United States v. Jaimes-Molina

UNITED STATES OF AMERICA v. IVAN JAIMES-MOLINA

CAUSE NO.: 1:17-CR-69-HAB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

September 9, 2019

OPINION AND ORDER

The Defendant, Ivan Jaimes-Molina, is awaiting sentencing on his plea of guilty to possessing with intent to distribute more than 50 grams of methamphetamine, a violation of 21 U.S.C. § 851(a)(1). The Government has agreed, in a written plea agreement, to dismiss Count 2 of the Indictment, charging Defendant with unlawful possession of a firearm by a prohibited person, which Defendant was by virtue of his status as an illegal alien. See 18 U.S.C. § 922(g)(5).

The probation officer drafted a Presentence Investigation Report (PSR) in preparation for sentencing. The Defendant has lodged two objections to the PSR. He also asserts that he is eligible for the Safety Valve provision of U.S.S.G. § 5C1.2 and that a term of imprisonment below the advisory Guideline range is sufficient but not greater than necessary to meet the purposes of punishment. The Government contends that the objections should be overruled, and that the application of the enhancements thus render Defendant ineligible for the Safety Valve.

BACKGROUND

During the course of a late-night traffic stop on November 29, 2017, Sgt. Todd McCormick searched the trunk of the vehicle Defendant had been driving. In the spare tire compartment of the trunk, he found two packages of drugs. Later testing confirmed that they contained 361.7 grams of marijuana and 398.6 grams of 100% pure methamphetamine. As Sgt. McCormick was using his knife to try to look inside the packages, Defendant, who had been standing only a couple feet away watching the search, lunged at Sgt. McCormick and two-hand shoved him in the chest. The force caused Sgt. McCormick to move backwards, including part way down an embankment. Defendant fled on foot. He was later found and arrested.

Also located in the tire compartment area next to the packages of drugs, was a box containing a Sig Sauer P938 pistol with two unloaded magazines and a gunlock. It appeared to have powder residue on the outside of the frame and inside the chamber of the firearm.

During Defendant's change of plea hearing on March 28, 2019, the Magistrate Judge discussed the terms of Defendant's written Plea Agreement. This included the parties' agreement that "for purposes of applying the United States Sentencing Guidelines: to the Drug Quantity Table in U.S.S.G. §2D1.1, that the amount of controlled substances involved in my offense of conviction including relevant conduct was at least 150 grams but less than 500 grams of methamphetamine (actual); and that a dangerous weapon (including a firearm) was possessed." (Plea Agreement ¶ 8.c.iii, ECF No. 52.)

The PSR records a base offense level of 32 under U.S.S.G. § 2D1.1 based on the quantity of drugs. Further, because Defendant possessed a Sig Sauer P938 firearm, which was located in the same tire compartment as the drugs, the probation officer applied a two-level increase to the base offense level under § 2D1.1(b)(1). It was increased anadditional two levels under § 2D1.1(b)(2) on grounds that Defendant used violence when he "lunged at [Sgt. McCormick] (who had a knife in his hand to open the drug packages), grabbed him, and shoved him backwards, which caused [Sgt. McCormick] to fall partially down an embankment." (PSR ¶ 23.) After receiving the reductions for acceptance of responsibility, Defendant's adjusted total offense level was 33. Combined with a criminal history category of I, Defendant's advisory Guideline range, as currently calculated is 135 to 168 months. The statutory mandatory minimum term of imprisonment is ten years. See 21 U.S.C. § 841(b)(1)(A).

ANALYSIS

A. Section 2D1.1(b)(1)

Defendant lodges two challenges to the enhancement under § 2D1.1(b)(1), which applies to a drug offense "if a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). First, he argues that the firearm, in addition to meeting the definition of a "firearm," must meet the definition of a "dangerous weapon." Defendant contends that the firearm was not dangerous at the time of the traffic stop because it was unloaded, and there was no ammunition readily available with which to load it. Second, he asserts that, although the firearm was inside the vehicle he was operating, it is clearly improbable that the weapon was connected with the drug offense because the gun was unloaded and inaccessible.

