Opinion
No. 03-40126-01-SAC.
October 4, 2005
RULING ON OBJECTIONS TO PRESENTENCE REPORT
Alex Orozco is the sole defendant named in a single count indictment returned on November 6, 2003, that charged the distribution of 540 grams of methamphetamine. The defendant pleaded guilty on May 18, 2005, to a single count information that charged him with distribution of 449.57 grams of methamphetamine. Pursuant to the plea agreement, it was agreed that the defendant's failure to appear for court disqualified him from an acceptance of responsibility adjustment and entitled the government to argue for an obstruction of justice enhancement. The presentence report recommends a base offense level of 34 (2.27 kilograms of methamphetamine mixture) and a two-level enhancement for obstruction of justice for a total offense of 36, a criminal history category of two, and a resulting guideline range of 210 to 262 months.
The defendant's retained counsel did not file any objections with the PSR writer but has submitted a sentencing memorandum arguing that United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), precludes this court from considering any drug amounts beyond those admitted by the defendant at the time of his plea. The defendant also asserts that "the Government agreed to allow the Defendant to plead to the amount that was charged, and agreed that additional amounts were covered by `1B1.8.'" (Dk. 55, at p. 3).
The government responded that the U.S.S.G. § 1B1.8 memorandum between the government and the defendant's former counsel did not cover the defendant's statements made during the initial interviews that occurred in October of 2003 before the case was ever presented to United States Attorney's Officer for possible federal prosecution. The government explains that it did not prosecute the defendant for the larger amounts of cocaine to which he admitted in October of 2003, as the government did not have other evidence to corroborate these earlier amounts. On whether to hold the defendant accountable at sentencing for those admitted amounts, the government says it did not intend to limit the court's authority to consider relevant conduct and the plea agreement does not do so. The government counsel, however, admits that he had misread the recent case law on the court's authority to consider relevant conduct and that he had shared this erroneous opinion with defense counsel apparently during plea negotiations. The government counsel is to be commended for his candid admissions. The government offers that if its position as explained has created a problem, then the court in its discretion may fashion an appropriate remedy.
After Booker, sentencing courts no longer mandatorily apply the guidelines but rather consult them along with the other factors set forth in 18 U.S.C. § 3553(a) before imposing the sentence. Booker, 125 S. Ct. at 764-67. A sentencing court now must calculate the guideline range, review other relevant factors in the guidelines and § 3553(a), and impose a reasonable sentence. See United States v. Hopkins, 128 Fed. Appx. 51, 56, 2005 WL 827135 at *5 (10th Cir. 2005). The guidelines remain "important to the overall reasonableness of any sentence imposed by a court post- Booker." United States v. Taylor, 413 F.3d 1146, 1152 (10th Cir. 2005) (citation omitted).
Though Booker made the guidelines "effectively advisory," it did not change the sentencing court's power to consider and sentence for relevant conduct using a preponderance of evidence standard. United States v. Magallenez, 408 F.3d 672, 684-85 (10th Cir. 2005), petition for cert. filed, ___ U.S.L.W. ___ (Sep. 7, 2005) (No. 05-6316). Sentencing courts "can continue to apply Guidelines enhancements and adjustments as long as they do not do so in a mandatory manner." United States v. Lawrence, 405 F.3d 888, 908 (10th Cir. 2005), petition for cert. filed, ___ U.S.L.W. ___ (Aug. 30, 2005) (No. 05-6306). The defendant misreads Booker and its progeny in arguing that this court may not consider relevant conduct in consulting the guidelines unless the conduct was admitted by him or found by the jury beyond a reasonable doubt.
The defendant's alternative argument is that the government agreed any additional amount of drugs beyond that admitted in the plea would be covered by U.S.S.G. § 1B1.8. This provision is inapplicable as the government knew about the defendant's initial interview statements prior to the cooperation agreement.
The court certainly believes it would have been reasonable for the defendant to have relied upon the government's statements and opinions concerning relevant conduct matters in deciding whether to enter into the plea agreement. Based on the parties' representations and objections, the court finds that the spirit of the plea agreement was that the defendant would be held accountable only for that amount of drugs to which he admitted in his plea. Believing the parties' representations and wanting to uphold the intended scope of a reasonable plea agreement, the court will sentence the defendant based only on the 449.57 grams of methamphetamine charged in the information and admitted by the defendant at his plea. For purposes of the sentencing guidelines, the defendant's base offense level is 30 resulting in a total offense level of 32 and a guideline range of 135 to 168 months.
IT IS THEREFORE ORDERED that the defendant's objection to the relevant conduct amount found in the PSR is sustained on the ground stated above.