Opinion
No. 03-40059-01-SAC.
May 24, 2004
RULING ON OBJECTIONS TO PRESENTENCE REPORT
Jorge Flores-Maya was charged in a single count drug trafficking indictment. The defendant pleaded guilty to possession with the intent to distribute 500 grams or more of cocaine in exchange for the government's agreement to, in part, recommend the maximum adjustment for acceptance of responsibility, not oppose a sentence at the lower end of the guideline range, not oppose a two-level reduction for role in the offense, and not oppose application of the safety valve provision if the defendant otherwise met the five factors. The Presentence Report ("PSR" calculates a base offense level of 30 and a three-level reduction for acceptance of responsibility. Using a total offense level of 27 and a criminal history category of two, the PSR recommends a sentencing guideline range of 78 to 97 months.
DEFENDANT'S OBJECTION NO. 1: The defendant objects that he was not afforded a two-level minor role reduction for being a simple courier directed by others. The defendant denies having any responsibility other than transporting the cocaine. The defendant also emphasizes that the government agreed not to oppose a minor role reduction.
Ruling: A minor participant reduction applies to "a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant." U.S.S.G. § 3B1.2, comment. (n. 3(A)). This inquiry must "focus upon the defendant's knowledge or lack thereof concerning the scope and structure of the enterprise and of the activities of others involved in the offense." United States v. Calderon-Porras, 911 F.2d 421, 423-24 (10th Cir. 1990). The defendant has the burden of proving his minor participation. United States v. Harfst, 168 F.3d 398, 401-02 (10th Cir. 1999).
The undisputed facts in the PSR suffice in proving he was a minor participant and is entitled to a two-level minor role reduction. The defendant did not orchestrate the sale of drugs, did not have any decision-making authority with regards to the drug trafficking scheme, and was not involved in the proceeds from the sales. His knowledge was commensurate with what would be expected for a mere courier. There is no evidence that he had knowledge of the scope and structure of the drug trafficking enterprise or of the activities of others involved in the enterprise except for those from whom he received his directions for transportation. The court sustains the defendant's objection and permits a two-level reduction under U.S.S.G. § 3B1.2(b).
DEFENDANT'S OBJECTION NO. 2: The defendant argues he should be afforded a downward departure to the mandatory minimum of sixty months based on the fact that he is a permanent legal resident who is likely to be deported following his sentence. Asserting that INS detainees are subject to more severe treatment by the Bureau of Prisons, the defendant insists a departure is appropriate because his conviction is not an immigration offense.
Ruling: For purposes of this case, the court will assume it has the discretion to depart on the basis now argued by the defendant. The court, however, is not persuaded that the circumstances show the collateral consequences from the defendant's status are so atypical and extraordinary as to warrant a downward departure. The defendant has not shown any exceptional circumstances to his case. The court denies the defendant's request for a downward departure based on the arguments found in the PSR addendum. Should the defendant present new arguments or evidence at the sentencing hearing, the court will reconsider its ruling.
By reason of the above rulings, the defendant's total offense level is 25 resulting in a sentencing guideline range of 63 to 78 months.
IT IS THEREFORE ORDERED that the defendant's objections to the PSR are granted in part and denied in part.