United States v. Ulibarri, CR 12–3182 JB.
| Decision Date | 15 July 2015 |
| Docket Number | No. CR 12–3182 JB.,CR 12–3182 JB. |
| Citation | 115 F.Supp.3d 1308 |
| Parties | UNITED STATES of America, Plaintiff, v. Kenneth ULIBARRI, Defendant. |
| Court | U.S. District Court — District of New Mexico |
115 F.Supp.3d 1308
UNITED STATES of America, Plaintiff,
v.
Kenneth ULIBARRI, Defendant.
No. CR 12–3182 JB.
United States District Court, D. New Mexico.
Filed July 15, 2015.
Damon P. Martinez, United States Attorney, Joel R. Myers, Shana Long, Cynthia Weisman, Stephen R. Kotz, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorney for the Plaintiff.
Douglas E. Couleur, Santa Fe, New Mexico, Attorney for the Defendant.
UNSEALED MEMORANDUM OPINION AND ORDER1
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the Amended Objections to PSR [and]
Sentencing Memorandum, filed May 6, 2015 (Doc. 894)("Amended Objections").2 The Court held a sentencing hearing on May 12, 2015. The primary issues are: (i) whether the Court should apply an 8–level adjustment under § 2J1.2(b)(1)(B) of the United States Sentencing Guidelines to Defendant Kenneth Ulibarri's base offense level of 15; and (ii) whether the Court should strike mention of K. Ulibarri's distribution-of-heroin arrest in case number CR 14–2211 MV from paragraph 70 under "Other Arrests" of the Presentence Investigation Report, disclosed April 16, 2015 ("PSR"), that the United States Probation Office ("USPO") prepared.3 First, the Court will not apply § 2J1.2(b)(1)(B), because K. Ulibarri's offense did not involve threatening to cause physical injury to confidential human source 2 ("CHS–2") to obstruct the administration of justice. Second, the Court will not strike K. Ulibarri's distribution-of-heroin charge from paragraph 70 of the PSR, because the Guide to Judiciary Policy requires the USPO to include all prior criminal history in the PSR, because the PSR specifies that the circumstances of K. Ulibarri's distribution-of-heroin charge are the same as that in this case, and because K. Ulibarri will not suffer any prejudice if the Court leaves that information in paragraph 70 of the PSR.
FACTUAL BACKGROUND
The Court takes its facts from: (i) the PSR; (ii) the Sealed Response to Defendant Kenneth Ulibarri's Amended Objections to PSR [and] Sentencing Memorandum at 2, filed May 8, 2015 (Doc. 902)("Response"); and (iii) the Indictment, filed December 12, 2012 (Doc. 2)("Indictment").4 In June, 2011, the Federal Bureau of Investigation ("FBI") initiated an investigation codenamed Operation Rain Check into co-Defendant Christopher Roybal's drug-trafficking organization ("Roybal DTO"). PSR ¶ 10, at 5. Operation Rain Check involved numerous investigative techniques, including multiple controlled purchases of kilogram-quantities of cocaine and marijuana using CHS–2. See Response at 2. During the course of the controlled purchases, CHS–2 met with and received drugs from co-Defendant George Roybal, who is K. Ulibarri's uncle, and co-Defendant Jonathon Ulibarri, who is K. Ulibarri's brother. See Response at 2. Operation Rain Check culminated in a nineteen-defendant indictment that Plaintiff United States of America filed in December, 2012. See Indictment at 1. K. Ulibarri was not part of the Roybal DTO and Operation Rain Check did not target him. See PSR ¶ 10, at 5. Accordingly, although the Indictment charged J. Ulibarri
with a number of offenses, see Indictment at 1–2, it did not assert any charges against or mention K. Ulibarri.
After the takedown for Operation Rain Check, one of the co-Defendants in that case ("CHS–1") agreed to cooperate with the United States. Response at 2. As part of CHS–1's cooperation, CHS–1 executed numerous controlled purchases of drugs with a variety of targets, including K. Ulibarri See Response at 2. In May, 2014, the FBI began a separate investigation into K. Ulibarri's drug-trafficking activities. See PSR ¶ 10, at 5. On May 5, 2014, CHS–1 approached K. Ulibarri to buy illegal drugs from him. See PSR ¶ 11, at 5. K. Ulibarri offered to sell CHS–1 methamphetamine and heroin. See PSR ¶ 11, at 5. During that conversation, K. Ulibarri also told CHS–1 that he and several other people were interested in hiring a "hitman" to kill CHS–2. PSR ¶ 11, at 5. K. Ulibarri told CHS–1 that he knew of someone who would kill CHS–2 for $20,000.00. See PSR ¶ 11, at 5. K. Ulibarri further indicated that he had collected about $8,000.00 from several people, and that others had agreed to give him $7,000.00 more for the hitman after the murder was completed. See PSR ¶ 11, at 5. K. Ulibarri asked CHS–1 to contribute the remaining $5,000.00 for the hitman. See PSR ¶ 11, at 5. CHS–1 told K. Ulibarri that "the money could be paid from the proceeds earned from selling drugs." PSR ¶ 11, at 5.
