Opinion
No. 20-CR-1702-MV-1
2023-01-06
UNITED STATES of America, Plaintiff, v. David MARTINEZ, Defendant.
Louis C. Mattei, DOJ-USAO, Albuquerque, NM, Stephen R. Kotz, U.S. Attorney's Office - ABQ District of New Mexico, Albuquerque, NM, for Plaintiff. Stephen A. Taylor, Public Defender, Office of the Federal Public Defender, Albuquerque, NM, for Defendant.
Louis C. Mattei, DOJ-USAO, Albuquerque, NM, Stephen R. Kotz, U.S. Attorney's Office - ABQ District of New Mexico, Albuquerque, NM, for Plaintiff. Stephen A. Taylor, Public Defender, Office of the Federal Public Defender, Albuquerque, NM, for Defendant. MEMORANDUM OPINION AND ORDER MARTHA VÁZQUEZ, Senior United States District Judge
THIS MATTER is before the Court on Mr. Martinez's Objections to the Presentence Report [Dkt. 82] and Objections to the Second Addendum to the Presentence Report [Dkt. 117]. The Court held an evidentiary hearing on November 4, 2022 to address a number of these objections. See Evidentiary Hearing Transcript (available upon request); Dkt. 127. Having heard evidence and argument, considered the briefs and relevant law, and otherwise being fully informed, the Court will rule as follows on Mr. Martinez's objections and set his advisory Guidelines range at 63-78 months. Additionally, the Court will consider whether a variance based on a policy disagreement is appropriate when it conducts its 18 U.S.C. § 3553 analysis at Mr. Martinez's upcoming sentencing hearing.
BACKGROUND
On June 1, 2021, Mr. Martinez pleaded guilty to Count 3 of a three-count Indictment charging him with Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Dkts. 29, 71. United States Probation released a Presentence Investigation Report ("PSR") on July 29, 2021 and Mr. Martinez subsequently raised 13 objections. Dkts. 77, 82. The government responded to these first 13 objections and Mr. Martinez replied. Dkts. 89, 90. Mr. Martinez then raised two more objections following the publication of Probation's Second Addendum to the PSR. Dkts. 117, 115. Mr. Martinez's 15 objections are now before the Court.
Law enforcement became interested in Mr. Martinez in 2020, when a confidential human source ("CHS") informed officers that Mr. Martinez "sold methamphetamine in large amounts . . . to mid-level drug dealers," and was making sales "out of his residence as well as meeting buyers at various locations." PSR ¶ 11. Then, in July of 2020, "the CHS was utilized to make a controlled purchase of methamphetamine" from Mr. Martinez. PSR ¶ 12. Based on this purchase, law enforcement obtained a search warrant for the residence where the controlled purchase occurred. Id.
The search warrant was executed on August 6, 2020. PSR ¶ 13. Mr. Martinez was present in the home, as was his codefendant, Jean Madrid. Id. The two were arrested and law enforcement seized five firearms from the home:
• A Glock 43 9mm pistol with a partially loaded magazine, located inside Ms. Madrid's purse;PSR ¶ 14. Officers also found miscellaneous ammunition, a gun belt, and body armor, as well as drugs and drug paraphernalia, including the following:
• A Glock 26 9mm pistol with a partially loaded extended magazine, located on the kitchen counter;
• A North American Arms Companion .22 caliber revolver, located inside a dresser in the master bedroom;
• A Highpoint JCP .40 caliber pistol, located inside Mr. Martinez's Chevrolet Tahoe; and
• An RTS Revolver, located inside a purse in a different Chevrolet Tahoe.
• 41 grams of methamphetamine (actual), with approximately 40 grams located inside Ms. Madrid's purse;Id.; Dkt. 115-11 at 4. Officers also found approximately $4,130 in U.S. currency in Ms. Madrid's purse and approximately $1,003 in U.S. currency on Mr. Martinez's person. PSR ¶ 14. Mr. Martinez has convincingly shown that the currency he was carrying constituted recent winnings from the Isleta Resort and Casino. Dkts. 82-2, 82-3.
• 43.2 grams of marijuana, located inside Ms. Madrid's purse and in a fanny pack;
• Suspected codeine, located inside a dresser drawer;
• An unknown quantity of cocaine, located on a bathroom shelf;
• Unidentified pills, also located on the bathroom shelf;
• Two digital scales; and
• Plastic baggies, located in a vase in the kitchen.
In a post-arrest interview on August 6, 2020, Ms. Madrid explained that she had been in a romantic relationship with Mr. Martinez, but that they had recently separated. PSR ¶ 15. She admitted that the Glock 43 9mm pistol and the majority of the methamphetamine had been found in a purse belonging to her, and "stated the firearm was for her personal protection and the methamphetamine was for personal use." PSR ¶ 15.
Following her arrest, Ms. Madrid was charged with Possession with Intent to Distribute a Mixture and Substance Containing Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), as well as Possessing a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Dkt. 29 at 1-2. She ultimately pleaded guilty to one charge of User or Addict in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(3) and 924, and one charge of Possession of a Mixture and Substance Containing Methamphetamine, in violation of 21 U.S.C. § 844(a). Dkt. 115-11 at 2. In her plea agreement, she admitted the following:
This Court sentenced Ms. Madrid to 8 days (time served) in custody on both counts on August 9, 2022.
[L]aw enforcement found approximately 40 net grams of methamphetamine inside my purse. I knew this methamphetamine was in my purse. It belonged to me, and I intended to use it myself. My codefendant, Mr. Martinez, had given me approximately half of this methamphetamine a few days before the search. Mr. Martinez regularly obtained methamphetamine for both him and myself to use. Mr. Martinez would provide me with a supply of methamphetamine for my own use on a monthly basis dating back to approximately 2019.Id. at 4.
