RULING ON OBJECTIONS TO PRESENTENCE REPORT
The defendant pleaded guilty to a single count indictment that charged him with conspiracy to distribute more than 500 grams of methamphetamine. As set out in the plea agreement, the government agreed to recommend the maximum adjustment for acceptance of responsibility, to not oppose a sentence at the low end of the applicable guideline range, and to not object to the safety valve's application assuming he met all the criteria of U.S.S.G. § 5C1.2. The Presentence Report ("PSR") recommends a base offense level of 36 with a two-level firearm enhancement for a total offense level of 38. Using a criminal history category of one, the applicable sentencing guideline range is 235 to 293 months.
DEFENDANT'S OBJECTION NO. 1: The defendant objects to the lack of any credible evidence that would support a relevant conduct finding of more than five kilograms of methamphetamine. The PSR bases this drug quantity determination exclusively on the statements of co-defendant Michael W. Pritchett made in May of 2002 regarding their joint venture of distributing methamphetamine over the last year or more. The government has submitted no response.
Ruling: Under § 2D1.1, "[t]he Government has the burden of proving the quantity of drugs by a preponderance of the evidence," United States v. Gigley, 213 F.3d 509, 518 (10th Cir. 2000), and the "evidence relied upon must possess a minimum indicia of reliability." United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998). When the co-defendant Michael Pritchett was sentenced in January of 2003, the court relied on a PSR that attributed him with 762.2 grams of methamphetamine. In the July of 2002 plea agreement entered in Pritchett's case, the AUSA agreed "that the available evidence would establish that the total amount of methamphetamine mixture attributable to the defendant for purposes of relevant conduct is at least 500 grams but less than 1.5 kilograms, corresponding to base offense level 32." By these terms of Pritchett's plea agreement, the AUSA necessarily represented to the court that notwithstanding Pritchett's statements made in May of 2002 of other methamphetamine distribution activities with the co-defendant Carrillo, the available evidence on which the court should rely would only establish holding Pritchett accountable for between 500 grams and 1.5 kilograms of methamphetamine. The court believes the AUSA's representation regarding reliable evidence available in Pritchett's case applies with equal force in co-defendant Carrillo's case absent some explanation for rationally distinguishing the two cases. If no justification is presented, the court intends to hold the defendant Carrillo accountable for the same 762.2 grams of methamphetamine attributed to Pritchett which was based on the methamphetamine found on the person of Pritchett and in his residence on April 11, 2002. The court conditionally sustains the defendant's objection and will use a base offense level of 32.
DEFENDANT'S OBJECTION NO. 2: The defendant takes issue with the two-point firearm enhancement arguing that it is clearly improbable that the pistol found under the bedroom mattress in his apartment is connected to the offense in question. The government has submitted no response.
Ruling: An enhancement for weapon possession "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, comment., (n. 3) (1997). In evaluating whether the enhancement should be applied, the sentencing court considers not only the offense of conviction but also looks at all acts "'that were part of the same course of conduct or common scheme or plan as the offense of conviction.'" United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993) (quoting U.S.S.G. § 1B1.3(a)(2)).
To sustain an enhancement under § 2D1.1(b)(1), the government must prove by a preponderance of the evidence that the gun "'was proximate to the drug offense.'" United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998) (quoting United States v. Lang, 81 F.3d 955, 964 (10th Cir. 1996)), cert. denied, 525 U.S. 1092 (1999). To make such proof, the government must show "'that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.'" Id. (quoting United States v. Roederer, 11 F.3d at 982). Such a nexus "may be established by showing that the weapon was located nearby the general location 'where drugs or drug paraphernalia are stored or where part of the transaction occurred.'" Id. (quoting Roederer, 11 F.3d at 983). Once the government proves such possession, the burden shifts to the defendant to show that "'it is clearly improbable that the weapon was related to the offense.'" United States v. Flores, 149 F.3d at 1280 (quoting United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir.), cert. denied, 516 U.S. 844 (1995)).
By limiting his objection to whether it is clearly improbable the weapon was related to the offense, the defendant is not only conceding the truthfulness of the facts appearing in the PSR but he is also recognizing that the government has carried its burden of proving possession. Thus, the defendant's objection simply goes to the weight of the evidence set out in the PSR and in particular, whether the evidence sustains his position as to the relationship between the gun and offense.
