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United States v. Dye

United States District Court, D. New Mexico

January 2, 2020

STEPHEN DYE, Defendant.

          John C. Anderson United States Attorney Letitia Carroll Simms Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Tova Indritz Tova Indritz Attorney at Law Albuquerque, New Mexico Attorney for the Defendant


         THIS MATTER comes before the Court on the Defendant's Objections to Pre-Sentence Report, Motion for Departure and Variance from Guidelines, and Sentencing Memorandum, filed December 2, 2019 (Doc. 34)(“Objections”). The Court held a sentencing hearing on January 2, 2020. The primary issues are: (i) whether Defendant Stephen Dye should be granted an additional eight or nine days of presentence confinement credit for time spent in the State of New Mexico's custody; (ii) whether the Presentence Investigation Report, filed November 12, 2019 (Doc. 29)(“PSR”), should include as offense conduct two separate, pending charges brought in Texas, because the offenses, although unrelated, involve felony possession of firearms and drug trafficking; (iii) whether the 6-level enhancement under § 2K2.1(b)(1)(C) of the United States Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) for committing an offense involving twenty-five to ninety-nine firearms applies, because law enforcement found approximately fifty-five to eighty firearms in Dye's home; (iv) whether the 2-level enhancement under § 2K2.1(b)(3)(B) of the Guidelines for possession of a destructive device applies, because law enforcement found a hand grenade in Dye's home; (v) whether the 1-level enhancement under § 2K2.1(b)(3)(B) of the Guidelines applies, because many of the firearms found in Dye's home were stolen; (vi) whether the PSR overstates Dye's criminal history, because it includes some factual errors about past offenses; (vii) whether the 4-level enhancement under § 2K2.1(b)(6)(B) of the Guidelines applies, because Dye was involved in drug trafficking; (viii) whether, if the Court declines to sustain Dye's objections to the sentencing enhancements, the Court should continue the sentencing until Kyle McDonald, who is currently awaiting trial, can no longer assert his right to remain silent under the Fifth Amendment to the Constitution of the United States of America; (ix) whether the Court should grant Dye a downward departure or a variance, because of his disability status, the impact that the PSR's sentencing range calculation would have on his family, and the disparities that might result between his sentence and McDonald's, who faces similar charges in state court and may receive a lesser sentence; and (x) whether the Court should allow Dye to voluntarily surrender to authorities. The Court concludes that: (i) although the Court has no authority to tell the Bureau of Prisons (“BOP”) how to calculate Dye's time served in custody, the Court will make certain that the PSR's face page accurately reflects the time he has served; (ii) the separate Texas charges are relevant, because they involve similar crimes that allegedly occurred less than two months before the charge in this case; (iii) the 6-level enhancement under § 2K2.1(b)(1)(C) of the Guidelines is appropriate, because numerous firearms were found in plain sight throughout Dye's home; (iv) the 2-level enhancement under § 2K2.1(b)(3)(B) of the Guidelines applies, because a hand grenade was found in plain sight in Dye's home; (v) the 1-level enhancement under § 2K2.1(b)(3)(B) of the Guidelines applies, because many of the firearms in his home were stolen; (vi) the PSR does not overstate Dye's criminal history, because the PSR places Dye in criminal history category I, which is the lowest criminal history category; (vii) the 4-level enhancement under § 2K2.1(b)(6)(B) of the Guidelines applies, because the evidence indicates that Dye's firearm possession was connected to drug trafficking; (viii) although the Court determines that McDonald's testimony would not prevent any of the four sentence enhancements from applying, the Court hesitates to deny Dye's request for a continuance; (ix) Dye's disability status, the impact that the PSR's sentencing range calculation would have on his family, and the disparities that might result between his sentence and McDonald's are not adequate bases for granting a downward departure; and (x) Dye is not entitled to voluntary surrender, because he has not met his burden of showing, by clear and convincing evidence, that he will not flee and that he does not pose a danger to others. Accordingly, the Court overrules in part and sustains in part Dye's Objections.

