MEMORANDUM AND ORDER RE: CALCULATION OF SENTENCING GUIDELINES
After a coordinated investigation with federal and state law enforcement, the government indicted over twenty-five defendants allegedly involved with a large drug trafficking conspiracy operating under the Nuestra Familia Prison Gang ("Nuestra Familia" or "NF"). Two jury trials have been held, which resulted in guilty verdicts for six of the defendants, and fourteen of the defendants have pled guilty, including defendants Edward Fuentes, Benjamin Santos Castro, and Marco Anthony Gomez, Jr. This Order determines the total offense level and criminal history category under the United States Sentencing Commission Guidelines Manual ("Guidelines") for Fuentes, Castro, and Gomez. See generally United States v. Johnson, 581 F.3d 994, 1001 n.4 (9th Cir. 2009) ("Although merely advisory after United States v. Booker, 543 U.S. 220 (2005), sentencing courts must consult the Guidelines as a 'starting point' for the sentencing determination and the advisory 'range must be calculated correctly.'" (quoting United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008))).
Fuentes, Castro, and Gomez each pled guilty without a plea agreement to three counts from the Second Superseding Indictment, which were for violations of 21 U.S.C. §§ 841(a)(1) and 846 based on a conspiracy, beginning no later than April 1, 2004 and continuing through June 27, 2004, to distribute and possess with intent to distribute at least fifty grams of methamphetamine and at least five grams of cocaine and § 843(b) based on the illegal use of a communication facility for the purpose of drug trafficking. All three defendants*fn1 objected to the recommended offense levels in their respective Advisory Guideline Presentence Investigation Report ("PSR"). To resolve defendants' objections, the court held a three-day evidentiary hearing to determine the quantity of drugs attributable to each defendant and assess their roles in the offenses.
After conducting the evidentiary hearing, the court received and considered sentencing memoranda from all parties, which included defendants' numerous objections to the PSRs. On March 26, 2012, the court heard extensive oral arguments relative to the calculations of the Guidelines range for each defendant. The court thereupon took the issue of the Guidelines calculations under submission.
The court's findings and discussion in this Order are limited to calculating the total offense level and criminal history category for each defendant and ruling on their objections to their respective PSRs. In making its findings when there was a dispute, the court only considered the evidence presented at the evidentiary hearing at which the defendants were present and had the opportunity to cross-examine the witnesses. The court did not consider or rely on any evidence from the prior jury trials or statements in the PSR that were not supported by the evidence at the hearing.
I. Credibility of Witnesses at Evidentiary Hearing Defendant Mario Diaz, Jr., was a high-ranking Nuestra
Familia member and a significant leader in the drug trafficking operation underlying the indictments in this case. At the sentencing hearing and jury trials, Diaz testified for the government. The court has thus had the opportunity to observe his demeanor over the course of the hearing and two trials and finds the entirety of his testimony credible. Given the duration of the conspiracy and the detail to which Diaz has described the numerous events that occurred, the court finds it would be nearly impossible for him to fabricate his testimony and remain as consistent as he has throughout the lengthy and repeated direct and cross examinations. While Diaz's criminal conduct would certainly belie any suggestion that he is of good character, it appears that he has made a conscious decision that it is in his own best interest to tell the truth. Having gone as far as he has in betraying the NF, Diaz has nothing to gain by being anything but truthful. While he is obviously hoping he will receive witness protection, he does not appear to be worried about whether his testimony is pleasing the government or court. The court has also never had the impression that Diaz's testimony is influenced by any bias against his co-defendants.
Jorge Sandoval, who is a defendant in a criminal case that has been related to the one at hand, also testified for the government at the evidentiary hearing. Although Sandoval did not recall details of events as well as Diaz, the court also found his testimony credible. As with Diaz, Sandoval appears to have decided it is in his best interest to testify for the government and has nothing to gain by being dishonest. His testimony was consistent with Diaz's testimony and, aside from his convictions, he was not sufficiently impeached to cast doubt on his veracity.
II. Base Offense Level Calculation Based on Drug Quantity
"The base offense level under the Guidelines for a defendant convicted of drug trafficking depends on the quantity of drugs involved in the offense." United States v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008) (citing U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(a)(3)). To determine the quantity of drugs, the Guidelines provide that the court can look to all relevant conduct, which, "in the case of a jointly undertaken criminal activity," includes "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3. Thus, a "defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." United States v. Palafox-Mazon, 198 F.3d 1182, 1186 (9th Cir. 2000) (quoting U.S.S.G. § 1B1.3 cmt. n.2) (internal quotation marks omitted); accord Dallman, 533 F.3d at 760.
