United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant John
Wayne Hargrove's (hereinafter Defendant's) Sentencing
Memorandum and Objections to the Presentence Report. (Doc.
183.) Having considered the submissions of counsel and being
fully advised, the Court will overrule Defendant's
February 8, 2016, Border Patrol agents intercepted seven
backpackers near an abandoned trailer home near Rodeo, New
Mexico. (Doc. 1.) Agents arrived at the trailer and found
several vehicles, a school bus, and a tractor. (Id.)
Agents searched the area and found Defendant, Ms. Richter,
and Mr. Silvas-Hinojos inside the cab of a pickup truck.
(Id.) Ms. Richter was in the driver's seat,
Defendant was in the passenger seat, and Mr. Silvas-Hinojos
was behind the passenger seat. (Id.) The pickup
truck contained 297.25 pounds of marijuana. (Id.) A
semi-automatic pistol with seven rounds in the magazine was
on the dashboard and a loaded rifle was behind the seat.
(Id.) The pickup truck was registered to Defendant
and he voluntarily informed the agents of the presence of the
firearms when he was seized. (Id.) Defendant stated
that he had no knowledge of the marijuana, he was in the area
to fish, and he thought the bundles of marijuana were
Indictment charged Defendant with two counts: (1) conspiracy
to commit distribution of 100 kilograms and more of
marijuana, in violation of 21 U.S.C. § 846; and (2)
possession with intent to distribute 100 kilograms and more
of marijuana, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B), and 18 U.S.C. § 2. (Doc. 66.) The Indictment
charged Janelle Richter, Anselmo Eduardo Inzunza-Robles, and
Juan Carlos Nava-Jurado with the same crimes. (Id.)
Mr. Inzunza-Robles was also charged with reentry after
deportation, in violation of 8 U.S.C. §§1326(a) and
(b). (Id.) Ms. Richter, Mr. Inzunza-Robles, and Mr.
Nava-Jurado pleaded guilty pursuant to plea agreements.
(Id.) Defendant proceeded to trial. (Doc. 137.) On
October 18, 2016, a jury convicted Defendant of both counts.
Presentence Report determined Defendant's base offense
level is 24, see U.S.S.G. §2D1.1(a)(5); a
two-level firearm enhancement applies, see §
2D1.1(b)(1); and a two-level decrease applies because
Defendant was a minor participant. See U.S.S.G
§3B1.2(b). Based on a total offense level of 24 and a
criminal history category of I, the guideline imprisonment
range is 51 to 63 months. However, the mandatory minimum
sentence is 60 months, which is greater than the minimum of
the guideline range; therefore, the actual guideline range is
60 to 63 months. See U.S.S.G. §5G1.2(b).
(Presentence Report ¶ 58.)
Sentencing Memorandum and Objections to the Presentence
Report, Defendant contends that he is eligible for the safety
valve reduction and the firearm enhancement is inapplicable.
(Doc. 183.) The Government responds that Defendant is
ineligible for the safety valve reduction and the firearm
enhancement applies. (Doc. 186.)
Defendant is ineligible for the safety valve
convictions are subject to a statutory mandatory minimum
sentence of 60 months. See 21 U.S.C. §§
841(a)(1), (b)(1)(B). However, if it is applicable, the
safety valve provision would permit the Court to sentence
Defendant without regard to the statutory mandatory minimum
and reduce Defendant's guideline offense level by two
points. See 18 U.S.C. § 3553(f); U.S.S.G.
§§ 2D1.1(b)(16), 5C1.2(a).
defendant is eligible for the safety valve reduction if he
meets five criteria: (1) the defendant does not have more
than one criminal history point; (2) the defendant did not
use violence or credible threats of violence or possess a
firearm or other dangerous weapon in connection with the
offense; (3) the offense did not result in death or serious
bodily injury to any person; (4) the defendant was not an
organizer, leader, manager, or supervisor of others in the
offense; and (5) the defendant truthfully provided to the
government all information and evidence the defendant has
concerning the offense or offenses. See 18 U.S.C.
§ 3553(f). If the defendant satisfies all five of the
statutory criteria, the statutory mandatory minimum is
inapplicable and the sentencing guidelines allow for a
two-level reduction in the defendant's base offense
level. See U.S.S.G. §§ 2D1.1(b)(16),
5C1.2(a). The defendant bears the burden of proving that he
is eligible for the safety valve reduction by a preponderance
of the evidence. See United States v. Stephenson,
452 F.3d 1173, 1179 (10th Cir. 2006).
the government acknowledges that Defendant meets four of the
five criteria. The only question at issue is whether
Defendant possessed the firearms “in connection with
the offense.” See 18 U.S.C. § 3553(f)(a);
U.S.S.G. § 5C1.2(a)(2). In making this determination,
“courts have focused on the defendant's conduct,
whether through actual or constructive possession of a
firearm, to determine if the firearm is connected with the
drug trafficking offense . . .” United States v.
Andrade-Vargas, 459 F. App'x 762, 767 (10th Cir.
2012) (unpublished) (citations omitted). The Tenth Circuit
has explained that “a firearm's proximity and
potential to facilitate the offense may be sufficient to
prevent application of the safety valve provision.”
Id. “The mere propinquity of the weapons and
drugs suggests a connection between the two.”
United States v. Payton, 405 F.3d 1168, 1171 (10th
proximity and the potential to facilitate the offense are
present in this case. The firearms were located in the cab of
the pickup truck with Defendant and the marijuana. A
semiautomatic pistol with seven rounds in the magazine was on
the dashboard and a loaded rifle was behind the seat.
Defendant was sitting in the front seat of the pickup truck.
The pickup truck was registered to Defendant and he
voluntarily informed the agents of the presence of the
firearms when he was seized. The presence of the firearms was
not coincidental or entirely unrelated to the drug
transaction. See Payton, 405 F.3d at 1171
(explaining that the proximity of a weapon to narcotics can
demonstrate the necessary connection). Even if the firearms
did not directly facilitate the drug transaction, they
certainly had the potential to do so. Under these
circumstances, Defendant has not met his burden by a
preponderance of the evidence to demonstrate eligibility for
the safety valve. Thus, Defendant is subject to the statutory
mandatory minimum sentence of 60 months.
The Presentence Report correctly applies the ...