United States v. Reyes Filiciano

676 F.Supp.3d 1045

UNITED STATES of America, Plaintiff, v. Silvestre REYES FILICIANO, Defendant.

Case No. 08-CR-1412

United States District Court, D. New Mexico

Signed June 8, 2023

Jon K. Stanford, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, SENIOR UNITED STATES DISTRICT JUDGE

Silvestre Reyes Filiciano, who is currently housed at the medium security Federal Correctional Institution in Victorville, California ("FCI Victorville Medium I"), has applied for compassionate release, in the form of his immediate release from custody, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Dkt. 142. In support, Mr. Reyes Filiciano cites various medical issues that he has experienced during his confinement, as well as the risk of serious harm or death he faces given the ongoing existence of COVID-19. Id. at 13-19. The Government opposes the motion. Dkt. 143. As set forth in the remainder of this Order, the Court GRANTS Mr. Reyes Filiciano's request, reducing his term of imprisonment to time served, and recommends that Immigration and Customs Enforcement ("ICE") begin removal proceedings immediately.

BACKGROUND

On June 5, 2008, the government charged Mr. Reyes Filiciano and two other men—Daniel Gonzales Orduño and Luis Javier Rodriguez Parra—in a criminal complaint with Conspiracy to Possess with Intent to Distribute 500 grams and more of a Mixture and/or Substance Containing Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and Aiding and Abetting, in violation of 18 U.S.C. § 2. Dkt. 1. The government subsequently indicted Mr. Reyes Filiciano and his coconspirators on three counts: 1) Conspiracy under 21 U.S.C. § 846, 2) Possession with Intent to Distribute 500 grams and more of a Mixture and Substance Containing Methamphetamine and Aiding and Abetting under 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2, and 3) Carrying a Firearm During and in Relation to a Drug Trafficking Crime and Aiding and Abetting under 18 U.S.C. §§ 924(c)(1)(A) and 2. Dkt. 17. The Honorable Bruce D. Black was assigned the case. Minute Entry for June 24, 2008.

I. Mr. Reyes Filiciano participated in a short-lived conspiracy to distribute methamphetamine.

The charges against Mr. Reyes Filiciano, Mr. Gonzales Orduño, and Mr. Rodriguez Parra involved a conspiracy to effectuate the sale of methamphetamine to an undercover Drug Enforcement Administration ("DEA") agent. Final Presentence Investigation Report ("PSR" (Dkt. 142-1)) ¶ 9. As described in the PSR adopted by Judge Black at sentencing, the investigation of this conspiracy began on May 20, 2008, when DEA agents met with a confidential source ("CS") who indicated that they knew of someone looking to sell large quantities of methamphetamine. PSR ¶ 10. The CS provided the agents with a telephone number for the individual and notified them that he drove a black and grey Ford truck. Id. The CS also promised to give him the agent's cellular telephone number so that he could get in touch regarding a sale. Id.

Later that day, DEA agents received a call from the individual in question, subsequently identified as Daniel Gonzales Orduño, and spoke to him about purchasing multiple pounds of methamphetamine. PSR ¶ 11. The two discussed price ($16, 000/pound), purity (70%), and logistics (the agent purportedly lived in Oklahoma). Id. Mr. Gonzales Orduño notified the agent that he currently had approximately two and a half pounds, and the agent made it clear that he would call back when he received enough money to purchase the methamphetamine. Id. From the start, it appeared as though Mr. Gonzales Orduño was directing the operation.

The DEA agent called Mr. Gonzales Orduño back the following day, disclosing that he was still waiting for the funds but was interested in purchasing four pounds of methamphetamine. PSR ¶ 12. Mr. Gonzales Orduño told the agent that he was out but would have more by the following Monday or Tuesday. Id. He added that his product sold very quickly, and that he largely worked on a "per order" basis. Id. The two went on to discuss pick-up logistics in Albuquerque, including Mr. Gonzales Orduño representing that he would soon be in possession of a vehicle with a compartment that could hold up to ten pounds of concealed drugs. PSR ¶ 13. Mr. Gonzales Orduño told the agent that he would call him when the vehicle arrived. Id.

On May 26, the agent received that call from Mr. Gonzales Orduño. PSR ¶ 14. The two discussed the logistics of the proposed meeting, and Mr. Gonzales Orduño asked if the agent was okay with receiving only four pounds of methamphetamine (though more was reportedly arriving). Id. Later that day, in another phone call between the two (this time placed by the agent), the agent confirmed that everything was in place for the two to meet in Albuquerque on May 28. PSR ¶ 15. However, on the day the transaction was supposed to occur, the agent received a call from Mr. Gonzales Orduño indicating that there was a problem with the transport vehicle. PSR ¶ 16. A new transmission would have to be installed, and he would call the agent back once the vehicle was on its way to Albuquerque. Id. In this conversation, Mr. Gonzales Orduño also gave the agent advice on the best days to travel from Oklahoma in order to avoid being stopped by law enforcement. Id.

