United States District Court, D. New Mexico
Van Butcher Federal Public Defender's Office Attorney for
H. Spiers Assistant United States Attorney Attorney for the
VÁZQUEZ UNITED STATES DISTRICT JUDGE
March 16, 2017, defendant Josue Duarte entered into a plea
agreement with the government, pursuant to which he pleaded
guilty to an Information charging him with unlawfully,
knowingly and intentionally possessing with intent to
distribute a controlled substance, a mixture and substance
containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c).
[Doc. 44]. On August 31, 2017, Mr. Duarte appeared before the
Court for sentencing in this case. At the conclusion of the
hearing, the Court sentenced Mr. Duarte to 24 months
imprisonment and three years of supervised release. [Doc.
72]. The Court's reasoning and basis for the sentence is
set forth in this Memorandum Opinion and Order.
offense level in this case is 25 and the criminal history
category is IV. The guideline imprisonment range is 84 months
to 105 months. Mr. Duarte requested a downward variance to a
sentence of 36 months. The government opposed Mr.
Duarte's request for a downward variance and advocated a
sentence within the guideline range.
addition to the Sentencing Guidelines, the Court was required
to consider the other factors set forth in 18 U.S.C. §
3553, including the nature and circumstances of the offense
and the history and characteristics of Mr. Duarte. Section
3553 also required the Court to impose a sentence that
complies with the purposes of sentencing, which include (1)
retribution, (2) deterrence, (3) incapacitation, and (4)
rehabilitation. In satisfying these purposes, the Court was
obligated to consider-and did consider-each of the factors
outlined in Section 3553(a).
15, 2016, agents from the Bureau of Alcohol, Tobacco and
Firearms spoke with a confidential information about an
unidentified individual, “JJ, ” who allegedly had
multiple sources of supply for methamphetamine and heroin and
was willing to introduce the confidential informant to them.
JJ was later identified as Johnny Flores, the codefendant in
this case. The same day, the confidential informant and an
undercover agent met with Mr. Flores in a McDonald's
parking lot in Albuquerque. Mr. Flores offered to sell the
undercover agent two ounces of methamphetamine for $1, 300.
He did not actually have the methamphetamine, but contacted
his source of supply for it. The source of supply failed to
arrive, stating that he was at work. There was no exchange of
drugs at this encounter.
17, 2016, the undercover agent contacted the source of
supply, an unknown Hispanic male, at a phone number provided
to him by Mr. Flores. The source of supply, Mr. Flores and
the undercover agent met at a parking lot, where the
undercover agent purchased two ounces of methamphetamine for
$1, 200. Mr. Flores handled the transaction while the source
of supply stayed in the car. Mr. Flores indicated the source
of supply did not want to speak to the undercover agent at
that time. The undercover agent gave Mr. Flores $40 as a
broker's fee. The source of supply was later identified
as the Defendant, Mr. Duarte. The methamphetamine had a net
weight of 57.9 grams.
18, 2016, the undercover agent contacted Mr. Duarte and
requested two ounces of methamphetamine. Upon arrival, Mr.
Duarte was driving. Mr. Flores conducted the transaction,
giving the undercover agent two ounces of methamphetamine for
$1, 200. The methamphetamine had a net weight of 55 grams.
21, 2016, Mr. Flores introduced the undercover agent to Mr.
Duarte. The net methamphetamine sale on that day was 54.91
grams. Subsequently, Mr. Duarte began conducting the sale of
methamphetamine directly to the undercover agent, without Mr.
Flores. Mr. Duarte conducted the following drug transactions:
July 26, 2016-net amphetamine sale of 104.405 grams
July 29, 2016-net amphetamine sale of 108.3 grams
August 2, 2016-net amphetamine sale of ...