United States District Court, D. New Mexico
BRAUN, JOEL R. MEYERS, AND KRISTOPHER N. HOUGHTON U.S.
PORI FEDERAL PUBLIC DEFENDER Attorney for Mr. Díaz
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Ángel Ibes
Díaz Rivera's Sentencing Memorandum, filed July
26, 2016, (Doc. 42), and the United States' Objection to
the Presentence Report and Sentencing Recommendation, filed
August 15, 2016 (Doc. 46). The Court held a sentencing
hearing on October 4, 2016. (Doc. 51.) At the sentencing
hearing, the Court accepted the Plea Agreement (Doc. 37), the
factual findings of the Presentence Investigation Report
(Doc. 39), and the First and Second Addenda to the
Presentence Investigation Report (Docs. 48 and 50).
See (Doc. 52 at 20). At that time, the Court
overruled the United States' objection to the Presentence
Investigation Report. The Court sentenced Mr. Díaz to
thirty months of incarceration. (Id. at 20-21.)
sentencing hearing, the Court did not impose a term of
supervised release under U.S.S.G. § 5D1.1(c).
See (Doc. 52 at 20). However, in reviewing the
judgment, the Court now notes that Section 5D1.1(c)'s
instruction that “[t]he [C]ourt ordinarily should not
impose a term of supervised release . . . [if] the defendant
is a deportable alien who likely will be deported after
imprisonment” only applies where the criminal statute
does not require a term of supervised release. In
this case, the applicable criminal statute requires that the
Court impose a three-year term of supervised release as a
result of Mr. Díaz' conviction for possession with
intent to distribute fentanyl. See 21 U.S.C. §
841(b)(1)(C) (“any sentence imposing a term of
imprisonment under this paragraph shall, in the absence of
such a prior conviction, impose a term of supervised release
of at least 3 years in addition to such term of
Court now supplements the sentence as follows: Mr.
Díaz shall be placed on supervised release for a
period of three years. The only condition that will apply to
his term of supervised release is that he cannot reenter the
United States without legal authorization from the United
sentencing hearing, the Court noted that it would provide a
written opinion to supplement its decision to apply a
four-level reduction for Mr. Díaz' minimal role in
the offense under U.S.S.G. § 3B1.2(a) and its decision
to vary below the advisory sentencing guidelines range under
18 U.S.C. § 3553(a). See (Doc. 52 at 21). The
Court provides that opinion below.
sentencing, the Court accepted the factual findings in the
Presentence Investigation Report (PSR). See (Doc.
39) and (Doc. 52 at 20). Neither party objected to the
PSR's factual findings. The Court reviews the facts in
the PSR here, as well as additional facts that Mr.
Díaz presented and that the Court finds credible.
time of his arrest for this offense, Mr. Díaz was 39
years old. (Doc. 39 at 2.) Before then, he had never been
arrested. He has no criminal history. (Id. at
¶¶ 32-37.) For 21 years-more than half of his
life-he had worked as a truck driver, delivering construction
materials throughout Baja California, Mexico. He typically
worked independently as a contractor and earned between
$150.00 and $200.00 each week. (Id. at ¶ 46.)
He used his earnings to support his family, including Marta
Montoya, his 33-year-old wife of nine years, and their
nine-year-old daughter. (Id. at ¶¶ 41 and
66.) Ms. Montoya now works in a bakery. (Id. at
¶ 41.) Most recently, between 2013 and 2015, he hauled
trailers for the Muñoz factory in Tijuana, earning
about $944.67 each month. (Id. at ¶ 47.)
there was not enough work with the Muñoz factory, Mr.
Díaz left his job. (Id.) For the first time
in more than two decades, he was unemployed. For two months,
he looked for work again as a truck driver. Someone referred
him to a man in Tijuana who was seeking a driver. But when he
applied for the job, he learned that the man was actually
looking for people to transport marijuana from San Diego,
California, to New York. (Doc. 42 at 4.) Desperate for money
to support his family, he agreed to a onetime job
transporting drugs on a Greyhound bus. (Doc. 39 at
¶¶ 15-17.) The man in Tijuana promised to pay him
$800 for the one-time trip. (Id. at ¶¶
March 13, 2015, the bus on which Mr. Díaz was
traveling from San Diego made a routine stop at the Greyhound
Bus Station in Albuquerque, New Mexico. DEA agents were at
the station, checking arriving buses. In the cargo area of
the bus, the agents saw a piece of expandable luggage.
