United States v. Burciaga-Duarte

UNITED STATES OF AMERICA, Plaintiff, v. RAUL BURCIAGA-DUARTE, Defendant.

No. CR 14-0592 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 9, 2015

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendant Raul Burciaga-Duarte's sentencing. The Court held a sentencing hearing on August 8, 2014. The primary issue is whether the Court should sentence Burciaga-Duarte to a sentence at the low end of the Sentencing Guidelines range of 57 to 71 months, which the statutory minimum under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) cuts off at 60 months. Because the Court is concerned about the effect of the Executive Branch's policy of inconsistently prosecuting federal marijuana laws across the country, the Court will sentence Burciaga-Duarte to the statutory minimum of sixty-months imprisonment.

FACTUAL BACKGROUND

The Court takes its facts from the Presentence Investigation Report, disclosed June 25, 2014 ("PSR"), that the United States Probation Office ("USPO") prepared. On February 4, 2014, a 1994 white Chevrolet Suburban bearing a Mexican license plate attempted to enter the United States from Mexico through the Presidio, Texas, Port of Entry. See PSR ¶ 12, at 4. Customs and Border Protection ("CBP") officers used a fiber optic scope to exam the Suburban's fuel tank and discovered metal boxes concealed inside. See PSR ¶ 12, at 4. CBP officers thensent the Suburban through an x-ray machine, which revealed four large non-factory boxes hidden in the fuel tank. See PSR ¶ 12, at 4.

Suspecting that the boxes contained illegal drugs, Homeland Security Investigations ("HSI") agents decided to escort the Suburban to its original destination: a hotel parking lot located on Interstate 40 and Eubank in Albuquerque, New Mexico. See PSR ¶ 13, at 4. An undercover agent accompanied the Suburban's driver on the trip. See PSR ¶ 13, at 4. Two men -- later identified as Alfredo Arroyo-Dominguez and Burciaga-Duarte -- arrived in a red Pontiac sedan to pick up the Suburban. See PSR ¶ 13, at 4. The undercover agent handed the Suburban's keys to Burciaga-Duarte, who then handed the keys to Arroyo-Dominguez. See PSR ¶ 13, at 4. Burciaga-Duarte instructed Arroyo-Dominquez to take the Suburban to Burciaga-Duarte's residence. See PSR ¶ 13, at 4. The undercover agent and Burciaga-Duarte walked back to the Pontiac, and Burciaga-Duarte paid the agent $1,000.00. See PSR ¶ 13, at 4. Burciaga-Duarte told the undercover agent that he would be working on the Suburban in the morning and that he did not know when he would return it. See PSR ¶ 13, at 4. Burciaga-Duarte asked the undercover agent if he knew where "it" -- i.e., the marijuana -- was located inside the Suburban. See PSR ¶ 13, at 4. The undercover agent replied that he did not know where it was and that he was just the driver. See PSR ¶ 13, at 4.

Agents followed Arroyo-Dominquez, who drove the Suburban, and Burciaga-Duarte, who drove the Pontiac, to a trailer¹ on Atrisco Vista Boulevard in Albuquerque. See PSR ¶ 14, at 4. Arroyo-Dominguez subsequently drove away from the trailer in the Pontiac. See PSR ¶ 19, at 5. Agents conducted a traffic stop of the Pontiac and took Arroyo-Dominguez to the HSIAlbuquerque office. See PSR ¶ 19, at 5. There, Arroyo-Dominguez told the agents that Burciaga-Duarte asked him to pick up a vehicle at a hotel, because it needed mechanical work. See PSR ¶ 19, at 5. The criminal complaint against Arroyo-Dominguez was dismissed the following day for insufficient evidence. See PSR ¶ 19, at 5.

After Arroyo-Dominguez left the trailer, the agents conducted a "knock and talk" at the trailer, and encountered Burciaga-Duarte and Rafael Ortiz-Carillo. PSR ¶ 14, at 4. Burciaga-Duarte said that he owned the trailer and gave consent for the agents to search it. See PSR ¶ 14, at 4. Inside the trailer, agents found keys to the Suburban, Burciaga-Duarte's cellular telephone, and a loaded nine-millimeter Ruger pistol under Burciaga-Duarte's mattress in his bedroom. See PSR ¶ 15, at 4. Agents also discovered: (i) four rounds of Winchester nine-millimeter Luger ammunition; (ii) four rounds of DNL nine-millimeter Luger ammunition; and (iii) one round of PMC nine-millimeter Luger ammunition. See PSR ¶ 15, at 4-5. The agents subsequently arrested Burciaga-Duarte. See PSR ¶ 16, at 5.

After he was arrested, Burciaga-Duarte agreed to talk with the agents. See PSR ¶ 16, at 5. He said that a person that he knew only as "Sergio" asked him to pick up the Suburban and take it to Burciaga-Duarte's house. PSR ¶ 16, at 5. Burciaga-Duarte said that Sergio lived in Mexico. See PSR ¶ 16, at 5. After initially saying that he did not know there were illegal drugs in the Suburban, Burciaga-Duarte admitted that he knew it contained drugs but did not know the drugs' type or quantity. See PSR ¶ 16, at 5. Burciaga-Duarte admitted that he owned the handgun found under his mattress and that he bought it four or five years ago from an unidentified male in Bernalillo, New Mexico. See PSR ¶¶ 16-17, at 5.