Mr. Martinez was only charged with Felon in Possession of a Firearm and Ammunition, and in his plea agreement he admits that two of the guns found in the search belonged to him: the Highpoint JCP .40 caliber pistol and the Glock 26 9mm pistol. Dkt. 29; Dkt. 71 at 4. However, when it came time to calculate his advisory Guidelines sentencing range, Mr. Martinez's base offense level was calculated under USSG § 2D1.1, which generally applies to Unlawful Manufacturing, Importing, Exporting, or Trafficking of Controlled Substances. PSR ¶¶ 23-34. Probation ultimately determined that Mr. Martinez's total offense level was 29, taking into account 41 grams of actual methamphetamine and 43.2 grams of marijuana. PSR ¶ 24. Because Mr. Martinez is in Criminal History Category II, his advisory Guidelines range was calculated as 97 to 121 months. PSR ¶ 87.
DISCUSSION
I. Objections
A. First Objection to the Application of USSG § 2K2.1(c)(1)(A)
Mr. Martinez argues against the application of the cross-reference provision of USSG § 2K2.1(c)(1)(A), which Probation used to calculate his base offense level under USSG § 2D1.1. Section 2K2.1(c)(1)(A) instructs that "[i]f the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense," the Court should apply that other offense's Guideline "if the resulting offense level is greater than that determined above." USSG § 2K2.1(c)(1)(A).
As an initial matter, Mr. Martinez argues that the Court's factual findings regarding the applicability of the cross-reference must be supported by clear and convincing evidence. Dkt. 82 at 7-13. Specifically, he argues that the Tenth Circuit has "left open the possibility that due process may require proof by clear and convincing evidence before imposition of a Guidelines enhancement that increases a sentence by an 'extraordinary or dramatic' amount." Id. at 7 (citing United States v. Ray, 704 F.3d 1307, 1314 (10th Cir. 2013)). He also argues that this Court should apply the Ninth Circuit's test for determining "when a disputed guideline enhancement will raise the evidentiary bar." Id. at 12 (citing United States v. Hymas, 780 F.3d 1285, 1290 (9th Cir. 2015)).
The Tenth Circuit, however, has not adopted the Ninth Circuit's standard. Although in Ray the Tenth Circuit stated that it was "le[aving] open the possibility that due process may require proof by clear and convincing evidence before imposition of a Guidelines enhancement that increases a sentence by an 'extraordinary or dramatic' amount," 704 F.3d at 1314, the Court subsequently issued a ruling foreclosing the issue. See United States v. Robertson, 946 F.3d 1168, 1171 (10th Cir.), cert. denied, — U.S. —, 141 S. Ct. 398, 208 L.Ed.2d 109 (2020) ("The Supreme Court has not yet held that due process requires a heightened standard when a contested fact significantly changes the guidelines range of the sentence. Five circuits have rejected that argument . . . . [W]e hold that the correct standard of proof in this case was a preponderance of the evidence. This issue has been foreclosed in this Circuit."). Since the Robertson decision, the Tenth Circuit has repeatedly held that "factfinding in the sentencing phase requires only a preponderance of the evidence, even where a contested fact has a significant impact on the sentence." United States v. Adams, 846 F. App'x 653, 658 (10th Cir.) (unpublished), cert. denied, — U.S. —, 142 S. Ct. 268, 211 L.Ed.2d 123 (2021); see also United States v. Rollins, 861 F. App'x 257, 261 (10th Cir. 2021) (unpublished), cert. denied, — U.S. —, 142 S. Ct. 808, 211 L.Ed.2d 502 (2022); United States v. Rico, 3 F.4th 1236, 1239 n.2 (10th Cir.), cert. denied, — U.S. —, 142 S. Ct. 302, 211 L.Ed.2d 142 (2021); but see United States v. Ansberry, 976 F.3d 1108, 1124 n.8 (10th Cir. 2020); United States v. Stein, 985 F.3d 1254, 1266 (10th Cir.), cert. denied, — U.S. —, 142 S. Ct. 425, 211 L.Ed.2d 251 (2021). This Court is bound by the Tenth Circuit's decisions.
Even if this Court were to eschew Robertson, the Tenth Circuit has "never held that a sentencing enhancement was subject to the clear and convincing standard based on its disproportionate impact on the guidelines range." Stein, 985 F.3d at 1266 (declining to apply a clear and convincing standard where a terrorism enhancement had "increased defendants' guideline ranges from approximately 15-20 years to life imprisonment and defendants ultimately received sentences ranging from 25 to 30 years"); see also United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (declining to apply a clear and convincing standard where "defendant's sentencing range went from approximately twenty years to consecutive forty year terms because the court took into account evidence of quantities of cocaine base for which defendant was not convicted"). The Court agrees with the government that, if neither Stein nor Washington involved extraordinary and dramatic sentencing increases, the sentencing increase in Mr. Martinez's case does not rise to the level of "extraordinary and dramatic." Dkt. 89 at 7.
Applying the preponderance standard, the Court finds that the cross-reference provision of § 2K1.2(C)(1)(A) is applicable. First, the Court finds that Mr. Martinez committed "another offense," which is defined in Application Note 14(C) as "any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, regardless of whether a criminal charge was brought, or a conviction obtained." USSG § 2K2.1 n.14(C). The Admission of Facts contained in Ms. Madrid's plea agreement indicates that Mr. Martinez had given her "approximately half of this methamphetamine a few days before the search" and "regularly obtained methamphetamine" for them both "to use." Dkt. 115-11 at 4. Further, indicia of drug distribution were found in the home, including firearms, ammunition, a gun belt, body armor, scales, and baggies. PSR ¶ 14. Based on this evidence, the Court finds that Mr. Martinez committed the "other offense" of drug distribution, which is prohibited by 21 U.S.C. § 841(a)(1); namely, Mr. Martinez was engaged in an ongoing pattern of methamphetamine distribution to Ms. Madrid.