As set out in the PSR, the facts are that in their search of Carrillo's residence, officers found drug paraphernalia and also found a .45 caliber Highpoint pistol under the mattress in Carrillo's bedroom. The co-defendant Michael Pritchett told officers that during his joint venture with Carrillo distributing methamphetamine he knew Carrillo carried either a Derringer handgun or a .45 caliber Highpoint pistol. Pritchett's girlfriend, Angel Morgan, also told officers that it was Carrillo's methamphetamine found at Pritchett's residence and that Carrillo had brought the methamphetamine over to Pritchett's place only because Carrillo thought the police were after him.
The court finds that the government has carried its burden of proving possession by a preponderance of evidence. Absent the defendant's offer of other evidence on this point, the court would find that it is not clearly improbable that the pistol found in the defendant's apartment was the very same pistol which Michael Pritchett described as being carried by the defendant during their drug trafficking activities. The court will overrule this objection subject to reconsideration should the defendant offer additional evidence on this issue.
DEFENDANT'S OBJECTION NO. 3: Asserting he meets all five conditions of the safety valve provision, the defendant contends the PSR wrongly denies him a two-point reduction under that provision. The government has submitted no response.
Ruling: Having overruled the defendant's objection to the firearm enhancement imposed as a result of his personal possession of a firearm in connection with the offense, the court finds that the defendant is unable to qualify for receipt of the safety valve provision. Carrying a firearm during the drug trafficking activities obviously disqualifies the defendant under U.S.S.G. § 5C1.2(a)(2). The defendant's objection is overruled.
DEFENDANT'S OBJECTION NO. 4: The defendant asks the court to grant him an acceptance of responsibility despite his failure to report to the probation office as required. The defendant offers that there are extenuating circumstances related to the birth of his second child which explain his erratic behavior and that he should not be denied the benefit of having accepted responsibility for the crime. The government has submitted no written response.
Ruling: As stated in application note 3 to U.S.S.G. § 3E1.1, the entry of a guilty plea prior to trial combined with truthfully admitting the conduct comprising the offense of conviction constitute significant evidence of the defendant's acceptance of responsibility. This does not mean that a defendant who truthfully admits his role in the charged offense is automatically entitled to receive the § 3E1.1 decrease. See U.S.S.G. § 3E1.1, comment. (n.3). Instead, such evidence "may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility." See U.S.S.G. § 3E1.1, comment. (n.3). The defendant bears the burden of demonstrating he is entitled to the decrease for acceptance of responsibility under § 3E1.1 of the sentencing guidelines. See United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995).
Ignoring court-imposed conditions and taking efforts to circumvent detection of criminal behavior do not indicate acceptance of responsibility. "[V]violation of an appearance bond is certainly evidence of failure to accept responsibility." United States v. Hawley, 93 F.3d 682, 689 (10th Cir. 1996). "True acceptance of responsibility for a crime includes acceptance of whatever justice society deems proper in response." United States v. Swanson, 253 F.3d 1220, 1225 (10th Cir.), cert. denied, 534 U.S. 1007 (2001). "[I]n deciding whether to grant a reduction for acceptance of responsibility pursuant to § 3E1.1, a sentencing court is entitled to consider whether a defendant has voluntarily withdrawn from criminal conduct, regardless of whether the conduct is similar or related to the criminal conduct for which a defendant was convicted." United States v. Prince, 204 F.3d 1021, 1023 -1024 (10th Cir.) (citations omitted), cert. denied, 529 U.S. 1121 (2000).
The defendant has not met his burden of showing he is entitled to an adjustment for acceptance of responsibility. The defendant does not object to the facts appearing in PSR concerning his failure to report for drug testing on three occasions, his submission of diluted samples for drug testing on two occasions, his change of residence without prior approval of the Probation Office, and his failure to report to the Probation Office since October 8, 2003, that has resulted in a warrant for his arrest. Such repeated and flagrant conduct is inconsistent with acceptance of responsibility. The seriousness and the number of the defendant's unlawful actions belie his asserted acceptance of responsibility. The defendant's entry of a guilty plea does not absolve him of accountability for ongoing drug use and for abiding with the express terms of his release. The defendant's objection is overruled.
DEFENDANT'S OBJECTION NO. 5: Pointing to his other objections and assuming a favorable ruling on them, the defendant argues the offense level calculations are erroneous.
Ruling: The court sustains this objection insofar as the court accounts for its ruling on the defendant's first objection to his base offense level. In summary, the defendant's base offense level is 32, plus a two-level increase for the firearm enhancement results in a total offense level of 34. The applicable sentencing guideline range is 151 to 188 months.
IT IS SO ORDERED.