"Before a court can hold a defendant accountable at sentencing for the 'relevant conduct' of others, it must 'first determine the scope of the criminal activity the particular defendant agreed to jointly undertake.'" Palafox-Mazon, 198 F.3d at 1186 (quoting U.S.S.G. § 1B1.3 cmt. n.2). The Guidelines define "jointly undertaken criminal activity" as "a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy." U.S.S.G. § 1B1.3 cmt. n.2. The Guidelines recognize that the scope of a defendant's jointly undertaken criminal activity "is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant." Id. The Ninth Circuit has explained that the "court may not rely simply upon the total amount involved in the drug conspiracy, but must undertake an individualized evaluation of the amount for which [the defendant] is accountable under the Guidelines." United States v. Newland, 116 F.3d 400, 405 (9th Cir. 1997).
"The scope of the jointly undertaken criminal activity 'may depend on whether, in the particular circumstances, the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or as a number of separate criminal activities.'" Dallman, 533 F.3d at 760 (quoting U.S.S.G. § 1B1.3 cmt. n.2(c)(8)); see also U.S.S.G. § 1B1.3 cmt. n.2 ("In determining the scope of the criminal activity that the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant's agreement), the court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.").
"After determining the scope of the criminal activity to which a defendant agreed, the court then determines whether the conduct of others was 'in furtherance of the jointly undertaken criminal activity' and 'reasonably foreseeable in connection with that criminal activity.'" Palafox-Mazon, 198 F.3d at 1186 (quoting U.S.S.G. § 1B1.3 cmt. n.2). Generally, "[a] defendant's relevant conduct does not include the conduct of members of a conspiracy prior to the defendant's joining the conspiracy, even if the defendant knows of that conduct (e.g., in the case of a defendant who joins an ongoing drug distribution conspiracy knowing that it had been selling two kilograms of cocaine per week, the cocaine sold prior to the defendant's joining the conspiracy is not included as relevant conduct in determining the defendant's offense level)." U.S.S.G. § 1B1.3 cmt. 2.
"Although the guidelines clearly authorize the district court to approximate drug quantities, as with all factors which increase a defendant's offense level, the government is required to prove the approximate quantity by a preponderance of the evidence." United States v. August, 86 F.3d 151, 154 (9th Cir. 1996). "The district court must 'conclude that the defendant is more likely than not actually responsible for a quantity greater than or equal to the quantity for which the defendant is being held responsible.'" Id. at 154 (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)). "Furthermore, the information which supports an approximation must possess 'sufficient indicia of reliability to support its probable accuracy.'" Id. (quoting U.S.S.G. § 6A1.3(a)). "Additionally, since a defendant's sentence depends in large part upon the amount of drugs attributable to his conduct, and approximation is by definition imprecise, the district court must err on the side of caution in choosing between two equally plausible estimates." Id.; accord Walton, 908 F.2d at 1302 ("[W]hen choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution.").
A. Scope of Jointly Undertaken Criminal Activity
The drug trafficking conspiracy giving rise to the indictments in this case spanned over numerous cities in Northern California and involved substantial quantities of drugs that would merit application of the highest base offense level for drug quantity (38) if the court attributed all of the drugs in the conspiracy to defendants. Diaz's testimony at the evidentiary hearing revealed, however, that the scope of the criminal activity that Fuentes, Castro, and Gomez agreed to jointly undertake within the trafficking operation did not extend to all of the drugs in the conspiracy. The conspiracy involved multiple levels of command, with Diaz and defendant Larry Sixto Amaro in higher positions, and coconspirators such as Fuentes, Castro, and Gomez operating in a particular region. The individuals operating in each region were referred to as a regiment.
The regiments, such as the San Francisco regiment and Merced regiment, functioned separately from each other and only assumed responsbility for the drugs in their region. Although the regiments may have received better pricing based on the quantity of drugs Diaz purchased in order to supply drugs to all of the regiments, Diaz testified that he set the price of drugs separately for each regiment according to the market in the regiment's territory and did not disclose the price one regiment paid to another regiment. Additionally, while the leader of a regiment, known within the organization as a regiment commander, was responsible to cover losses incurred by a member of his regiment (such as the loss of drugs due to an arrest of a regiment member and seizure of his drugs), the regiment commander was not responsible for and likely not aware of losses incurred by another regiment.