In advancing the position that the firearm was not connected to drug trafficking, Defendant considers it significant that the Government did not charge him with violating 18 U.S.C. § 924(c), possession of a firearm in furtherance of drug trafficking. The Courttakes a moment to dispel any thought that § 924(c) and § 2D1.1(b)(1) are co-extensive. See United States v. Berkey, 161 F.3d 1099, 1102 (7th Cir. 1998) (explaining the differences between § 924(c) and § 2D1.1(b)(1)); United States v. Carmack, 100 F.3d 1271, 1279-80 (7th Cir. 1996) (same). "The criminal offense requires proof that the defendant 'used' or 'carried' the weapon in the course of the drug offense, while an enhancement under § 2D1.1(b)(1) is appropriate for simple, and entirely passive, possession." United States v. Booker, 115 F.3d 442, 443 (7th Cir. 1997) (internal citation omitted); see also Berkey, 161 F.3d at 1102 (stating that the enhancement did not require the government to "show that the defendant used the firearm during the commission of a drug sale, but only that he possessed the firearm during the offense that led to the conviction, or during relevant conduct, as defined by U.S.S.G. § 1B1.3," which is a "relatively low threshold"). There can be no doubt that § 2D1.1(b)(1) "casts a wider net than § 924(c)." Carmack, 100 F.3d at 1280.

Moreover, a conviction under § 924(c) would have required the Government to prove the elements of the offense beyond a reasonable doubt. United States v. Thomas, 294 F.3d 899, 906 (7th Cir. 2002) (noting that the Government would have to prove use of the firearm beyond a reasonable doubt). In contrast, the preponderance of the evidence standard applies to facts that are relevant to sentencing. United States v. England, 555 F.3d 616, 622 (7th Cir. 2009); United States v. Krieger, 628 F.3d 857, 862 (7th Cir. 2010) (advising that sentencing factors that do not increase the defendant's sentence beyond the statutory range may be found by the court at sentencing by a preponderance of the evidence). Additionally, for the particular enhancement at issue, Defendant has a burden of persuasion if the Government first shows "by a preponderance of the evidence that thedefendant possessed a firearm in a place where drugs were present[.] [T]he adjustment should be applied unless it is clearly improbable that the weapon was connected with the offense." Booker, 115 F.3d at 443 (quotation marks, brackets, and ellipses omitted); U.S.S.G. § 2D1.1 Application Note 11.

Here, the firearm was transported in the same compartment of the vehicle as were distribution quantities of methamphetamine and marijuana. At the point in time when Defendant stopped his vehicle and retrieved the drugs, he would have also had access to the firearm. The Court agrees with the Government's argument that, whether unloaded or even inoperable, a gun could be displayed or carried to convey a warning to those who might contemplate stealing the drugs. Also, nothing prevented Defendant from obtaining ammunition before or upon reaching his destination of distribution activity. The mere act of displaying the gun, loaded or not, in connection with the possession of drugs could have prompted a violent response, and thus "increased [the] danger of violence"—the very concern the enhancement is intended to address. U.S.S.G. § 2D1.1(b)(1) Application Note 11.A. There is no language in § 2D1.1(b)(1) requiring that the defendant used, intended to use, or was poised to use the weapon because "[t]he weapons enhancement reflects the Sentencing Commission's general determination that the possession of weapons by drug traffickers increases the danger of violence." United States v. Wetwattana, 94 F.3d 280, 285 (7th Cir. 1996).¹

The facts of this case are much different from the Sentencing Commission's example of when a firearm, although present, would not be connected to the offense: "if the defendant, arrested at the defendant's residence, had an unloaded hunting rifle in the closet." § 2D1.1(b)(1) Application Note 11.A. In the example, it is not merely the fact that the weapon was unloaded that made it clearly improbable that it was connected to the drug offense. It was the type of weapon (a hunting rifle) and where it was located (in a home owner's closet), in combination with being unloaded, that made it clearly improbable that the weapon was connected to the drug offense and increased the danger of violence.

By contrast, "[g]uns found in close proximity to illegal drugs are presumptively considered to have been used in connection with the drug trafficking offense." United States v. Grimm, 170 F.3d 760, 767 (7th Cir. 1999); see also United States v. Corral, 324 F.3d 866, 873 (7th Cir. 2003) (citing the Seventh Circuit's position that "guns found in close proximity to drug activity are presumptively connected to that activity"); United States v. Johnson, 227 F.3d 807, 814 (7th Cir. 2000) (The "proximity of a weapon to drug proceeds provides a sufficient nexus to conclude that it was not clearly improbable that the gun was connected with the offense.") (internal quotations omitted)). Defendant, who has not offered any evidence, has not persuaded the Court that there was any other reason for the presence of the gun with the drugs. Cf. United States v. Corral, 324 F.3d 866, 873 (7th Cir. 2003) ("There is no other explanation for the presence of the gun in that apartment than to utilize it in connection with the drug activity taking place inside.") While a loaded...