United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Jonathon M. Gerson
Stephen R. Kotz Reeve L. Swainston Cynthia L. Weisman
Assistant United States Attorneys United States
Attorney's Office Albuquerque, New Mexico Attorneys for
Phillip G. Sapien Sapien Law, LLC Albuquerque, New Mexico
Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Sealed
Objections to the Pre-Sentence Investigation Report and
Request for a Downward Departure or Variance Submitted on
Behalf of Defendant Benito Castillo-Nava, filed July 12, 2017
(Doc. 913)(“Objections”). The primary issue is
whether a 2-level dangerous-weapon enhancement under U.S.S.G.
§ 2D1.1(b)(1) is appropriate solely because Defendant
Benito Castillo-Nava offered, to the leader of a
drug-trafficking organization, to satisfy a drug debt by
delivering five firearms to the organization. The Court
concludes that such an enhancement is not appropriate and
sustains the Objections.
March 2011, Drug Enforcement Agency (“DEA”)
agents began actively investigating a drug-trafficking
organization based in Albuquerque, New Mexico. In that month,
the organization purchased forty firearms from undercover
agents. After the ensuing arrests on firearm charges, the DEA
further investigated the organization, and it determined that
the organization's activities were facilitated though the
use of ever-changing cellular telephones and telephone
numbers. DEA agents secured court-authorized wiretaps on four
cellular telephones owned by the organization's leader,
wiretaps intercepted ten pertinent telephone calls between
Varela and Castillo-Nava. In a call that occurred on August
25, 2011, Varela and Castillo-Nava discussed cocaine
trafficking and the price of cocaine in El Paso, Texas. In
addition, in another intercepted call, Varela and
Castillo-Nava discussed numerous firearms -- including an
AK-47, a Glock 9 handgun, an Uzi fitted with a silencer, and
two unsilenced Uzis -- that Castillo-Nova offered as payment
for a dug debt. Based on the intercepted telephone calls, the
DEA determined that Castillo-Nava was a facilitator of drug
transactions for the Varela organizations and that those
transactions accounted for one kilogram of cocaine.
January 24, 2012, Castillo-Nava was indicted for conspiracy
to distribute a controlled substance and use of a telephone
to facilitate a drug trafficking offense. See
Indictment at 2, 9, filed January 24, 2012 (Doc. 1). At
approximately 6:30 a.m. on January 26, 2012, DEA agents and
other law-enforcement personnel arrested Castillo-Nava at his
residence without incident. On February 25, 2015,
Castillo-Nava was charged with Misprision of a Felony, an
offense defined by 18 U.S.C. § 4. See
Information at 1, filed February 25, 2015 (Doc. 737).
Castillo-Nava pled guilty and indicated:
Beginning in or about May 2011, and continuing until on or
about January 2012, in Bernalillo County, in the State and
District of New Mexico, and elsewhere, the Defendant, Benito
Castillo-Nava, having knowledge of the actual commission of a
felony, to wit: a federal felony offense, did conceal the
same and did not as soon as possible make known the same to
some judge or other person in civil or military authority
under the United States.
Plea Agreement ¶ 7, at 3, filed February 25, 2015 (Doc.
740)(“Plea Agreement”). Castillo-Nava waived his
right to appeal a conviction and any sentence imposed except
to the extent that the Court may vary upward from the
advisory sentencing guideline range as the Court determines
the range. See Plea Agreement ¶ 13, at 5-6.
United States Probation Office (“USPO”)
determines that Castillo-Nava's base offense level for
the underlying offense of conspiracy to distribute controlled
substances is 24. See Presentence Investigation
Report ¶ 91, at 27-28 (“PSR”). The USPO
applies a 2-level enhancement for possession of a dangerous
weapon, because Castillo-Nava discussed both firearms and
drug trafficking in the intercepted telephone calls.
See U.S.S.G. § 2D1.1(b)(1). The USPO then
applies a 9-level reduction, because Castillo-Nava's
conviction is for misprision of the underlying offense --
conspiracy to distribute controlled substances -- and not for
committing the underlying offense, see U.S.S.G.
§ 2X4.1(a), and a 3-level reduction for acceptance of
responsibility, see U.S.S.G. § 3E1.1. The USPO
thus calculates a total offense level of 14. With a criminal
history score of 0, the USPO determines that Castillo-Nava
has a criminal history category of I. See PSR
¶¶ 105-06, at 30. Based on Castillo-Nava's
total offense level and criminal history category, the USPO
concluded that the guideline imprisonment range is 15 to 21
Objections, Castillo-Nava challenges the 2-level
dangerous-weapon enhancement that the PSR applies.
See Objections ¶ 12, at 3. He also argues that
the USPO erroneously fails to grant him a 2-level
safety-valve reduction even though Castillo-Nava meets the
eligibility requirements under 18 U.S.C. §
3553(f)(1)-(5) and U.S.S.G. § 5C1.2. Castillo-Nava
therefore maintains that the USPO should calculate his total
offense level as 10, which would result in a guidelines range
of 6 to 12 months. See Objections at 4.
argues that the firearms enhancement is inappropriate,
because the Court “should not consider the unconvicted
conduct relating to Mr. Castillo-Nava in determining Mr.
Castillo-Nava's offense level.” Objections at 5.
Castillo-Nava elaborates that, because he has not been
convicted for firearms possession, punishing him because of
firearm possession would violate the Sixth Amendment to the
Constitution of the United States of America. See
Objections at 5. Castillo-Nava also argues that due process
under the Fifth Amendment to the Constitution of the United
States of America requires the Court to apply a heightened
standard, proof beyond a reasonable doubt, instead of the
ordinary preponderance of the evidence standard. See
Objections at 5.
addition to his constitutional arguments, Castillo-Nava
contends that the § 2D1.1(b)(1)'s 2-level
dangerous-weapon enhancement does not apply to this case.
See Objections at 7. According to Castillo-Nava, the
enhancement's goal is to address cases involving the
presence of a dangerous weapon, so the United States must
show “a temporal and spatial relation existed between
the weapon, the drug trafficking activity, and the
defendant.” United States v. Sallis, 533 F.3d
1218, 1225 (10th Cir. 2008). Castillo-Nava notes that no
firearms were seized from his home and that the United States