On June 3, the agent received a telephone call from Mr. Gonzales Orduño, who stated that "they" were leaving and would be back in Albuquerque by the evening. PSR ¶ 17. Mr. Gonzales Orduño asked if the agent would be willing to meet the following morning. Id. The agent agreed, and Mr. Gonzales Orduño told the agent to call him when he arrived in Albuquerque. Id. The next day, the agent traveled to the Home Depot parking lot on Coors Boulevard in Albuquerque in anticipation of the meeting. PSR ¶ 18. The agent called Mr. Gonzales Orduño from the parking lot and notified him of his location. Id. Mr. Gonzales Orduño indicated that he needed to pick up the order and that he would call back soon. Id. A short time later, the agent received a call from Mr. Gonzales Orduño, who stated that he was going to send a muchacho (Spanish for boy and indicative of the drug operation's power structure) to meet the agent so that he could follow him to a trailer where the deal would take place. PSR ¶ 19. The agent then asked Mr. Gonzales Orduño if the muchacho would have the methamphetamine on him, to which Mr. Gonzales Orduño responded that he would and that he would show it to him. Id. Mr. Gonzales Orduño then disclosed that the muchacho would arrive in a black and grey Ford truck. Id. As the agent was speaking with Mr. Gonzales Orduño, the truck arrived and stopped behind the agent's vehicle. Id.

The agent exited his vehicle and motioned to the driver and only occupant of the truck, later identified as Luis Javier Rodriguez Parra, to park next to the agent's vehicle. PSR ¶ 20. He then approached Mr. Rodriguez Parra, who asked him to follow him to an alley because the parking lot was too exposed. Id. Instead, the agent asked Mr. Rodriguez Parra to quickly show him the methamphetamine before they continued with the transaction. Id. Mr. Rodriguez Parra did, but it was evidently only one pound. Id.; see also Dkt. 109 at 2. The agent asked Mr. Rodriguez Parra where the other three pounds were, to which Mr. Rodriguez Parra responded that it was just a sample (and it was all Mr. Gonzales Orduño told him to bring). PSR ¶ 20.

As a result, the agent called Mr. Gonzales Orduño about the other three pounds of methamphetamine. PSR ¶ 21. Mr. Gonzales Orduño said it was risky to take all four pounds out and he assured the agent that he should be trusted. Id. Mr. Gonzales Orduño then instructed the agent to follow Mr. Rodriguez Parra to the trailer. Id. Upon completion of the call, the agent asked Mr. Rodriguez Parra where the trailer was located. PSR ¶ 22. Mr. Rodriguez Parra told him that it was on Coors Boulevard. Id. The agent feigned unfamiliarity with Albuquerque and asked Mr. Rodriguez Parra to give him a reference point. Id. Mr. Rodriguez Parra described the intersection of Coors and Rio Bravo Boulevards, where there was also a Walmart store. Id. The agent then told Mr. Rodriguez Parra that he needed to pick up his girlfriend who had the money, and that he would then drive to the Walmart and call Mr. Gonzales Orduño from there. Id. Mr. Rodriguez Parra agreed and departed the Home Depot parking lot. Id.

At approximately 1:25 p.m., the agent arrived at the Walmart parking lot. PSR ¶ 23. He placed a call to Mr. Gonzales Orduño, told him his location, and asked him to meet him there. Id. The agent told Mr. Gonzales Orduño that he needed to bring the methamphetamine to the Walmart. Id. Mr. Gonzales Orduño again assured the agent there was nothing to worry about. Id. Mr. Gonzales Orduño relayed that he was going to send the muchachos (plural) over to Walmart and that they would be driving the same black and grey truck. Id.

Around 1:45 p.m., the agent observed the truck enter the Walmart parking lot. PSR ¶ 24. Mr. Rodriguez Parra was driving. Id. There was, this time, also a passenger in the truck, later identified as Mr. Reyes Filiciano—the subject of this order but hitherto not present in the sequence of events. Id. Upon reaching the agent's vehicle, the men in the truck motioned to the agent to follow them. Id. The agent declined and told them to park next to his vehicle. Id. Mr. Rodriguez Parra did so. Id. The agent asked both individuals where the methamphetamine was, and Mr. Rodriguez Parra indicated that it was back at the trailer. Id. The agent then told Mr. Rodriguez Parra that he was not going to the trailer until he saw all four pounds. Id. Both truck occupants reportedly sighed, rolled their eyes, and looked at each other. Id. Mr. Rodriguez Parra then told the agent to call Mr. Gonzales Orduño and ask him what he wanted to do. Id.

The agent telephoned Mr. Gonzales Orduño and...