In its sentencing memorandum, the government contended that the two scales found in the home both had "white residue on them." Dkt. 89 at 3. The government then submitted photographs of these scales. Dkts. 116-6, 116-7. While the photographs are not particularly clear, the scales are of a size commonly used to weigh small objects, including small drug amounts. In addition, the Court does believe that at least one of the scales contains white residue. See Dkt. 116-6.
As discussed below, the baggies can be fairly described as "consistent with drug trafficking." Infra at 1193.
Next, the Court finds that Mr. Martinez possessed the Glock 26 9mm pistol and the Highpoint JCP .40 caliber pistol "in connection with" his drug distribution offense. "A firearm that facilitates or has the potential to facilitate the underlying offense is possessed 'in connection with' the underlying offense." United States v. Valdez, 248 F. App'x 47, 50 (10th Cir. 2007) (citation omitted). "[H]andguns are widely recognized as a tool of the drug dealers trade" and "they are often used to facilitate an offense by providing a means of protection or intimidation." Id. Both of the firearms possessed by Mr. Martinez meet this test. Specifically, the Highpoint JCP .40 caliber pistol, which was found in Mr. Martinez's Chevrolet Tahoe, had the potential to provide him with protection as he transported methamphetamine into the home. Further, the Glock 26 9mm pistol had the potential to provide him with protection as he transferred the methamphetamine to Ms. Madrid once he was within the home. Accordingly, the "in connection with" element of the cross-reference is met.
Finally, the Court finds that, in applying the cross-reference, Mr. Martinez should be held responsible for distribution of 26 grams of actual methamphetamine. Ms. Madrid, in her sworn plea agreement before the Court, admitted to possessing 40 grams of methamphetamine for personal use. Dkt. 115-11 at 4. Of those 40 grams, only "approximately half" was given to her by Mr. Martinez. Id. (emphasis added). "Approximately half" suggests something close in value or amount to 20 grams but not precisely 20 grams. However, the Court heard nothing at the evidentiary hearing to suggest a more precise amount. Ms. Madrid was not called to testify. Sergeant Montoya, whose work on this case can be characterized as sloppy at best, also provided little assistance with respect to specific drug quantities. In response to a question posed by the government regarding Ms. Madrid's post-Miranda statements, Sergeant Montoya testified that she told him that the methamphetamine in her purse was "given to her by Mr. Martinez." Evidentiary Hr'g Tr. at 48:16. He also testified that Ms. Madrid told him in the same interview that the methamphetamine was "usually" provided by Mr. Martinez. Id. at 49:1. Additionally, Sergeant Montoya claimed that, in a debrief that took place three months later, Ms. Madrid stated that the methamphetamine in her purse was "provided by Mr. Martinez" Id. at 49:15.
These three statements, both individually and cumulatively, are not inconsistent with Ms. Madrid's sworn admission. At no point did Sergeant Montoya claim that Ms. Madrid's statements implied that all the methamphetamine located in her purse came from Mr. Martinez; indeed, that it "usually" came from Mr. Martinez does not foreclose other sourcing. The government agrees with this assessment of the evidence. Id. at 60:7-9 ("But, nevertheless, the evidence we heard this morning shows that Mr. Martinez was giving Ms. Madrid about 20 grams of methamphetamine per month."); see also 68:3-6.
The Court will add to these 20 grams the six grams Mr. Martinez is alleged to have sold to the CHS on July 23, 2020. "District courts are not strictly bound by the Federal Rules of Evidence at sentencing hearings. As a result, hearsay statements may be considered at sentencing if they bear some minimal indicia of reliability. This reliability floor is a requirement of due process." United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013) (citations omitted). See also United States v. Cook, 550 F.3d 1292, 1296 (10th Cir. 2008) (noting that "the due process clause protects a defendant's right not to be sentenced on the basis of materially incorrect information"). The evidence presented by the government regarding this purchase contained many flaws, perhaps explaining why it did not pursue drug charges against Mr. Martinez instead of the § 922(g)(1) violation before the Court today. Among those flaws were an underprepared law enforcement officer who appeared eager to guess, hearsay testimony regarding the controlled purchase, and two differing sworn accounts of where the purchase itself took place. Further, the CHS did not testify and appeared motivated to assist law enforcement for pecuniary gain. Evidentiary Hr'g Tr. at 15:21-22. However, given the low standard of proof applicable here—a preponderance of the evidence—the Court believes that the government has narrowly crossed the threshold of reliability. See USSG § 6A1.3. Corroborating evidence is often key to determining whether a statement is sufficiently reliable. See United States v. Todd, 515 F.3d 1128, 1136 & n. 6 (10th Cir. 2008) (affirming district court's reliance on hearsay evidence regarding drug sales by defendant where other evidence corroborated it); United States v. Fennell, 65 F.3d 812, 813-14 (10th Cir. 1995) (reversing district court where sentencing enhancement was based solely on hearsay statement by defendant's ex-girlfriend with no other corroborating evidence); United States v. Beaulieu, 893 F.2d 1177, 1181 (10th Cir. 1990) (affirming sentencing judge where enhancement based on defendant's leadership role in drug operation was "corroborated by physical and documentary evidence at the trial and by appellant's admissions at his sentencing hearing"). Here, the apparent ongoing drug distribution between Mr. Martinez and Ms. Madrid, coupled with the indicia of distribution previously described, tend to corroborate the government's claims regarding the additional six grams.