         The PSR elaborates on the offense conduct, providing:

12. On November 23, 2018, a state trooper initiated a traffic stop with a speeding vehicle in Clay County, Texas. The trooper contacted the driver, later identified as the defendant, and the passenger, later identified as Karlie Randa Lee. The officer observed a strong odor of marijuana coming from the vehicle. When asked if there were any illegal substances inside the vehicle, the defendant advised that Lee possessed a marijuana joint. Lee admitted to having the joint and gave it to the trooper. She was arrested for possession of marijuana.
13. The defendant initially denied having any weapons in the vehicle, but then admitted to having a pistol strapped to his leg. The defendant was placed into handcuffs and detained. While conducting a pat down, the weapon was removed for safety and the trooper also found a set of brass knuckles in the defendant's back pants pocket.
14. The defendant's vehicle was searched and the following items were seized: 19 grams of methamphetamine, three rifles, two handguns, multiple smoking devices, marijuana in Lee's purse, 90 grams of methamphetamine, a scale, 47 grams of morphine, six ecstasy pills, 16 orange capsules labeled M. Amphet Salts 20 mg (capsules found to contain amphetamine), large quantity of different colored baggies, 1, 398 rounds of assorted ammunition to include large capacity magazines, and $1, 185 in cash.
15. The type of firearms seized were: (1) Ruger P95DC 9mm, (2) S&W SD9VE 9mm, (3) Star Firestar 9mm, (4) American Tactical .556, High Tower Armory 9mm, and (5) Rock River Arms LAR 15 .556 (a semiautomatic firearm capable of accepting large capacity magazines with high capacity magazines in close proximity to the firearm).
16. The defendant was arrested on the above charges and placed into custody. The defendant had $757 in cash inside his wallet upon arrest. This case remains pending in Texas (see Case Nos. CR-15588, CR-15589, and JP-2018-328). However, it is included as relevant conduct due to this offense being part of the same course of conduct. This offense represented a connected offense that included a degree of similarity to the federal offense (large quantity of firearms, ammunition, and drugs: methamphetamine and marijuana) and temporal proximity to the federal offense (less than two months apart).
17. On January 3, 2019, the San Juan County Sheriff's Office (SJCSO) began investigating several individuals who had been repeatedly involved in criminal activity in the Farmington, New Mexico area. The defendant, Stephen Dye, was identified early as a person who associates with a criminal group involved in multiple crimes to include aggravated batteries, burglaries, drug trafficking, and firearm transactions. Dye had been convicted of felony offenses to include: Possession of a Controlled Substance, Forgery, Distribute Controlled Substance, Aggravated Burglary, and Larceny of a Firearm. SJCSO obtained a search warrant on January 8, 2019. This warrant allowed SJCSO to search for letters, documents, photos, and phones for evidence of other crimes occurring in Farmington. SJCSO had probable cause to suspect Dye was involved in dealing drugs.
18. On January 8, 2019, the SJCSO executed a search warrant on the residence of Stephen Dye at 2111 Heights Dr. in Farmington, New Mexico. During the search, officers confirmed that an individual named Kyle McDonald was residing at Stephen Dye's residence as well. While serving the warrant, multiple firearms and narcotics were observed in plain view throughout the residence. Law enforcement observed a pump shot gun in Dye's bedroom and firearms on the floors of the two-story residence. Marijuana (weight unspecified) was located in a back bedroom and methamphetamine was located inside one of Kyle McDonald's shoes. The total weight of the methamphetamine was 18.07 grams. Based on these observations and after confirming that Stephen Dye was a convicted felon, law enforcement obtained a second warrant to search for firearms and drugs.
19. After obtaining the second warrant, law enforcement continued the search on the same date. In Dye's bedroom, SJCSO found multiple plastic baggies containing a large amount of suspected marijuana. Each bag of marijuana weighed approximately 30 grams, with a total weight of a quarter pound.
20. During the search for firearms, officers searched the garage and located a large quantity of firearms and firearm parts. It appeared that Dye and McDonald were using the garage to either dismantle the firearms, and/or put them together. There were wooden rifle stocks piled into a box. There was also a small suitcase full of revolver parts.