Burciaga-Duarte acknowledged that he is a Mexican citizen who is unlawfully living in the United States. See PSR ¶ 17, at 5. Agents asked Burciaga-Duarte if he knew that it wasillegal for an undocumented immigrant to possess a firearm, and Burciaga-Duarte said that he did. See PSR ¶ 17, at 5. Burciaga-Duarte told the agents that Rafael Ortiz-Carillo was his roommate and had nothing to do with the drug-smuggling operation. See PSR ¶ 18, at 5. Ortiz-Carillo later confirmed this information and said that he had never seen the Suburban before that day. See PSR ¶ 18, at 5. Burciaga-Duarte also reported that Arroyo-Dominguez had no knowledge of the drugs and was just doing Burciaga-Duarte a favor. See PSR ¶ 18, at 5.

Agents took the Suburban to the Albuquerque Police Department's Secure Evidence Storage to dismantle the fuel tank. See PSR ¶ 20, at 5. The fuel tank contained four metal boxes that were welded shut. See PSR ¶ 20, at 5. The agents were eventually able to break open one of the boxes and found a green leafy substance inside that field-tested positive for marijuana. See PSR ¶ 20, at 5. The agents were not able to extract the marijuana from the other boxes and the marijuana was transported to the El Paso, Texas, HSI Seized Property specialist. See PSR ¶ 20, at 5. In El Paso, the remainder of the marijuana was extracted from the metal boxes. See PSR ¶ 20, at 5. In total, the marijuana weighed 104 kilograms. See PSR ¶ 20, at 5.

PROCEDURAL BACKGROUND

On May 9, 2015, Burciaga-Duarte pled guilty to possessing with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). See Plea Agreement, filed May 9, 2014 (Doc. 27)("Plea Agreement"). In the PSR, the USPO gives Burciaga-Duarte a base offense level of 26. See PSR ¶ 27, at 6. The USPO then adds 2 levels under § 2D1.1(b)(1) for possessing a firearm during the commission of a drug offense and subtracts 3 levels under § 3E1.1 for timely acceptance of responsibility, giving Burciaga-Duarte a total offense level of 25. See PSR ¶¶ 28-36, at 6-7. The USPO notes that, because there was no evidence suggesting that Burciaga-Duarte directed the drug courier, an aggravating-roleadjustment under § 3B1.1 is not warranted. See PSR ¶ 22, at 5-6. Based on a 2011 conviction for driving while intoxicated, the PSR assess Burciaga-Duarte a criminal history score of 1, which places him in criminal history category I. See PSR ¶¶ 40-41, at 8. Matching a criminal history category of I with a total offense level of 25 gives Burciaga-Duarte a Guidelines imprisonment range of fifty-seven to seventy-one months. See PSR ¶ 67, at 12. Because §§ 841(a)(1) and (b)(1)(B) mandate a five-year minimum term of imprisonment for Burciaga-Duarte, however, his Guidelines imprisonment range is sixty to seventy-one months. See PSR ¶ 66, at 12.

The Court held a sentencing hearing on August 8, 2014.² See Transcript of Hearing (taken August 8, 2014)("Tr.").³ Burciaga-Duarte took the floor first, and said that he fully accepts responsibility for his actions, and that he has done everything he can to cooperate with the United States. See Tr. at 6:1-7 (Gleria). Burciaga-Duarte said that he is a family person, he has a brother and four children living in the United States, and he has lived in the United States for many years. See Tr. at 6:7-16 (Gleria). The United States said that it did not oppose a sentence at the low end of the Guidelines range for Burciaga-Duarte. See Tr. at 7:19-25 (Hurtado).

The Court noted that it was the first case involving solely marijuana that it had seen in many months and maybe even years. See Tr. at 8:22-24 (Court). The Court asked the United States if it was troubled by the fact that the Department of Justice ("DOJ") is not prosecuting marijuana cases in Colorado and Washington, but is willing to prosecute a Mexico citizen inNew Mexico. See Tr. at 9:1-5 (Court). The United States said that it was not troubled by that fact, because the safety-valve provision is in place to allow certain defendants to be sentenced under the mandatory minimum. See Tr. at 9:6-10 (Court). The United States noted that Burciaga-Duarte is not safety-valve eligible, because he admitted to possessing a firearm. See Tr. at 9:12-23 (Hurtado). The Court sentenced Burciaga-Duarte to sixty-months imprisonment, but noted that it was concerned about the DOJ's policy of turning a blind eye to marijuana distribution in certain states, but then prosecuting people in New Mexico for those same crimes. See Tr. at 15:2-14 (Court).

LAW REGARDING THE UNITED STATES SENTENCING GUIDELINES

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, thus making the Guidelines sentencing ranges effectively advisory. See 543 U.S. at 245. In excising the two sections, the Supreme Court left the remainder of ...