In making its determination, the Court cannot accept Mr. Martinez's argument that it should not attribute to Mr. Martinez the methamphetamine used personally by Ms. Madrid. Dkt. 96. In support of his argument, Mr. Martinez cites to United States v. Wilson, 17 F.4th 994 (10th Cir. 2021), in which the Court agreed with the defendant that amounts of methamphetamine that an individual possessed for his own personal use were "not relevant for sentencing." Id. at 998-99. The Tenth Circuit held that "any personal-use quantity should be excludable in this context," and remanded the case for Mr. Wilson to put on evidence of personal use. Id. at 998.
In contrast to the facts in Wilson, the evidence here demonstrates that Mr. Martinez distributed to Ms. Madrid and/or the CHS the total amount of the methamphetamine for which he is being held responsible. Unlike the defendant in Wilson, Mr. Martinez does not claim that any portion of the methamphetamine involved in this case was intended for his personal use; rather, the 26 grams for which he is held responsible had already been distributed by Mr. Martinez to Ms. Madrid and the CHS. Although Ms. Madrid swore under oath that the methamphetamine found was for her personal use, this fact does not affect the calculation of Mr. Martinez's base offense level, as there is no dispute that he distributed it to Ms. Madrid. What Ms. Madrid intended to do with the drugs after Mr. Martinez distributed them to her is of no legal relevance, and Wilson does not suggest to the contrary.
The Court reaches a different conclusion as to the 43.2 grams of marijuana found by law enforcement on August 6, 2020. As Wilson explains, a defendant who is sentenced for drug distribution is sentenced based only upon the quantity of drugs deemed "relevant conduct" to the offense. 17 F.4th at 1001. Relevant conduct is defined in USSG § 1B1.3, which reads in part:
[C]ross references in Chapter Two . . . shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity;
USSG § 1B1.3(1)-(2).
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense[.]
Probation appears to have determined that Mr. Martinez was responsible for the marijuana based on USSG § 1B1.3(1)(B); in other words, that there was "a jointly undertaken criminal activity." There is no evidence that the two were involved in jointly distributing drugs to others. Ms. Madrid was merely a consumer of the methamphetamine distributed to her by Mr. Martinez, and as the Tenth Circuit has noted, "a consumer generally does not share the distribution objective and thus would not be part of a conspiracy to distribute [a controlled substance]." United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992).
The Evans case discusses substantive conspiracy liability, not jointly undertaken criminal activity. However, as the Tenth Circuit has observed in other cases, USSG § 1B1.3's definition of jointly undertaken criminal activity "closely correspond[s] to the classic statement of the common law requirements for substantive conspiracy liability." United States v. Patton, 927 F.3d 1087, 1094 (10th Cir. 2019) (quoting United States v. Spotted Elk, 548 F.3d 641, 673 (8th Cir. 2008)). Therefore, the Court finds it appropriate to use this conspiracy-based case law to guide its analysis.
Nonetheless, "a consumer may conspire to possess [a controlled substance]." Here, however, the evidence does not support a finding that Mr. Martinez and Ms. Madrid conspired to possess marijuana. While the two arguably may have jointly agreed to possess methamphetamine, there is no indication that the scope of this agreement extended to marijuana. Nor is there any indication that they jointly agreed to possess the marijuana.
According to the PSR, the marijuana was found "in Madrid's purse and in a fanny pack." PSR ¶ 14. The government has presented no evidence indicating that either the purse or the fanny pack was ever used by or accessible to Mr. Martinez, and therefore there is no evidence from which to infer that he had any knowledge of the marijuana. And without any basis to infer Mr. Martinez's knowledge of the marijuana, there is equally no basis to infer that there was an implicit agreement between Ms. Madrid and Mr. Martinez to possess marijuana. The Court thus declines to hold Mr. Martinez responsible for the 43.2 grams of marijuana, which are not relevant conduct in Mr. Martinez's case and should not have been considered in calculating his base offense level.
For these reasons, Mr. Martinez's first objection is GRANTED IN PART, as follows: the Section 2K2.1(c)(1)(A) cross-reference is applicable and Mr. Martinez's base offense level was properly calculated under USSG § 2D1.1; however, Mr. Martinez should have only been held responsible for 26 grams of methamphetamine, and should not have been held responsible for the 43.2 grams of marijuana found in Ms. Madrid's personal effects. Therefore, Mr. Martinez's base offense level will be set at 26. PSR ¶ 24.
B. Second Objection to the Application of USSG § 2D1.1(b)(12)
Mr. Martinez additionally objects to the two-level enhancement that Probation imposed under USSG § 2D1.1(b)(12). Dkt. 82 at 4. The disputed enhancement applies "[i]f the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance." USSG § 2D1.1(b)(12).
Mr. Martinez and the government agree that the enhancement is inapplicable and should not be applied. Dkt. 89 at 12. ("The United States agrees with the defendant that there is not a preponderance of the evidence that drug-trafficking was one of the primary or principal purposes of the home that Martinez and Madrid shared."). In its Addendum, Probation asserts that the enhancement was properly applied, justifying it as follows:
Law enforcement personnel became aware of Martinez's drug activity when a confidential human source (CS) told law enforcement Martinez was trafficking drugs and that he sold drugs out of his residence as well as meeting buyers at various locations using different vehicles . . . . The CS indicated Martinez sold methamphetamine in large amounts and primarily sold to mid-level drug dealers . . . . Surveillance of Martinez, his residence, and his vehicles independently corroborated the information provided by the CS . . . . Specifically, during surveillance, law enforcement observed three people enter the residence and leave a short time later. Law enforcement determined this pattern of activity is consistent with drug trafficking. Additionally, Martinez was charged with felony drug offenses in Bernalillo County Metropolitan Court Case No. T-4-FR-2020-003619 [and] [t]hese charges were later dismissed without prejudice on the sole basis of the current federal prosecution. Furthermore, at the time the federal search warrant was executed at Martinez's residence for the instant offense, tools of the trade were located at the house, such as firearms, scales with residue, and plastic baggies, along with various controlled substances in multiple locations throughout the house. Based on this information, it appears Martinez conducted multiple drug transactions at his residence and the two-level increase . . . is correctly applied.Dkt. 98 at 3-4. While there may be a possible basis for the enhancement identified by Probation, given the government's concession that the enhancement is inapplicable, the Court will GRANT Mr. Martinez's objection. See United States v. Campbell, 372 F.3d 1179, 1183 (10th Cir. 2004) ("Under well-established Tenth Circuit precedent, the government has the burden of proving sentence enhancements and increases.") (citation omitted).
