United States v. Valencia, CR 12-3182 JB

• Decision Date: 31 December 2015
• Docket Number: No. CR 12-3182 JB,CR 12-3182 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MANUEL VALENCIA, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. MANUEL VALENCIA, Defendant.

No. CR 12-3182 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 31, 2015

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) the Defendant's Sentencing Memorandum and Motion for Variance, filed April 4, 2015 (Doc. 847)("Sentencing Memorandum"); and (ii) the Defendant's Motion to Reduce Sentence, filed May 5, 2015 (Doc. 893). The Court held a sentencing hearing on April 21, 2015, and a hearing on the Motion to Reduce Sentence on September 11, 2015. The primary issues are: (i) whether the Court should grant Defendant Manuel Valencia a mitigating role adjustment under U.S.S.G. § 3B1.2 or a familial relationship reduction under § 2D1.1(b)(16); (ii) whether the Court should vary from the advisory guideline range in fashioning an appropriate sentence for Valencia under 18 U.S.C. § 3553(a); (iii) what fine to impose upon Valencia, who has a total net worth of $230,000.00, but has also agreed to a money judgment in the amount of $28,000.00 as part of his plea agreement in this case; and (iv) whether the Court should reduce Valencia's sentence pursuant to rule 35(b) of the Federal Rules of Criminal Procedure, 18 U.S.C. § 3573, or 28 U.S.C. § 2255. The Court will not grant Valencia a mitigating role adjustment under § 3B1.2, because there is no sound evidence that he is plainly among the least culpable of those involved in the Christopher Roybal Drug Trafficking Organization ("C. Roybal DTO") or less culpable than the average participant in the C. Roybal DTO. Additionally, because the Court has concluded that Valencia is not entitled to a 4-level minimal participant reduction under § 3B1.2(a), he is ineligible for a familial relationship reduction under U.S.S.G. § 2D1.1(b)(16). The Court will also deny Valencia's request for a downward variance from the advisory guideline range in light of the § 3553(a) factors. The Court will impose a fine of $99,801.98, payable at the rate of at least $625.00 per month. Finally, the Court denies Valencia's Motion to Reduce Sentence because: (i) the Court cannot reduce his sentence pursuant to rule 35(b) of the Federal Rules of Criminal Procedure or 18 U.S.C. § 3573, because only Plaintiff United States of America can move to reduce a sentence under those rules or statutes; and (ii) Valencia cannot move to reduce his sentence pursuant to 28 U.S.C. § 2255, because the Court does not construe Valencia's Motion to Reduce Sentence as brought under 28 U.S.C. § 2255.

FACTUAL BACKGROUND

The Court takes its facts from the Presentence Investigation Report, disclosed April 1, 2015 ("PSR"), which the United States Probation Office ("USPO") prepared. The Court will first outline the facts of Valencia's offense. The Court will then briefly describe Valencia's criminal history, his other personal characteristics, and his financial condition.

1. The Offense of Conviction.

In June, 2011, the Federal Bureau of Investigation ("FBI") initiated an investigation code named Operation Rain Check into co-Defendant Christopher Roybal as the sole target. See PSR ¶ 21, at 9. The investigation subsequently identified the C. Roybal DTO, and revealed nineteen individuals were involved in various capacities and roles. See PSR ¶ 21, at 9. Operation Rain Check involved numerous investigative techniques, including multiple controlled purchases ofkilogram-quantities of cocaine and multi-pound purchases of high grade marijuana using a confidential human source ("CHS-1"). PSR ¶ 22, at 9.

The CHS-1 informed agents that C. Roybal was one of the most substantial cocaine dealers in Northern and Central New Mexico. Based on statements made by C. Roybal to the CHS-1, Roybal was distributing approximately 15 kilograms of cocaine each week. C. Roybal also informed the CHS-1 that he was also distributing high grade marijuana. C. Roybal informed the CHS-1 that he was generating $60,000 in cocaine profits on a monthly basis. The investigation identified C. Roybal as the leader of the DTO as he controlled the distribution of money flow on behalf of the Roybal DTO.

PSR ¶ 23, at 9. The FBI's investigation into the C. Roybal DTO revealed that Valencia was involved in the C. Roybal DTO. See PSR ¶¶ 30-31, at 13.

"From on or about January 2012 through on or about April 2012, Valencia was involved in a conspiracy to distribute cocaine in Las Vegas, New Mexico." PSR ¶ 31, at 13. Valencia supplied cocaine to C. Roybal, which C. Roybal, in turn, redistributed. See PSR ¶ 31, at 13. "Valencia frequently communicated with Christopher Roybal on his various cellular telephones." PSR ¶ 31, at 13. Valencia maintained three different telephone numbers during the conspiracy, and during the FBI's investigation, it received authorization to intercept communications over several of C. Roybal's telephones. See PSR ¶ 31, at 13. Several calls were wiretapped between C. Roybal, Valencia, and co-Defendant Anthony Padilla. See PSR ¶ 32, at 13. In the calls, FBI agents learned C. Roybal obtained one kilogram of cocaine from Valencia. See PSR ¶ 32, at 13. Padilla later complained about the quality of the cocaine C. Roybal provided to him, and C. Roybal and Valencia discussed the best way to address Padilla's quality concerns. See PSR ¶ 32, at 13.