On May 16, 2015, FBI agents used CHS–1 to conduct a controlled buy of heroin from K. Ulibarri. See PSR ¶ 12, at 5. The agents gave CHS–1 a recording device and $3,000.00, and instructed CHS–1 to buy four ounces of heroin from K. Ulibarri. See PSR ¶ 12, at 5. CHS–1 met K. Ulibarri and bought the heroin from him for $800.00 per ounce.5 See PSR ¶ 12, at 5. After the transaction, CHS–1 provided the FBI agents with four individually wrapped balls of a brown substance that field-tested positive for heroin. See PSR ¶ 12, at 5.
On May 21, 2014, CHS–1 met with FBI agents to plan a controlled drug transaction with K. Ulibarri. See PSR ¶ 13, at 5. The agents gave CHS–1 a recording device and $1,000.00 for CHS–1 to contribute to the hired murder of CHS–2. See PSR ¶ 13, at 5. CHS–1 then met with K. Ulibarri, and they discussed the hired murder. See PSR ¶ 13, at 5. K. Ulibarri offered a deal with CHS–1, in which CHS–1 could pay him the remaining balance towards the hitman after the murder was completed. See PSR ¶ 13, at 5.
On June 4, 2014, CHS–1 met with K. Ulibarri to buy eight ounces of heroin from him that CHS–1 had previously ordered. See PSR ¶ 14, at 5. K. Ulibarri arrived at a pre-determined location and told CHS–1 to follow him.See PSR ¶ 14, at 5. As they left, FBI agents directed CHS–1 to pull away from K. Ulibarri. See PSR ¶ 14, at 5. Detectives6 then attempted to conduct a traffic stop of K. Ulibarri, but K. Ulibarri refused to stop. See PSR ¶ 14, at 5. While K. Ulibarri was driving away, FBI agents observed a brown fluid—later determined to be heroin—being thrown from the driver's
side window of K. Ulibarri's vehicle. See PSR ¶ 14, at 5.
K. Ulibarri continued to drive around and eventually pulled into a drug store, where he bought a bottle of lotion. See PSR ¶ 15, at 5. Agents arrested K. Ulibarri as he exited the store. See PSR ¶ 15, at 5. K. Ulibarri admitted to the agents that he had concealed the heroin in his rectum, and the agents gave him an opportunity to remove it on his own. See PSR ¶ 15, at 5. Instead of pulling the bag out, however, K. Ulibarri removed the heroin from the plastic bag while in his rectum—leaving one or two ounces of unwrapped heroin inside his rectum. See PSR ¶ 15, at 5. Concerned that K. Ulibarri might overdose from the heroin, the agents arranged for K. Ulibarri to be taken to the hospital to remove it. See PSR ¶ 15, at 5. Laboratory testing determined that the heroin which K. Ulibarri sold to CHS–1 weighed 100.6 grams. See PSR ¶ 16, at 6. After the FBI tested the heroin, less than 100 grams of the heroin remained; as a result, K. Ulibarri "was unable to independently weigh the heroin." PSR ¶ 16, at 6.
PROCEDURAL BACKGROUND
The Second Superseding Indictment, filed September 9, 2014 (Doc. 626) ("Superseding Indictment"), added K. Ulibarri to the original Indictment against the members of the Roybal DTO, alleging that: (i) K. Ulibarri attempted to kill CHS–2 by collecting money to hire a hitman to kill CHS–2, with the intent to prevent CHS–2's attendance and testimony at Roybal's trial, in violation of 18 U.S.C. § 1512(a)(1)(A) ; and (ii) K. Ulibarri distributed 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). See Superseding Indictment at 29–30. On January 9, 2015, K. Ulibarri pled guilty to one count of obstruction of justice,7 in violation of 18 U.S.C. § 1512(c), and one count of distribution of heroin, in violation of §§ 841(a)(1), (b)(1)(C). See Plea Agreement ¶ 3, at 2, filed January 9, 2015 (Doc. 728)("Plea Agreement"). Among other things, the Defendant's Admission of Facts in the Plea Agreement states:
In May 2014, I met with a confidential source (CHS1) to discuss selling heroin to CHS1. In those meetings, I told CHS1 that I and some others were hiring a hitman to kill another confidential source (CHS2) for $20,000. CHS2 is a testifying cooperator in the underlying case (12–cr–3182). I explained to CHS1 that some people had contributed money towards the hit. I further explained that some others had promised to pay money after the hit was committed. Between the cash and the promised monies, I told CHS1 that I still needed additional money towards the hit (approximately
$5,000 to $8,000). I explained to CHS1 that CHS1 could pay half of the money after the hit. During a meeting on May 21, 2014, at the direction of FBI agents, CHS1 paid me...
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