C. Third Objection to Use of an Incorrect Social Security Number
Mr. Martinez objects to the use of "an incorrect Social Security number" in the PSR. Dkt. 82 at 13. In its First Addendum, Probation noted that "the defendant's correct [S]ocial [S]ecurity number is listed on the bottom of page 2 of the PSR," that "[t]he [S]ocial [S]ecurity number is corrected by way of this addendum," and that "[t]he number listed as the defendant's true [S]ocial [S]ecurity number . . . will remain listed in the PSR as an alias [S]ocial [S]ecurity number." Dkt. 98 at 4. The Court finds Probation's explanation sufficient and accordingly, finds this objection MOOT.
D. Fourth Objection to Paragraph 13's Description of Plastic Baggies
Mr. Martinez objects to Paragraph 13 of the PSR, which states that "plastic baggies for drug trafficking" were found in Mr. Martinez's home. PSR ¶ 13; Dkt. 82 at 13. He "denies that plastic baggies were used for drug trafficking," but the government responded to this objection by providing pictures of the baggies and "submit[ting] that the small plastic baggies found in the residence . . . are consistent with drug-trafficking, particularly in light of all the other evidence." Dkt. 89 at 13. Probation responded that "[t]he FBI investigative report . . . describes the baggies as 'plastic baggies for drug trafficking,' " and takes the position that "this information will remain as written." Dkt. 98 at 4.
The baggies in question were found in the kitchen, where it is plausible that they might have been used for food storage; however, Mr. Martinez has never actually submitted evidence that this was the case. Thus, the evidence supporting his position is thin. At the same time, the evidence supporting Probation's position that the baggies were used "for drug trafficking" is also thin: it seems to be based on the FBI's description of the baggies and little else. No residue was found inside the baggies, and neither Mr. Martinez nor Ms. Madrid appears to have made statements regarding the use of the baggies. Nonetheless, examining the photographs submitted by the United States and considering the scales, drugs, and currency found inside the home, the Court does not believe that it goes too far to label the plastic baggies as "consistent with drug trafficking." For this reason, the Court will GRANT the objection IN PART and will order that the PSR's language be changed in this limited way.
E. Fifth Objection to Paragraph 16's Description of Statements by Mr. Martinez
Mr. Martinez objects to Paragraph 16 of the PSR, which "alleges that [he] told law enforcement agents that if the firearm were his that he would have used it." Dkt. 82 at 13; PSR ¶ 16. He denies making such a statement. Dkt. 82 at 13.
Given Mr. Martinez's objection, it is the government's burden to establish that he did, in fact, make this statement. See United States v. Johnson, 184 F. App'x 746, 749 (10th Cir. 2006) (government bore the burden of proof when the defendant denied gang membership, a § 3553(a) factor weighing in favor of a longer sentence). To establish that Mr. Martinez made this statement, the government pointed to the Complaint filed in this case, noting that "[o]fficers' observation of this statement was sworn to, under oath, by the complainant." Dkt. 89 at 13; see also Dkt. 115-2. Government counsel also noted that he had "spoken directly with the agent who heard Martinez make this statement and has no reason to doubt his veracity." Dkt. 89 at 13. Based on this response as well as an "FBI investigative report[ ] contained in the discovery file" and submitted as part of the Second Addendum, Probation refused to change the PSR to remove the reference to this statement by Mr. Martinez. Dkt. 98 at 5; Dkt. 115-3.
The Court will treat the government's representation on this issue as a proffer, unsupported by evidence.
Acknowledging that Mr. Martinez did not take the stand to testify at the evidentiary hearing, the Court will find that the government has met its burden. In reaching this decision, the Court finds that (1) the Criminal Complaint itself is reliable and (2) the Complaint's description of Mr. Martinez's conduct on August 6, 2020 is reliable. The fact that the Complaint was made under oath bolsters its credibility, as does the fact that it was written just one day after the events in question and the fact that its contents are corroborated by the FBI investigative reports. Dkt. 115-3 at ¶ 1. Therefore, the Court will DENY this objection.
F. Sixth Objection to Paragraph 18's Determination that Mr. Martinez Maintained a Premises for Manufacturing or Distributing a Controlled Substance
For the reasons described above, the Court will GRANT this objection.
G. Seventh Objection to Paragraph 19's Culpability Determination
Mr. Martinez objects to Paragraph 19 of the PSR, which states that he "appears to be more culpable than Madrid." Dkt. 82 at 14; PSR ¶ 19. He "denies that he was more culpable," and notes that "Ms. Madrid was the person indicted for drug trafficking, not Mr. Martinez." Dkt. 82 at 14. The government did not respond to this objection, but Probation decided that "this paragraph will remain as written" after noting that "the PSR goes on to state that Martinez was not a leader, manager, or supervisor." Dkt. 98 at 5.