2. Valencia's Criminal History up to the Underlying Crime of Conviction.

Valencia has been convicted of two alcohol related offenses. See PSR ¶¶ 51-52, at 15. First, on October 30, 1993, when Valencia was thirty-two years old, he was convicted in MoraCounty for "Driving Under the Influence of Alcohol or Drugs." PSR ¶ 51, at 15. Valencia was sentenced to fines and fees. See PSR ¶ 51, at 15. Regarding this conviction, the PSR provides the following additional information:

The defendant waived counsel. It appears the defendant was also charged with the following offenses: Careless Driving; Assault on a Peace Officer; and Criminal Damage to property. The dispositions of the other charges are unknown.

On October 30, 1993, a traffic stop was conducted on the defendant's vehicle. The defendant performed poorly on standard field sobriety tests and refused to perform other field sobriety tests. He also displayed signs of intoxication. The defendant submitted a breach test that yielded a result of .15BAC. The defendant was arrested. Details of other offenses were not available.

PSR ¶ 51, at 15. Second, on May 12, 1997, when Valencia was thirty-six years old, he was convicted in San Miguel County of "Driving Under the Influence of Alcohol/Drugs." PSR ¶ 52, at 15. Valencia was sentenced to fines and fees. See PSR ¶ 52, at 15. Regarding this conviction, the PSR also states: "Attorney representation is unknown. A charge of Failure to Maintain Traffic Lane was dismissed. On July 23, 1998, a bench warrant was issued for failure to pay fines or costs. The warrant was served on July 28, 1998. On May 17, 2001, all obligations were met." PSR ¶ 52, at 15.

In 1985, Valencia was convicted of two traffic offenses in Amarillo, Texas: (i) speeding (three counts); and (ii) driving without insurance. See PSR ¶ 54, at 16. Valencia was ordered to pay fines and fees. See PSR ¶ 54, at 16. He was also charged with "Defective Tail Lamp," although the disposition for this charge is unknown. PSR ¶ 54, at 16. In 1996, Valencia was convicted of "Careless Driving and Consume/Possess Open Container of Alcoholic Beverage in the San Miguel County Magistrate Court in Las Vegas, New Mexico." PSR ¶ 55, at 16. He was ordered to pay fines and fees, and a charge of "Failure to Maintain Traffic Lane was dismissed." PSR ¶ 55, at 16. Valencia was also arrested on two other occasions for alcohol related incidents.See PSR ¶¶ 57-58, at 16. First, on August 5, 1988, when Valencia was twenty-seven years old, the Colorado State Police; Trinidad, Colorado arrested him in Trinidad for "Driving Under the Influence." PSR ¶ 57, at 16. According to the PSR, information regarding the court, the case number, and the disposition is not available for this arrest. See PSR ¶ 57, at 16. The PSR further states: "The information was obtained from the National Crime Information Center. The United States Probation Office for the District of Colorado conducted a collateral state-wide record check and did not locate record of an arrest in Trinidad, Colorado. Lack of information may be due to the age of the arrest." PSR ¶ 57, at 16. Second, on August 23, 1992, when Valencia was thirty-one years old, the New Mexico State Police; Las Vegas, New Mexico arrested Valencia in an unknown city for "Driving While Intoxicated." PSR ¶ 57, at 16. According to the PSR, information regarding the court, the case number, and the disposition is not available for this arrest. See PSR ¶ 57, at 16. The PSR further states: "The arrest information was obtained from the National Crime Information Center. Arrest and court records were not located for this offense." PSR ¶ 57, at 16.

3. Valencia's Personal Characteristics.

Valencia was born on November 10, 1960 in Las Vegas, New Mexico. See PSR ¶ 60, at 17. Valencia's father is retired from working on gas lines, and his mother is a housewife. See PSR ¶ 60, at 17. They also used to operate a boarding house and continue to reside in Las Vegas. See PSR ¶ 60, at 17. Valencia has five siblings, and reports that he had a good childhood and that his family had enough financially. See PSR ¶¶ 61-62, at 17. Valencia lived with his parents, but spent weekends with his grandfather because he loved being on his grandfather's ranch. See PSR ¶ 62, at 17. As a result, his grandfather helped raise him and legally adopted him, with which his parents did not have an issue. See PSR ¶ 62, at 17.Valencia's father suffers from cardiac issues and has undergone three bypasses/stints. See PSR ¶ 63, at 17. His father will need to have the same surgery again in June 2015. See PSR ¶ 63, at 17. Additionally, Valencia's sister, Olga, suffers from fibromyalgia and his brother, Marvin, "might have...