The structure of the drug trafficking organization and the independence of and lack of coordination between the various regiments lead the court to conclude that the drug operations of each regiment were separate criminal activities and that Fuentes, Castro, and Gomez agreed only to jointly undertake the criminal activity conducted by their regiment. As discussed in more detail below, at varying points during the conspiracy, Fuentes was the regiment commander for the Merced regiment and Castro and Gomez were regiment commanders for the San Francisco regiment. Accordingly, in determining the quantity of drugs for which each defendant is accountable, the court will consider only the drugs each defendant was directly involved with and the reasonably foreseeable quantities purchased or sold within the area controlled by each defendant's regiment during the time the defendant was operating in the regiment.
B. Base Offense Level for Fuentes In the PSR, the probation officer concludes that the evidence is sufficient to support a base offense level of 38 for Fuentes, but recognizes that "the Court has not yet made a finding as to the amount(s) of drugs attributable to the defendant" and thus the offense level "is subject to change." Fuentes objects to a base offense level of 38 and contends that the appropriate base offense level is 32.
Diaz testified that he first met Fuentes in 2006 when he was a Norteno and, at that time, Fuentes had instructions from an NF member housed in Pelican Bay to establish a regiment in Merced. (Dec. 6, 2011 Tr. ("Dec. 6 Tr.") 45:9-13, 45:23-46:17, 47:16-22.) Diaz explained to Fuentes that anything happening on the streets was under the control of the NF generals in federal custody, which, as the authority ran down the control chain, included Diaz and Amaro. (Id. at 49:8-50:5.) After this discussion, Fuentes "fell in suit," agreeing to be under the authority of the NF generals in federal custody, and thus Diaz. (Id. at 50:18-23.) Diaz determined that Fuentes was the best person to start a regiment in Merced and gave him instructions to "build a regiment and start flowing in with drugs, start bringing in drugs to [Merced]." (Id. at 51:2-10, 52:2-3.) Fuentes was willing to take that responsibility, and Fuentes and Diaz started trafficking drugs together, with Fuentes serving as the regiment commander for Merced. (Id. at 52:9-24.)
At the evidentiary hearing, Diaz estimated that the total amount of methamphetamine he supplied to Merced directly through Fuentes was "more than three pounds." (Dec. 7, 2011 Tr. ("Dec. 7 Tr.") 192:23-193:4.) Intercepted calls between Diaz and Fuentes corroborate this testimony. For example, in an intercepted call on March 28, 2007, Fuentes asked whether a delivery of drugs had come in and Diaz and Fuentes discussed the pricing for pounds of methamphetamine. (Dec. 6 Tr. 67:21-68:9; Gov't Evidentiary Hr'g Ex. ("Ex.") 6 at 4.) During the call, Fuentes also referenced a $19,000 debt he owed to Diaz for purchases of drugs he had made from Diaz on credit. (Dec. 6 Tr. 68:20-22; Ex. 6 at 6.) Diaz also testified that the majority of the drugs he provided Fuentes was methamphetamine, but recalled giving him nine ounces (a quarter of a kilogram) of cocaine on one occasion. (Dec. 6 Tr. 68:21-69:1.) The court will therefore attribute three pounds of methamphetamine and nine ounces of cocaine to Fuentes based on this uncontroverted evidence.
As regiment commander, Fuentes also instructed individuals under him, including Nicolas Saldana, to pick up drugs from Diaz on his behalf. (Id. at 54:12-22.) Diaz testified that Saldana "picked up one-pound quantities of crystal methamphetamine on at least four occasions, different occasions" and that those four pounds were separate from the three pounds Diaz provided directly to Fuentes.*fn2 (Dec. 7 Tr. 234:25-235:17.) Not only are the drugs Saldana picked up from Diaz attributable to Fuentes based on Diaz's testimony that Saldana picked them up on behalf of Fuentes for the Merced regiment, Diaz also testified that when Saldana was arrested while he was in possession of drugs he had picked up from Diaz, Fuentes assumed the debt to Diaz for the confiscated drugs. (Dec. 6 Tr. 55:6-23.)
Fuentes argues that the court should not rely on Diaz's testimony about Saldana picking up four pounds of methamphetamine from Diaz on behalf of Fuentes. First, Fuentes emphasizes that Diaz had worked with Saldana before Fuentes started working with Diaz, (see Dec. 7 Tr. 187:2-4, 242:18-20), thus Saldana could have picked up some or all of the four pounds from Diaz before he worked for Fuentes. The court finds it unlikely that Diaz included any quantities given to Saldana before Saldana was working for Fuentes because the questions clearly referred only to drugs that Saldana picked up on behalf of Fuentes. (See id. at 235:13-17.)