According to the agents, the luggage was of the kind that
people often use to transport drugs. The tag on the
expandable luggage showed that it belonged to Mr.
Díaz. (Id. at ¶ 13.)
the DEA agents boarded the bus and spoke with Mr.
Díaz, who said that he had a piece of luggage in the
cargo area of the bus, as well as a backpack. He consented to
a search of his backpack. The agent searched it, finding no
narcotics. The agent then asked for and obtained Mr.
Díaz' consent to search his checked-on luggage in
the cargo area of the bus. A search revealed that the luggage
had a false compartment with two boards in it. In opening the
false compartment, the agent found a clear, heat-sealed
plastic bundle between the two boards. The appearance of the
package was consistent, in the agent's experience, with
the appearance a package of illegal narcotics. The agent
arrested Mr. Díaz. He immediately confessed that he
believed that he had been carrying marijuana and would have
been paid $800 to transport it to New York City. He also
disclosed that he knew little about the man in Tijuana who
had offered him the one-time drug courier job. (Id.
at ¶ 13-16.)
a lab test of the substance in the heat-sealed package
revealed that the controlled substance was not marijuana. Nor
was it a mixture of methamphetamine and cocaine, as the DEA
agent who arrested Mr. Díaz had sworn in an affidavit
that it was, based on the results of a field test.
See (Doc. 1-1 and Doc. 52 at 17). Rather, it was
2.99 net kilograms of fentanyl. (Doc. 52 at ¶ 15-16.)
Court underscores these facts: nothing in the record supports
the view that Mr. Díaz was any more than a very
low-level, one-time courier who had no knowledge of the
larger criminal enterprise above him and had no
decision-making authority. After searching for work as a
truck driver for two months, he applied for a driving job
with a man in Tijuana who instead offered him a one-time job
of transporting marijuana from San Diego to New York. (Doc.
42 at 4.) All of the facts in the record suggest that in a
single act of economic desperation, Mr. Díaz agreed to
transport what he believed to be marijuana-a substance that
turned out to be fentanyl, a drug that even the experienced
DEA agent who arrested him misidentified after a field
test-in a single piece of checked-in luggage on a
cross-country bus trip. Furthermore, in fully and honestly
debriefing with the United States government, Mr. Díaz
provided all of the information and evidence that he had
about the charged offense-which was, apparently, very little.
See (Doc. 46 at 3 and Doc. 48 at 1).
Díaz has been in continuous custody since the DEA
agent arrested him on March 13, 2015. (Id. at 1.)
Procedural Background and Sentencing Arguments
January 22, 2016, Mr. Díaz entered into a plea
agreement with the United States in which he pleaded guilty
to the Indictment (Doc. 13), which charged that he
unlawfully, knowingly, and intentionally possessed with
intent to distribute a Schedule II controlled substance in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
(Doc. 37.) The Indictment charges him with possession with
intent to distribute “a Schedule II controlled
substance” and the Plea Agreement specifies that the
controlled substance was fentanyl. (Docs. 13 and 37.)
preparation for sentencing, the United States Probation
Office filed a Presentence Investigation Report (PSR) on May
23, 2016. (Doc. 39.) Mr. Díaz filed a Sentencing
Memorandum on July 26, 2016, in which he made one formal
objection to the PSR. (Doc. 42.) The United States also filed
one objection to the PSR and made a recommendation for
sentencing on August 15, 2016. (Doc. 46.) The United States
Probation Office responded to Mr. Díaz and the United
States in a First Addendum and Second Addendum to the
Presentence Investigation Report on August 30, 2016, and
September 26, 2016, respectively. (Docs. 48 and 50.)
Court held a Sentencing Hearing on October 4, 2016. At the
hearing, the Court considered arguments from Mr. Díaz
and the United States about the appropriate sentence under
the advisory guidelines and 18 U.S.C. § 3553(a). At that
time, the Court imposed a sentence of 30 months of
incarceration. (Doc. 52 at 20-21.)
Mr. Díaz' Sentencing Arguments and
Díaz made the following arguments in support of his
request for a sentence of 30 months of incarceration. (Doc.
42 at 11.)
