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United States v. Martinez

United States District Court, D. New Mexico

August 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCOS A. MARTINEZ, Defendant.

          James D. Tierney Acting United States Attorney Timothy S. Vasquez Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Stephen D. Aarons Aarons Law Firm, P.C. Santa Fe, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Sentencing Memorandum, filed November 12, 2015 (Doc. 85)(“Objections”). The Court held sentencing hearings on December 17, 2015, and on February 14, 2017. The primary issues are: (i) whether, under § 2D1.1(b)(12) of the United States Sentencing Guidelines (“U.S.S.G.”), the Court should apply a 2-level enhancement to Defendant Marcos A. Martinez' offense level, because he maintained an automotive body shop for the purpose of distributing controlled substances; and (ii) whether, under U.S.S.G. § 3B1.1(c), the Court should apply a 2-level enhancement to Martinez' offense level, because he was an organizer, leader, manager, or supervisor in any criminal activity. The Court concludes, first, that Martinez operated his body shop for the purpose of distributing heroin, cocaine, and cocaine base, i.e., crack. Second, the Court concludes that Martinez supervised his sister's and his cousin's distribution of controlled substances, and that he managed his sister's handling of cash. Accordingly, the Court will overrule Martinez' Objections and will apply both sentencing enhancements.

         FACTUAL BACKGROUND

         In a plea agreement, filed February 25, 2016 (Doc. 106)(“Information Plea Agreement”), Martinez admitted the following facts:

Beginning not later than December 2014, I, MARCOS MARTINEZ, combined and conspired with others to distribute heroin, cocaine and cocaine base (or “crack”) in and around Santa Fe, New Mexico. My participation in that conspiracy ended upon my arrest on January 23, 2015.
As part of the conspiracy, I, MARCOS MARTINEZ, obtained heroin, cocaine and cocaine based from suppliers in New Mexico. I distributed a portion of those drugs through an automobile repair business in Santa Fe known as “One Time Paint and Body.” I would deliver heroin, cocaine and cocaine base to co-conspirators at that location on a daily basis. As part of the conspiracy, co-conspirators [] would distribute and sell those drugs to other persons.
On January 23, 2015, law enforcement agents searched One Time Paint and Body and seized packages of heroin and cocaine base that I, MARCOS MARTINEZ, had previously delivered to a co-conspirator at that location to be sold to others.
I, MARCOS MARTINEZ, kept most of the illegal drugs in my possession at locations other than One Time Paint and Body, and would bring drugs to that business as needed for re-sale to others. On the morning of January 23, 2015, I transported a small bag containing cocaine base from a shed at a residential property in Santa Fe, New Mexico, to One Time Paint and Body intending to deliver it to a co-conspirator for further distribution. Law enforcement agents found and seized that bag of cocaine base from my truck after I arrived at One Time Paint and Body. Subsequent laboratory analyses established that the bag contained approximately 13 grams of cocaine base. Law enforcement officers also seized plastic bags containing cocaine and cocaine base which I had placed in that shed. Subsequent laboratory analysis established that those bags contained 453 grams of cocaine hydrochloride and 435 grams of cocaine base.
I, MARCOS MARTINEZ, also kept two firearms at my residence in Santa Fe, New Mexico. More specifically, on January 23, 2015, I possessed: a Ruger, model LC9, 9mm semi-automatic pistol, serial number 320-632-15; and a Berretta, model Tomcat, .32 caliber semi-automatic pistol, serial number DAA185865. At that time, I was prohibited from possessing firearms because I had previously been convicted of felony offenses. Law enforcement agents found and seized both of those firearms on January 23, 2015. I have been informed and admit that each of those firearms was manufactured outside of New Mexico, and each firearm traveled in interstate commerce before it came into my possession.

Information Plea Agreement ¶ 7, at 5-6 (paragraph lettering omitted).

         PROCEDURAL BACKGROUND

         On February 18, 2015, a grand jury returned a seven-count indictment against Martinez and two co-Defendants -- Marcos Tapia and Nancy Tapia. See Indictment at 1, filed February 18, 2015 (Doc. 15)(“Indictment”). The Indictment names Martinez in five counts: (i) conspiracy to possess with intent to distribute, and to distribute, cocaine, cocaine base, and heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count I); (ii) possession with intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2 (Count II); (iii) possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2 (Count III); (iv) possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2 (Count IV); and (v) being a felon in possession of two firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count VII). See Indictment at 1-4. The Indictment also includes a forfeiture allegation that, under 18 U.S.C. §§ 922(g), 924(d), and 28 U.S.C. § 2461(c), Martinez shall forfeit the firearms involved in the felon-in-possession offense in Count VII. See Indictment at 4. On July 6, 2015, pursuant to a plea agreement, Martinez entered guilty pleas as to Counts I, II, III, and VII. See Plea Agreement ¶ 3, at 2, filed July 6, 2015 (Doc. 60)(“Indictment Plea Agreement”). As part of the Indictment Plea Agreement, the United States agreed to dismiss Count IV. See Indictment Plea Agreement ¶ 20, at 11.

