United States v. Valdez
| Decision Date | 15 December 2014 |
| Docket Number | No. CR 13–0559–002 JB.,CR 13–0559–002 JB. |
| Citation | 77 F.Supp.3d 1115 |
| Parties | UNITED STATES of America, Plaintiff, v. Nestor VALDEZ a/k/a “Sarge,”, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Damon P. Martinez, United States Attorney, Joel R. Meyers, Cynthia L. Weisman, Shammara Henderson, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.
Stephen D. Aarons, Aarons Law Firm PC, Santa Fe, NM, for the Defendant.
THIS MATTER comes before the Court on: (i) Defendant Nestor Valdez' Sentencing Memorandum, filed September 24, 2013 (Doc. 72)(“Valdez Memo.”); and (ii) the United States' Objection to the Presentence Report and Response to Defendants [sic] Sentencing Memorandum, filed October 3, 2013 (Doc. 78)(“U.S. Memo.”). The Court held a sentencing hearing on October 4, 2013. The primary issues are: (i) whether the Court should apply adjustments for being a minor participant in criminal activity, possessing a dangerous weapon, both, or neither; and (ii) whether the Court should vary Defendant Nestor Valdez' United States Sentencing Guidelines (“U.S.S.G.”) sentencing range downward to counteract the effects of the career-offender guideline. First, the Court agrees with Plaintiff United States of America that Valdez qualifies for the gun-possession enhancement and does not qualify for the minor-participant reduction, even though the Court's subsequent application of the career-offender enhancement renders these adjustments moot. Second, after carefully considering the factors enumerated in § 3553(a), the Court will vary Valdez' sentence downward somewhat to partially, but not totally, counteract the effects of the career-offender guideline; the Court concludes that strict application of the career-offender guideline would lead to “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Thus, although the Guidelines indicate a sentencing range of 188–235 months, the Court will impose a sentence of 96–months imprisonment, as well as four years of supervised release.
The Court takes its facts from the Presentence Investigation Report, disclosed September 6, 2013 (“PSR”), that the United States Probation Office (“USPO”) prepared. On May 2, 2011, officers with the New Mexico State Police Department (“NMSPD”) seized 298.1 grams of methamphetamine from an individual in the area around San Rafael, New Mexico and Grants, New Mexico. See PSR ¶ 10, at 5. The next day, NMSPD officers debriefed the individual from whom the drugs were seized and recruited him to be a confidential source (“CS1”). See PSR ¶ 11, at 5. CS1 indicated that he was traveling from Phoenix, Arizona to San Rafael to deliver methamphetamine to five individuals, including co-Defendant Paul Barker. See PSR ¶ 11, at 5. The NMSPD orchestrated a controlled delivery from CS1 to Barker; according to CS1, Barker was scheduled to receive 226.8 grams of methamphetamine from him, but, during a telephone with CS1 preceding the delivery, Barker increased the amount to 283.5 grams. See PSR ¶ 11, at 6. CS1 met with Barker and delivered the drugs in exchange for $11,600.00 in cash; Barker was arrested shortly afterward. See PSR ¶ 11, at 6.
On May 9, 2011, law enforcement agents used a second confidential source (“CS2”) to purchase heroin from an unknown dealer near San Rafael. PSR ¶ 12, at 6. Upon arrival at the arranged location, two individuals—later identified as Valdez and co-Defendant Leena Martinez—approached CS2. See PSR ¶ 12, at 6. CS2 advised the two that he was looking to buy heroin for his brother, and, in response, Valdez reached into his pants pocket and produced several small bindles of heroin. See PSR ¶ 12, at 6. Valdez gave 0.7 gross grams—later determined to be 0.5 net grams—of heroin to CS2 in exchange for $40.00 in cash. See PSR ¶ 12, at 6. The next day, an undercover officer arranged another drug purchase from Valdez and Martinez, in which the officer paid $350.00 for 5.2 grams of heroin. See PSR ¶ 13, at 6. On May 14, 2012, an undercover officer arranged a purchase of 1.9 grams of methamphetamine for $350.00; on that occasion, Valdez left the area of the drug deal to meet with his source of supply. See PSR ¶ 14, at 6.
On May 22, 2012, an undercover officer negotiated with Valdez and Martinez for the purchase of 2.2 grams of methamphetamine in exchange for $300.00. See PSR ¶ 15, at 6. Shortly after agreeing on the price, a white pickup truck arrived, and Martinez told the undercover officer that Barker was her and Valdez' source of supply. See PSR ¶ 15, at 6. Officers identified the individual driving the truck as Barker. See PSR ¶ 15, at 6. The undercover officer gave the cash to Martinez to give to Barker, and Valdez retrieved a bag containing the methamphetamine from Barker, which he then handed to the undercover officer. See PSR ¶ 15, at 6. The undercover officer conducted similar transactions—with Barker participating indirectly in the transaction—on May 31, 2012, and June 12, 2012, for 2.7 grams and 1.4 grams of methamphetamine, respectively. See PSR ¶¶ 16–17, at 7.