Considering the evidence presented at Ms. Madrid's sentencing and at the evidentiary hearing in the instant case, in combination with the uncontested facts laid out in the PSR, the Court has made its own culpability determination and concludes that the PSR is correct: Mr. Martinez was, in this case, more culpable than Ms. Madrid. As discussed above, the Court has concluded that Mr. Martinez made at least one commercial drug sale before his arrest and regularly distributed methamphetamine to Ms. Madrid. Supra at 1187. In contrast, there is no evidence that Ms. Madrid ever engaged in drug trafficking in any way, but rather the evidence demonstrates that she used the methamphetamine she acquired for personal consumption. Therefore, the Court will DENY this objection.
H. Eighth Objection to Paragraph 40's Description of Prior Conviction
Mr. Martinez "denies any involvement or knowledge" of the incident described in Paragraph 40 of the PSR. Dkt. 82 at 14. That paragraph describes a prior conviction in Bernalillo County Metropolitan Court for (1) Possession of Drug Paraphernalia and (2) Criminal Trespass. PSR ¶ 40. In its First Addendum, Probation responded:
The information outlined in paragraph 40 is based on law enforcement records which identify the defendant by name,
birthdate, and Social Security number. Additionally, this information was included in the previous presentence report completed in Case No. 1:04CR02353-001LH. Therefore, the information appears correct and will remain as written.Dkt. 98 at 5. In its Second Addendum, Probation submitted the previous Presentence Report that it referenced, as well as the one police report on which it relied. Dkts. 115-4, 115-5. The previous Presentence Report, which the Court finds reliable does indeed reference this conviction. Dkt. 115-4 at ¶ 30. And the police report corroborates the information contained in the PSR, providing a thorough account of the March 31, 2000 arrest of a person who self-identified as David Martinez and whom others identified as David. See generally Dkt. 115-5. Having reviewed these records, the Court will DENY Mr. Martinez's objection.
I. Ninth Objection to Paragraph 43's Description of Prior Conviction
Mr. Martinez "denies any involvement or knowledge" of the incident described in Paragraph 43 of the PSR. Dkt. 82 at 14. That paragraph describes a prior conviction in Bernalillo County Metropolitan Court for Concealing Identity. PSR ¶ 43. In its First Addendum, Probation noted:
The information outlined in paragraph 43 is based on law enforcement records which identify the defendant by name, birthdate, and Social Security number. Additionally, this information was included in the previous presentence report completed in Case No. 1:04CR02353-001LH. However, upon further review of the court records, a court entry notes the defendant stated he was Anthony Martinez (defendant's brother) not David Martinez. The court entry indicates the defendant and defense counsel was to file a motion to correct. Therefore, despite the previously noted information, these entries shed doubt that this was the defendant and may in fact be the defendant's brother. The criminal history entry is removed by way of this addendum.Dkt. 98 at 56. Given Probation's response, this objection is now MOOT.
J. Tenth Objection to Paragraph 52's Description of Prior Arrest
Mr. Martinez "denies any involvement or knowledge" of the incident described in Paragraph 52 of the PSR. Dkt. 82 at 14. That paragraph describes an arrest by the Albuquerque Police Department for Driving While Intoxicated on June 19, 1993, during which Mr. Martinez allegedly had a BAC of 0.15% and, after being arrested, allegedly began to bang his head on the asphalt. PSR ¶ 52. According to Probation, "[t]he information outlined in paragraph 52 is based on information that was included in the previous presentence report." Dkt. 98 at 6. This incident is, indeed, described in the previous Presentence Report, and therefore the Court will OVERRULE Mr. Martinez's objection. Dkt. 115-4 at ¶ 27. However, given that the Presentence Report's account is not corroborated by any other documents, the Court will place little weight on this arrest when determining Mr. Martinez's sentence.
K. Eleventh Objection to Paragraph 54's Description of Prior Arrest
Mr. Martinez "denies any involvement or knowledge" of the incident described in Paragraph 54 of the PSR. Dkt. 82 at 14. That paragraph describes a January 3, 2000 arrest by the Albuquerque Police Department for Receiving or Transferring Motor Vehicle, where Mr. Martinez was allegedly found inside a stolen vehicle with one other man. PSR ¶ 54. Mr. Martinez later said that the vehicle was "controlled by the other male arrested at the time," and charges were not pursued. Id. After Mr. Martinez challenged this paragraph, Probation responded:
The information outlined in paragraph 54 is based on law enforcement records which identify the defendant by name, birthdate, and Social Security number. Additionally, this information was included in the previous presentence report completed in Case No. 1:04CR02353-001LH. The information appears correct and will remain as written.Dkt. 98 at 6. This incident is, indeed, described in the previous Presentence Report. Dkt. 115-4 at ¶ 43. And the police report submitted by Probation in its Second Addendum corroborates the information in the previous Presentence Report, describing the arrest in detail and identifying Mr. Martinez by his date of birth and Social Security number. See generally Dkt. 115-9. Based on this evidence, the Court will OVERRULE Mr. Martinez's objection.
L. Twelfth Objection to Paragraph 55's Description of Prior Arrest
Mr. Martinez "denies any involvement or knowledge" of the incident described in Paragraph 55 of the PSR. Dkt. 82 at 14. That paragraph describes a March 6, 2000 arrest by the Albuquerque Police Department for Driving on a Suspended License. PSR ¶ 55. This arrest is described in the previous Presentence Report but is not corroborated by any other records. Therefore, the Court will OVERRULE Mr. Martinez's objection but will place little weight on this arrest when determining Mr. Martinez's sentence.