Objection to the PSR and the United States' and the
Probation Office's Responses
sentencing memorandum, Mr. Díaz made a single
objection to the PSR. (Doc. 42 at 2.) He urged that he
qualified for a two-level reduction from his base offense
level under U.S.S.G. § 2D1.1(b)(17) because, he argued,
he met all of the criteria for the so-called “safety
valve” set out in 18 U.S.C. § 3553(f) and U.S.S.G.
§ 5C1.2. Specifically, Mr. Díaz noted that he did
not have more than one criminal history point, he did not use
violence or a dangerous weapon when he committed the offense,
the offense did not result in death or serious bodily injury,
he was a minimal participant in the charged offense, and he
truthfully provided to the Government all information and
evidence he had about the charged offense. (Doc. 42 at 2-3.)
The Court notes that Section 5C1.2(a)(4) of the advisory
guidelines does not require that a person be a “minimal
participant, ” but rather requires that the person
“was not an organizer, leader, manager, or supervisor
of others in the offense” and “was not engaged in
a continuing criminal enterprise[.]” Application note 5
defines such a person as one who did not receive an
adjustment for an “aggravating role” under
U.S. Probation Office and the United States agreed that Mr.
Díaz would be eligible for the two-level reduction
under U.S.S.G. § 2D1.1(b)(17). (Doc. 46 at 3 and Doc. 48
at 1.) The Probation Office noted that at the time it had
issued the PSR, Mr. Díaz had not adequately debriefed
with the United States, as required under Section
5C1.2(a)(5), but the Probation Office later confirmed that he
had in fact fully debriefed, making him eligible for the
two-level reduction. (Doc. 48 at 1.)
Mr. Díaz' Sentencing Arguments
Díaz made several arguments about “specific
offender characteristics” in support of his requests
for departures under U.S.S.G. § 5H1.1 (age), §
5H1.5 (employment record), and § 5H1.6 (family ties and
responsibilities). He urged that the same facts also
supported a variance below the advisory sentencing guidelines
range under 18 U.S.C. § 3553(a). He also requested a
departure or variance because of his status as a deportable
person and a departure because of his “extraordinary
acceptance of responsibility.” (Doc. 42 at 7-11.)
respect to his age, employment, and family ties, Mr.
Díaz noted that before he committed this crime, he had
never been involved in the criminal justice system in the
United States or in Mexico. He was 39 when he committed the
crime, which, he urged, meant that his offense was an
“aberrant act” and that “he is less likely
to recidivate.” (Id. at 7.) Mr. Díaz
also argued that despite the fact that he confronted limited
opportunities for employment in Baja California, where rates
of poverty are high, and had a limited education, he
nevertheless maintained stable employment as a truck driver
there for 21 years. (Id. at 8.) He urged that his
incarceration will cause his family to suffer great hardship,
given that he is the primary source of his family's
economic support. His crime was a “desperate attempt to
earn money to support his family while he was
unemployed.” (Id. at 8-9.)
Díaz also argued that his status as a deportable
person is a basis for a departure or a variance.
(Id. at 9.) He noted that because of his immigration
status, he will face an “unwarranted increase in the
severity of his sentence” given that “[h]e will
not be eligible for early release, he will not be able to be
assigned to a minimum security prison[, ] and he will not be
able to obtain any sentence reduction based on his
participation in a residential drug abuse program.”
he argued that a further departure or variance is warranted
given his “extraordinary acceptance of
responsibility.” (Id. at 10.) Specifically,
from the moment that the DEA agent first encountered Mr.
Díaz, he (Mr. Díaz) “cooperated with the
investigation of this offense[, ]” consenting to a
search of his belongings and making a confession, thereby
waiving his rights under the Fourth and Fifth Amendments.
(Id. at 10-11.)
Díaz asked the Court to reduce his offense level by
two levels under Section 2D1.1(b)(17) and then to depart or
vary to a sentence of 30 months. (Id. at 11.) Again,
after Mr. Díaz filed his Sentencing Memorandum and
before sentencing, the Probation Office also agreed that he
was eligible for the two-level reduction under Section
2D1.1(b)(17). (Doc. 48 at 1.)
sentencing, Mr. Díaz' counsel and Mr. Díaz
addressed the Court. Counsel provided an oral reply to the
United States' Objection to the Presentence Report and
Sentencing Recommendation (Doc. 46), discussed further below.