         On December 16, 2015, the United States Probation Office (“USPO”) filed a Presentence Investigation Report. See Presentence Investigation Report, filed December 16, 2015 (not filed on CM/ECF)(“PSR”). The PSR groups Counts I, II, and III for guideline calculation purposes pursuant to U.S.S.G. § 3D1.2(d). See PSR ¶ 36, at 10. For these three counts, the PSR calculates an adjusted offense level of 36, including a base offense level of 30, a 2-level enhancement under § 2D1.1(b)(12) for using the automotive body shop to distribute controlled substances, a 2-level enhancement under § 3B1.1(c) for an aggravating role in this activity as an organizer, leader, manager, or supervisor, and a 2-level enhancement under § 2D1.1(b)(15)(E) for committing the offense to earn a livelihood. See PSR ¶¶ 37-43, at 10. With respect to Count VII, the PSR calculates a base offense level of 24 and no adjustments. See PSR ¶¶ 44-49, at 10-11. Given the multiple counts of conviction, the PSR then calculates a combined adjusted offense level of 36, plus a 1-level enhancement for Martinez being a career offender under § 4B1.1, and a 3-level reduction for acceptance of responsibility under §§ 3E1.1(a) and 3E1.1(b), for a total offense level of 34. See PSR ¶¶ 50-57, at 11. Based on Martinez' status as a career offender, the PSR calculates a criminal history category of VI, see PSR ¶ 67, at 15, and a guideline imprisonment range of 262 to 327 months, see PSR ¶ 98, at 22.

         Martinez advances several objections to the PSR. See Objections at 1-13. As relevant here, Martinez objects to the PSR's enhancements under § 2D1.1(b)(12) and § 3B1.1(c). See Objections at 3-5. First, Martinez argues that he did not maintain the body shop for the purpose of distributing controlled substances. See Objections at 3. Martinez notes that he “had ongoing contracts to repair vehicles from the BMW and Mercedes dealerships and was actively negotiating for similar contracts from other dealerships and used car lots.” Objections at 3. Martinez notes, moreover, that the body shop “had been an active business for decades” before he purchased it and that it “carried on for some period even after his arrest . . . .” Objections at 3. Martinez concedes that M. Tapia and he “are guilty of selling drugs, ” but contends that “that is a far cry from the notion that the business was being operated to sell drugs.” Objections at 3. Indeed, Martinez avers, he “discouraged sales on the premises because other employees, customers and third persons might become aware and because that could harm future business.” Objections at 3. Martinez adds that “[n]o drugs were stored at the business and none were found during a seizure; all of the drugs seized were found in Mr. Martinez's vehicle and a storage shed at a residence.” Objections at 4. Martinez argues, further, that persons to whom he sold drugs “did not bring vehicles to the shop for repair or otherwise use the services of the business.” Objections at 4. Finally, Martinez argues that, because his body shop incurred debts as he “attempted to succeed in a competitive market, ” he felt “pressured . . . to stay involved in drugs to keep the door open . . . .” Objections at 4. Martinez accordingly argues that the § 2D1.1(b)(12) enhancement does not apply. See Objections at 4.

         Next, Martinez disputes that he played an aggravating role as an organizer, leader, manager, or supervisor in selling controlled substances. See Objections at 4-5. Martinez contends, rather, that he was a “middle man” whose role “did not involve managing others.” Objections at 4. Martinez explains that he sold controlled substances to M. Tapia, who “in turn sold on the street to people he knew.” Objections at 5. Martinez asserts that, in evaluating the aggravating-role enhancement, the Court should consider the following factors:

[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

         Objections at 5 (quoting U.S.S.G. § 3B1.1, cmt. n.4). In Martinez' view, there is no evidence that he “exercised any decision making” authority, that he “recruit[ed] an accomplice who may [have] been selling before [he] purchased the business, ” that he had “any share in the fruits of resale, ” or that he “exercised [] control or authority over others.” Objections at 5. Consequently, Martinez argues, the § 3B1.1(c) does not apply. See Objections at 5.

         The USPO responded to Martinez' Objections via an Addendum to the Presentence Report, filed December 16, 2015 (not filed on CM/ECF)(“Addendum”). As for Martinez' objection to the § 2D1.1(b)(12) enhancement, the USPO “maintains . . . that the defendant utilized his business . . . as a premises for the purpose of distributing controlled substances.” Addendum at 2. The USPO notes that, in the Indictment Plea Agreement's admission-of-facts section, Martinez “admits to distributing heroin, cocaine and cocaine base at [One Time Paint and Body] on a daily basis.” Addendum at 2.

         Finally, the USPO notes that law enforcement agents discovered 23.9 grams of heroin and 6.5 grams of cocaine base when they searched the shop's premises on January 23, 2015. See Addendum at 2. Regarding Martinez' objection to the § 3B1.1(c) enhancement, the USPO maintains that Martinez “supervised the distribution of controlled substance[s] conducted by his sister and cousin, who are the ...


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