M. Thirteenth Objection to Paragraph 57's Description of Prior Arrest
Mr. Martinez "denies any involvement or knowledge" of the incident described in Paragraph 57 of the PSR. Dkt. 82 at 14. That paragraph describes an arrest by the Albuquerque Police Department for Possession of Crack Cocaine on April 10, 2000 after Mr. Martinez was stopped and a search of his vehicle revealed two crack cocaine pipes, a small amount of crack cocaine in the ashtray, and other drug paraphernalia consistent with smoking crack cocaine. PSR ¶ 57. In its Second Addendum, Probation submitted two records referencing this arrest: the previous Presentence Report and a police report describing the incident and identifying Mr. Martinez by his date of birth and Social Security number. Dkts. 115-4 at ¶ 46, 115-10. Relying on these documents, the Court will OVERRULE Mr. Martinez's objection.
N. Fourteenth Objection to the Application USSG § 2K2.1(b)(1)(A)
Because the Court will apply the § 2K2.1(c)(1) cross-reference, argument over the application of § 2K2.1(b)(1)(A) as laid out in Probation's alternate calculation has been rendered MOOT. See Dkt. 115
O. Fifteenth Objection to the Application of § 2K2.1(b)(6)(B)
Similarly, because the Court will apply the § 2K2.1(c)(1) cross-reference, argument over the application of § 2K2.1(b)(6)(B) as laid out in Probation's alternate calculation has been rendered MOOT. See Dkt. 115.
II. Whether a Downward Variance is Appropriate Based on a Policy Disagreement with Cross-References
At his upcoming sentencing hearing, the Court will make findings as to the nature and circumstances of the offense, the history and characteristics of Mr. Martinez, the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, the need to afford adequate deterrence to criminal conduct, the need to protect the public, and the need to provide Mr. Martinez with needed correctional treatment. After considering the parties' arguments under 18 U.S.C. § 3553(a) at that hearing, the Court may consider imposing a downward variance based, in part, on a policy disagreement with the applicable Guidelines.
As the Tenth Circuit has held, "a district court has the discretion to vary from the recommended guideline range where the court determines such range is greater than necessary to achieve the sentencing objectives of § 3553(a)." United States v. Jackman, 512 F. App'x 750, 754, 753 (10th Cir. 2013) (citing Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)). "Such a decision to vary may be based on a categorical disagreement with the applicable guideline apart from individualized consideration of § 3553(a)'s sentencing factors." Id. Under Jackson and Kimbrough, the Court may decline to sentence Mr. Martinez to a sentence within the Guidelines range based on the cross-reference if it adheres to "the categorical view that [this] guideline, or some portion thereof, overstates the seriousness of [the individual's] offense." Id. at 754.
Cross-references are part of the Sentencing Guidelines' drive to eliminate the practice of "charge bargaining" and, therefore, to reduce sentencing disparities among similarly-situated individuals. See Gerald Leonard & Christine Dieter, Punishment Without Conviction: Controlling the Use of Unconvicted Conduct in Federal Sentencing, 17 Berkeley J. Crim. L. 260, 273 (2012) (describing how the United States Sentencing Commission could have chosen to implement a "charge offense" system, "in which the offender is punished strictly on the basis of the offense of conviction, without any attention to the particulars of the offense conduct or its context," but instead chose to create a "real offense system of sentencing," which "instructs the judge to use a defendant's conviction plus any number of contextual factors, specified by the Guidelines as relevant to the offense of conviction, to establish an offense level.").
The Court agrees that reducing sentencing disparities is a worthy goal. For example, if Defendant 1 is convicted of Felon in Possession of a Firearm after he committed an armed carjacking, he should generally receive a longer sentence than similarly-situated Defendant 2, who is convicted of Felon in Possession of a Firearm in a constructive possession situation, where the defendant was not involved in a violent crime at the time he was found with the firearm. However, the Court feels that cross-references often are ineffective at achieving this goal.
Indeed, criminal law practitioners and scholars have long criticized the use of cross-references in the federal sentencing guidelines. One 2006 article in The Champion vividly lays out this criticism in its opening paragraphs:
To laypersons and attorneys alike, it sounds like an illogical and grossly unfair idea: defendants pleading guilty to one crime and then being sentenced severely for a completely different act. Unfortunately, this travesty is reality in federal court, as implemented by a series of "cross references" within the United States Sentencing Guidelines. Aimed at capturing real offense conduct and preventing charge bargaining, cross references have long been identified as a trap for the unwary. In Blakely v. Washington, Justice Scalia expressed dismay at sentencing guidelines' tendency to punish defendants based upon uncharged, even acquitted, conduct. He noted that under such a system "a judge could sentence a man for committing
murder, even if the jury convicted him only of possessing the firearm used to commit it—or of making an illegal lane change while fleeing the death scene." Justice Scalia called such a sentence an "absurd result." . . . . [C]ross references still found within the now ostensibly advisory Sentencing Guidelines still embody Justice Scalia's proverbial "absurd result," and the government still too often utilizes this mechanism to prosecute defendants for nonviolent crimes, and then punish them for uncharged violent ones.Mark P. Rankin & Rachel R. May, Traps for the Unwary: Cross References and Guideline Sentencing, THE CHAMPION 52 (2006) (citations omitted).
Others have observed that the application of cross-references dovetails with other case law and with practical realities in ways that are particularly unfair to criminal defendants:
[T]he Supreme Court in United States v. Watts ruled that application of the preponderance standard to such evidence is appropriate when considering evidence at sentencing. However, there are no constraints on the types of evidence that may be considered . . . . It follows that such evidence may include inadmissible hearsay; acquitted conduct; and even evidence obtained by unconstitutional means, including coercion or torture. Exacerbating the situation . . . . since prosecutors control "facts" disclosed to probation officers in preparing the PSR, the rules "are not working as intended," and "tend to work in one direction, i.e., to the disadvantage of defendants."Orhun Hakan Yalinçak, Critical Analysis of Acquitted Conduct Sentencing in the U.S.: "Kafka-Esque," "Repugnant," "Uniquely Malevolent" and "Pernicious"?, 54 SANTA CLARA L. REV. 675, 718-20 (2014) (citations omitted).
