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United States v. Duarte

United States District Court, D. New Mexico

January 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSUE DUARTE, Defendant.

          John Van Butcher Federal Public Defender's Office Attorney for Mr. Duarte

          Paul H. Spiers Assistant United States Attorney Attorney for the United States

          MEMORANDUM OPINION

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         On 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.

         The 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.

         In 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).

         I. The Offense

         On July 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.

         On July 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.

         On July 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.

         On July 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 ...

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