Counsel urged that Mr. Díaz was a minimal participant
in the offense and entitled, as the PSR recommended, to a
four-level reduction from his offense level under U.S.S.G.
§ 3B1.2(a). (Doc. 52 at 6.) Counsel argued that Mr.
Díaz qualified as a minimal participant under the U.S.
Sentencing Commission's guidance because he had no
“proprietary interest in the drugs” and “no
knowledge of the criminal enterprise for which [he was]
working[, ]” and because he was working as a simple
“courier.” (Id. at 6-7.)
addressing the Court, Mr. Díaz apologized for having
committed the offense and explained that he was
“desperate to get money[.]” He said that he
understood that he needs to respect U.S. laws, he planned to
return to his family in Mexico so that he could support them,
and he promised that he would never attempt to traffic drugs
again. (Doc. 52 at 7-8.)
The United States' Sentencing Arguments and
United States made the following arguments in support of its
request for a sentence of 87 months of incarceration and a
term of five years of supervised release. (Doc. 46 at 1.)
Objection to the PSR and Mr. Díaz' and the
Probation Office's Responses
United States made one objection to the Presentence Report.
(Doc. 46 at 3.) Specifically, the government objected to the
U.S. Probation Office's recommendation that Mr.
Díaz receive a four-level reduction for having a
“minimal” role in the offense under U.S.S.G.
§ 3B1.2. (Id.) The United States urged that the
Probation Office had “merely applied the
adjustment” without justifying its application.
(Id.) The government also argued that Mr.
Díaz had not met his burden of proving the propriety
of the role adjustment.
support of its argument, the government cited to four
controlling Tenth Circuit cases that the Court discusses in
its analysis below. (Id. at 3-4) (United States
v. Ayers, 84 F.3d 382 (10th Cir. 1996); United
States v. Carter, 971 F.2d 597 (10th Cir. 1992);
United States v. Martinez, 512 F.3d 1268 (10th Cir.
2008)); see also (Doc. 52 at 8) (citing to
United States v. Eckhart, 569 F.3d 1263 (10th Cir.
2009), another controlling case, discussed below).
government alleged that after the DEA arrested Mr.
Díaz, he “provided a self-serving statement that
he was unaware of the exact contents of the package he was
delivering.” (Doc. 46 at 3) What is more, the
government urged, even assuming that Mr. Díaz was
merely a courier, his status as a courier does not entitle
him to a “minimal” role adjustment. Couriers, the
government argued, are indispensable to drug trafficking
organizations. (Id. at 3-4.)
discussed above, Mr. Díaz argued at sentencing that he
was entitled to minimal role adjustment. The Probation
Office, too, in its response to the United States, noted that
Mr. Díaz “acted on the opportunity to make quick
money[, ]” “believed that he was carrying
marijuana[, ]” and had no knowledge of “the
structure or enterprise of the drug trafficking
business.” (Doc. 50 at 1.)
United States then considered several of the factors under 18
U.S.C. § 3553(a) in urging the Court to sentence Mr.
Díaz at the high end of the advisory Guidelines range.
The United States specifically recommend a sentence of 87
months, using an offense level of 27 (again, because the
government disagrees that Mr. Díaz is entitled to a
four-level minimal role adjustment).
Seriousness of the Offense
respect to the seriousness of the offense under 18 U.S.C.
§ 3553(a)(2)(A), the United States urged that the
country is in a “fentanyl crisis” and that the
amount of fentanyl that Mr. Díaz was carrying was the
equivalent of “[three] million potentially lethal
doses[.]” (Doc. 46 at 7.)
History and Characteristics of Mr. Díaz
respect to Mr. Díaz' history and characteristics
under 18 U.S.C. § 3553(a)(1), the United States argues
that Mr. Díaz “cho[se] the citizens of the
United States as the potential victims of his crime”
and that in committing the offense he was looking for
“‘quick money'” “at the expense
of the many people who suffer from substance abuse in the
United States[.]” (Doc. 46 at 7-8) (internal citation
omitted). The government also rejected Mr. Díaz'
arguments in support of a variance based on his status as a
deportable person and his acceptance of responsibility.
(Id. at 8.)
Respect for the Law and Just Punishment
government argued that a high-end sentence of 87 months was
“needed ‘to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment for the offense.'” (Id. at 9)
(citing 18 U.S.C. § 3553(a)(2)(A)).