For instance, where acquitted conduct is involved, "[prosecutors can] effect an end-run around the exclusionary rule by presenting evidence at sentencing that would be inadmissible at trial." Conversely, where charges were not brought or dropped, the same charges "can be 'proved' in a presentence report." When there are disputes regarding the "factual" statements in the PSR, the Government need not produce the purported source of the information in court . . . . This creates a "winner take all" system: the conviction on one-count of a multicount indictment is sufficient to trigger a Guideline range that is identical in terms of the penal consequences to a defendant as if he was convicted on the basis of allegations not proved, or even alleged in the trial phase. With such awesome power in the hand of the prosecutors, "[t]he inducement to plead guilty may be irresistible even to a defendant with a strong defense or who is actually innocent."
The application of the cross-reference in Mr. Martinez's case is troubling for several reasons. First, Mr. Martinez was never indicted for drug distribution or drug trafficking. See Dkt. 29. The government contends that he "was on notice about the possibility of an enhanced sentence from the initial stages of this case" because "[t]he original complaint charged [Mr.] Martinez with a drug-trafficking offense," as well as the fact that "the search warrant affidavit that he received in discovery described the government's investigation of his drug-trafficking activity," and "[Ms.] Madrid's plea agreement—in which she describes the defendant providing her with methamphetamine—was filed on the public docket weeks before [Mr.] Martinez entered his guilty plea." Dkt. 89 at 9. The Court acknowledges that these developments might have been enough to put a seasoned federal defense attorney on notice about the possibility that the cross-reference might be applied. But Mr. Martinez is not a seasoned federal defense attorney, and while the Court has confidence in the quality of defense counsel, the Court has no way of knowing whether defense counsel actually did speak with Mr. Martinez about the cross-reference before Mr. Martinez decided to enter a guilty plea. Certainly, the Court has seen cases in which defendants were unaware that the cross-reference might apply or did not understand counsel's explanation of the cross-reference—even after those same defendants had already entered a guilty plea. As others have noted, the Sentencing Guidelines "are growing in complexity, undermining their comprehension and ease of administration." Dawinder S. Sidhu, Towards the Second Founding of Federal Sentencing, 77 MD. L. REV. 485, 493 (2018). Cross-references are prime examples of this complexity, and the Court is concerned that defendants like Mr. Martinez may be blindsided by their application.
The parties appear to agree that the possibility of the application a cross-reference was discussed during plea negotiations. Evidentiary H'rg Tr. at 88:18-19. However, defense counsel made it abundantly clear that "the main reason why Mr. Martinez entered into the plea agreement" was to avoid a drug trafficking charge and its heightened penalties. Id. at 88:19-89:4.
That Mr. Martinez might be held responsible for drug trafficking because of hearsay attributable to an ex-girlfriend and an anonymous CHS highlights another issue with sentencings involving cross-references. Many such sentencings involve defendants who, like Mr. Martinez, were unable to plead to the conduct for which they might now be sentenced, because the prosecution determined, for whatever reason, not to charge the defendant for that conduct. A real possibility is that such charging determinations are made because flawed evidence would make it difficult to prove the offense beyond a reasonable doubt at trial. It follows that cases involving cross-references may disproportionately involve flawed evidence. The cross-reference, however, fails to account for that possibility. Thus, application of the cross-reference means that a defendant like Mr. Martinez, as to whom the evidence likely was deemed insufficient to support a drug trafficking charge, would be subject to the same sentence as a defendant for whom there is overwhelmingly probative evidence of drug trafficking.
Indeed, the government agrees that this is the case here. Evidentiary H'rg Tr. at 64:1-3 (". . . the government could not firmly conclude that we would firmly convince a jury beyond a reasonable doubt of those charges.").
Further, the Court is troubled by the fact that, although the cross-reference technically applies because of Mr. Martinez's drug distribution to Ms. Madrid, his conduct is distinguishable from that of the typical drug dealer who sells to unknown third parties. The Court believes that, by distributing methamphetamine to a loved one who was addicted to methamphetamine prior to meeting him, Mr. Martinez's culpability is lower than that of the typical drug dealer. Again, the cross-reference does not take this into account.
Thus, the Court has a policy disagreement with cross-references in general because they are often applied on the basis of uncharged conduct and supported by flawed evidence, resulting in the same Guidelines ranges for defendants who are not actually similarly situated at all. And, while the Guidelines range that is automatically "spit out" by the cross-reference is no longer binding on this Court, "[t]he sufficiency of math alone in sentencing is such that if a judge sentences within the Guidelines range, they need not provide any explanation or utter a single clarifying word . . . . Because a within-Guidelines sentence is presumed to be reasonable, a district judge need only allow the numbers to speak for themselves." Sidhu, supra p. 24, at 496. However, when the Court believes that the appropriate sentence falls outside of the cross-reference's guideline range—even if the Court believes that the most appropriate sentence is one within the range which would have applied without the cross-reference—the Court is subject to a more exacting standard of appellate review. District courts take the threat of reversal seriously; this Court is concerned that even this relatively light constraint on a district court's discretion may deter some judges from imposing lower sentences—even if they believe that those sentences are appropriate.
Given the Court's general concerns regarding cross-references and the specific worries raised here, the parties are invited to attend Mr. Martinez's sentencing hearing prepared to discuss whether, after considering the § 3553(a) factors, the Court should grant a variance for the aforementioned reasons.
CONCLUSION
IT IS ORDERED that Mr. Martinez's advisory Guidelines range is set at 63-78 months. Furthermore, the Court will consider whether a variance is warranted, based inter alia on a policy disagreement, when it conducts its 18 U.S.C. § 3553 evaluation at Mr. Martinez's to-be-scheduled sentencing hearing.