21. In another room (Room #4), officers located body armor which had a patch that read “Bullet” on it. “Bullet” is known to be Stephen Dye's moniker. Feet away from the body armor, officers found a live grenade sitting on a shelf. The grenade was later inspected and X-rayed and determined to be in functioning order. There were also several firearms found in Dye's bedroom. The pictures from the search warrant depict numerous firearms and firearm parts in the house. Law enforcement approximated anywhere from 55 to 80 firearms in the home. While not all firearms were tested for functionality, at least two of the firearms were test fired by law enforcement and functioned as designed.
22. Dye was interviewed and waived his Miranda rights. He admitted there were guns in his house, specifically in the closet under the stairs. He provided a door code. Dye stated there was a shotgun in the bedroom behind the door, and his girlfriend had a .22 pistol at his house. Dye stated there was an SKS rifle in his closet, which he bought for $300. He also mentioned he had been stopped in Texas with methamphetamine and marijuana. At that time, he had an AR 15 and some pistols in his vehicle. Dye stated that most of the other rifles and gun parts found in the house were McDonald's that he got from his grandfather. Dye stated he went through several of McDonald's guns and some of them are in functioning condition. He stated that his DNA would be on several of the firearms because he helped take them apart and inspect them. Dye gave codes to the safe(s) and said that there was a 30.06 rifle in the safe.
23. Dye mentioned to law enforcement that due to a motorcycle crash three years prior, he started using methamphetamine. He admitted to using 1.75 grams a day. He uses his roommate, Kyle McDonald, to distribute his narcotics. Dye states he buys an ounce, keeps a quarter for himself, and gives the rest to McDonald to sell to make money to afford their habits. Cash in the amount of $6, 820 was in a safe in the upstairs hallway of the residence.
24. It was determined that many of the firearms were stolen in December 2018 from Gordon Jones in Bloomfield, New Mexico. Gordon Jones has a son named Wiatt Jones, who is involved with Stephen Dye and Kyle McDonald's larger criminal organization which was the subject of the local investigation. In late December 2018, Gordon and Wiatt were in an altercation with each other. During that altercation, Wiatt let it slip that he had stolen Gordon's guns. Gordon then found that the safe at his residence had been grinded down and broken into and a large quantity of firearms were missing. He stated the safe could hold up to 60 or more firearms. Gordon stated that the firearms were all old WWI and WWII type rifles, and that his father used to be a gunsmith, which is how he obtained so many firearms.
29. McDonald was later charged in the Farmington District Court (Case No. D-1116-CR-201900489) with Racketeering; Conspiracy to Commit Bribery of a Witness; Conspiracy to Commit Trafficking (By Distribution -- Methamphetamine); Non-Residential Burglary; Criminal Damage to Property; Possession of a Controlled Substance; and 78 counts of Larceny of a Firearm. This case was dismissed.
30. On January 3, 2019, an associate of the defendant, Chad Cordell, made a call from jail to McDonald's phone. Early in the conversation, the phone is handed to Dye, and Dye and Cordell speak about a possible firearm transaction. In apparent reference to being able to provide Cordell with some “Winchinchesters” (a Winchester brand firearm), Dye states, “Alright, we went to the flea market, ” and then laughs. Cordell asks, “So you got a assortment of them?” Dye responds, “Yea, were [sic] talking one offs, handmade, beautiful.” 31. Upon inspection of Gordon Jones' residence, officers observed some wooden stocks of older rifles, just like what had been located at Dye's residence. These stocks were also located in the same type of boxes that were located at Dye's residence.
32. The pictures taken at the search warrant show numerous old firearms and firearm parts. Some of the weapons did not have serial numbers, but it is unclear whether they were obliterated, or whether the firearms were manufactured prior to requiring serial numbers.
33. In summary, the defendant, a convicted felon and substance abuser, knowingly possessed firearms while trafficking controlled substances and firearms.

