." PSR¶ 69, at 27. Neither the United States nor Tarango objected to this determination. See Transcript of Second Hearing at 12-13 (taken August 26, 2015)("Second Hearing Tr.").4
The Court held a sentencing hearing on January 31, 2012. See First Hearing Tr. at 1:8-10. It reviewed the PSR's factual findings and Guidelines calculations, and adopted them as its own, stating that the defendant was involved in a "conspiracy to distribute 1.289 kilograms of a mixture and substance containing methamphetamine." First Hearing Tr. at 111:9-10 (Court).
The Court then added 6 levels of enhancements: 2 for possession of a firearm in connection with the offense, 2 for Tarango's role as an organizer, and 2 for obstruction of justice. See First Hearing Tr. at 22:17-111:20 (Court). It subtracted 3 levels for Tarango's acceptance of responsibility. See First Hearing Tr. at 56:23-57:8 (Court). These adjustments left Tarango with a total offense level of 35 and a criminal history category of I, resulting in an advisory range from 168 to 210 months. See Pre-Hearing Response at 2; First Hearing Tr. at 57:6-8 (Court).
[REDACTED]. The Court then denied several of the defendant's requests for downward departures based on his personal history, noting that his case "continues to fit squarely within the heartland of cases that the federal court sees." First Hearing Tr. at 114:5-11 (Court).
The Court then weighed various factors counseling for and against an additional variance below 97 months. [REDACTED]. It [REDACTED] recognized his poverty, lack of education, and drug-addict father's abuse, adding that "if he had not been disadvantaged as a child we might not be here today." First Hearing Tr. at 115:22-23 (Court). The Court remarked that "a lot of people are rehabilitating very hard before they appear for this day," but mentioned some of Tarango's positive qualities and his post-arrest rehabilitation. First Hearing Tr. at 117:12-21(Court). Finally, it noted his strong family connections and lack of a documented criminal history. See First Hearing Tr. at 118:6-24 (Court).
The Court also listed [REDACTED] factors counseling against a variance....
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