During a purchase on July 3, 2012, Valdez advised the undercover officer that Barker would no longer be doing business with Valdez and Martinez; Valdez told the undercover officer that Barker was angry that the undercover officer was attempting to make contact with him. See PSR ¶ 18, at 7. Shortly afterward, a green Hyundai approached, and a female later identified as Marcela Camacho served as the source of supply for the transaction, providing 4.4 grams of methamphetamine in exchange for $560.00.See PSR ¶ 18, at 7. On August 7, 2012, undercover officers purchased 2.1 grams of heroin from Valdez and Martinez in exchange for $100.00; no source of supply was involved in the transaction. See PSR ¶ 19, at 7.
On October 7, 2012, Valdez and Martinez were stopped in a motor vehicle for a routine traffic stop. See PSR ¶ 20, at 7. After the officer determined that the vehicle was registered to another person and neither occupant had any documentation regarding the vehicle, the officer sought and obtained consent to conduct a perimeter search of the vehicle using a drug-sniffing canine. See PSR ¶ 20, at 7–8. The canine alerted, and the subsequent search revealed a glass pipe with methamphetamine residue in it, several small baggies of marijuana, a clear baggie containing miscellaneous pills, and a .22–caliber pistol containing eight live rounds.1 See PSR ¶ 20, at 8. The firearm was manufactured in Accokeek, Maryland, meaning that it had affected interstate commerce to get to New Mexico. See PSR ¶ 25, at 9. Officers arranged two more buys with Valdez and Martinez, on December 17, 2012, and January 11, 2013, for 5.3 grams and 1.5 grams of methamphetamine, respectively. See PSR ¶¶ 21–22, at 8. No source of supply was present at either meeting. See PSR ¶¶ 21–22, at 8.
On March 5, 2013, Drug Enforcement Administration (“DEA”) agents obtained and executed arrest warrants on Valdez and Martinez. PSR ¶ 23, at 8. After being informed of and waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Valdez admitted that he dealt methamphetamine and heroin, and that he “usually sells up to ... $100 worth.” PSR ¶ 23, at 8. He told investigators that he profits roughly $20.00 for every $100.00 he sells, and that he and Martinez are both heroin addicts and use heroin twice daily. See PSR ¶ 23, at 8. Valdez stated that Barker had supplied him with methamphetamine in the past, but that they have not conducted business together in the past several months. See PSR ¶ 23, at 8. Four days later, while at the Torrance County (N.M.) Correctional Facility, Valdez was discovered to be in possession of heroin and cocaine, which he had smuggled into the jail in his rectum. See PSR ¶ 24, at 8.
Valdez and Martinez “appear to be low-level drug dealers, selling narcotics for profit to support their own drug habit.”
PSR ¶ 26, at 9. Valdez and Martinez are considered low-level drug dealers, while Barker is a mid-level drug dealer. See PSR ¶ 26, at 9. In total, Valdez and Martinez are jointly responsible for the sale of 19.4 grams of methamphetamine and 7.8 grams of heroin. See PSR ¶ 26, at 9.
Valdez' criminal history includes sentences for seven prior crimes: (i) an attempted burglary committed in 1983, at age nineteen, for which he received a sentence of three-years probation; (ii) a driving-while-intoxicated offense committed in 1988, at age twenty, for which he received one day of jail time; (iii) a possession-of-cocaine offense committed in 1989, at age twenty-five, for which he was sentenced to twenty-four-months imprisonment; (iv) a petty larceny committed in 1993, at age twenty-nine, for which he was sentenced to one day in jail; (v) trafficking-cocaine and unlawful-dealing-in-food-coupons offenses committed in 1993, at age twenty-nine, for which he was sentenced to four-years imprisonment; (vi) a distribution-of-marijuana offense committed in 2001, at age thirty-seven, for which he received eighteen-months imprisonment and one-year parole; and (vii) criminal trespass and larceny committed in 2007, at age forty-two, for which he received sixty-six months imprisonment and one-year parole.See PSR ¶¶ 45–51, at 12–14. Valdez was married to the same woman, Stella Valdez, for thirty years, and the couple have three adult children with whom Valdez stays in regular contact. See PSR ¶ 66, at 17.
Valdez pleaded guilty to conspiracy to possess with intent to sell 5 grams or more of methamphetamine pursuant to 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B), and distribution of methamphetamine and aiding and abetting pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). The former conviction carries a mandatory minimum of five years and a maximum sentence of forty years; the latter...
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