PSR ¶¶ 12-24, 29-33 at 4-7. On September 12, 2019, Dye pled guilty to “a violation of 18 U.S.C. §§ 922(g)(1) and 924, that being Felon in Possession of a Firearm.” Plea Agreement, filed September 12, 2019 (Doc. 26)

         Dye argues that he should be granted eight or nine days of presentence confinement credit, because he “was arrested . . . on January 30 or 31, 2019, then due to injuries incurred in the arrest he was flown to Albuquerque where he underwent surgery” before being “released on February 7, 2019.” Objections at 1. Although the United States does not respond to Dye's request, the United States Probation Office (“USPO”) agrees that the Court should grant Dye eight days of additional credit, bringing Dye's total time in custody to twelve days. See Addendum to the Presentence Report at 1, filed December 18, 2019 (Doc. 36)(“Addendum”). The Supreme Court of the United States held, in United States v. Wilson, 503 U.S. 329 (1992), that district courts do not have the authority under 18 U.S.C. § 3585(b) to compute a sentence credit at sentencing for time served in pretrial detention. See United States v. Wilson, 503 U.S. at 331-32. Rather, the Attorney General, through the BOP, must make credit awards after sentencing. “In so holding, the [Supreme] Court recognized that under § 3585(b), Congress has indicated that computation of the credit must occur after the defendant begins his sentence. A district court, therefore, cannot apply § 3585(b) at sentencing.” United States v. Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994)(alterations omitted)(citations omitted)(internal quotation marks omitted). While the BOP -- and not the Court -- is the one who makes the determination of credit for time served, see United States v. Rodriguez, No. CR 11-0288 JB, 2011 WL 6831907, at *8 (D.N.M. Dec. 28, 2011)(Browning, J.), the Court strives to make the PSR's face page accurate. Accordingly, the Court will edit the face page to reflect that Dye has been in custody for eight additional days.

         Dye challenges the USPO's calculation of his total offense level in the PSR. The PSR calculates Dye's base offense level as 20 for felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See PSR ¶ 38, at 1. The PSR applies four enhancements to Dye's base offense level: (i) increase by 6 levels for an offense involving twenty-five to ninety-nine firearms, see PSR ¶ 39, at 8 (citing U.S.S.G. § 2K2.1(b)(1)(C)), because law enforcement found numerous firearms in Dye's home; (ii) increase by 2 levels for possession of a destructive device, because law enforcement found a hand grenade in Dye's home, see PSR ¶ 40, at 8 (citing U.S.S.G. § 2K2.1(b)(3)(B)); (iii) increase by 1 level, because many of the firearms in Dye's home were stolen, see PSR ¶ 41, at 8 (citing U.S.S.G. § 2K2.1(b)(4)); and (iv) increase by 4 levels, because Dye possessed firearms in connection with drug trafficking, see PSR ¶ 42, at 8 (citing U.S.S.G. § 2K2.1(b)(6)(B)). The PSR also reduces Dye's offense level by 2 levels, because Dye has “clearly demonstrated acceptance of responsibility for the offense, ” PSR ¶ 48, at 9 (citing U.S.S.G. § 3E1.1(a)), and by 1 level, because Dye has “assisted authorities in the investigation or prosecution of the defendant's own misconduct by timely notifying authorities of the intention to enter a plea of guilty, ” PSR ¶ 49, at 9 (citing U.S.S.G. § 3E1.1(b)). Accordingly, the PSR calculates Dye's total offense level as 30. See PSR ΒΆ 50, at 9. With a total offense level of ...

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