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United States v. Rivera

United States District Court, D. New Mexico

March 17, 2017



          BRIAN PORI FEDERAL PUBLIC DEFENDER Attorney for Mr. Díaz



         THIS 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.)

         At the 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 imprisonment”).

         The 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 States government.

         At the 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.

         I. Factual Background

         At 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.

         At the 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.)

         When 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 ¶¶ 15-16.)

         On 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.)

         One of 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.)

         Later, 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.)

         The 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).

         Mr. Díaz has been in continuous custody since the DEA agent arrested him on March 13, 2015. (Id. at 1.)

         II. Procedural Background and Sentencing Arguments

         On 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.)

         In 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.)

         The 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.)

         a. Mr. Díaz' Sentencing Arguments and Request

         Mr. Díaz made the following arguments in support of his request for a sentence of 30 months of incarceration. (Doc. 42 at 11.)

         i. Objection to the PSR and the United States' and the Probation Office's Responses

         In his 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 Section 3B1.1.

         The 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.)

         ii. Mr. Díaz' Sentencing Arguments

         Mr. 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.)

         With 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.)

         Mr. 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.” (Id.)

         Finally, 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.)

         Mr. 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.)

         At 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.)

         In 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.)

         b. The United States' Sentencing Arguments and Request

         The 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.)

         i. Objection to the PSR and Mr. Díaz' and the Probation Office's Responses

         The 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.

         In 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).

         The 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.)

         As 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.)

         ii. Sentencing Arguments

         The 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).

         A. Seriousness of the Offense

         With 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.)

         B. History and Characteristics of Mr. Díaz

         With 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.)

         C. Respect for the Law and Just Punishment

         The 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)).

         D. ...

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