Second, Fuentes argues that notes taken by an investigator during a debriefing with Diaz on August 1, 2007 discredit Diaz's testimony because the notes indicate only that Diaz stated that the total amount of methamphetamine supplied to Merced through Fuentes was three pounds. The omission of any reference to the four pounds Saldana picked up in the investigator's notes does not discredit Diaz's testimony, especially because the court has generally found live testimony or a transcript of an interview to be more accurate than an investigator's notes that may contain errors or omissions and inevitably lack the context of statements. Additionally, Diaz told investigators about the four pounds provided to Saldana in another FBI debriefing. (See id. at 234:22-235:4.) Overall, the weight of the evidence persuades the court that Diaz's estimation about the four pounds of methamphetamine delivered to Saldana was limited to the time Saldana was working for Fuentes and was in addition to the three pounds he testified were distributed to Merced through Fuentes. The court will therefore include that four pounds of methamphetamine in calculating Fuentes's base offense level.
The government also argues that intercepted calls between Fuentes and Diaz show that Fuentes and Diaz reached additional agreements for the sale of drugs that should be included in calculating Fuentes's base offense level. Under the Guidelines, an agreement to sell a specific quantity of drugs can be considered in calculating a defendant's base offense level. See U.S.S.G. § 2D1.1 cmt. n.12 ("In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense."). In an intercepted call between Diaz and Fuentes on May 22, 2007, Fuentes told Diaz about the possibility of obtaining a pound of methamphetamine from someone in San Jose for $9,500 per pound and the possibility of exchanging a kilogram of their cocaine with that dealer. (See Dec. 6 Tr. 84:7-56:4; Ex. 11.) After recounting his conversation with the dealer in San Jose and discussing with Diaz the possibility of such a sale, the discussion about the potential sale ended with Fuentes saying, "I told Woody to see what's up, maybe we could come up on something." (Ex. 11 at 4.) Neither the intercepted call nor Diaz's testimony at the hearing prove that Fuentes or Diaz reached an agreement with the dealer in San Jose to conduct an exchange or sale of drugs. Discussions about a possible source of methamphetamine and possible purchaser for cocaine do not result in an "agreed-upon quantity of [a] controlled substance" sufficient to use in calculating Fuentes's base offense level.
Similarly, in a second intercepted call about two hours later that day, Fuentes told Diaz that he wanted to buy methamphetamine, but nothing in the conversation or Diaz's testimony indicates that they reached an agreement. At the time of the call, Diaz did not have methamphetamine to sell to Fuentes and was waiting to receive about three pounds. (Dec. 6 Tr. 89:10-15.) For example, Diaz told Fuentes that Fuentes's "guys didn't like" the methamphetamine Diaz had access to at the time and the other kind he could buy was too expensive. (Ex. 12.) Again, they discussed the possibility of purchasing them from the San Jose dealer. (Id.) As the call ended, Fuentes said, "Oh man, let me call Woody and see what, what we could do with Samuel, bro." (Id.; see also Dec. 6 Tr. 86:4-11 (Samuel is an NF carnal in San Jose).) From the evidence, the court concludes that it was not likely that Fuentes and Diaz reached an agreement for the purchase of methamphetamine in that phone conversation and, if they subsequently reached an agreement, the amount was likely included in Diaz's estimate of the total quantity of methamphetamine he sold to Fuentes.
Lastly, the government argues that Fuentes is responsible for the multiple pounds of methamphetamine Diaz testified he purchased in the last two weeks of May 2007 and the ten pounds of methamphetamine in his possession when he was arrested on May 26, 2007. Diaz was arrested only five days after Fuentes's May 22 conversation with him in which Fuentes and Diaz did not come to an agreement about Fuentes purchasing methamphetamine from Diaz. Diaz did not testify that he was intending to sell any of that methamphetamine to Fuentes, and it is plausible that the ten pounds in Diaz's possession was the cheaper methamphetamine that Diaz had indicated that Fuentes's "guys" did not like. There is therefore insufficient evidence to establish that the drugs in Diaz's possession at the time of his arrest, or any drugs he purchased just prior to his arrest, were within the scope of the criminal activity that Fuentes undertook in selling methamphetamine in the Merced regiment.
Although the totality of the evidence leaves the court convinced that Fuentes was involved with more drugs than the specific quantities established through the evidence, the court must limit itself to the most conservative estimation based on the evidence. Accordingly, the court finds it more likely than not that Fuentes was directly involved with or agreed to jointly undertake criminal activity involving at least seven pounds of methamphetamine and nine ounces of cocaine, providing for a base offense level of 34.*fn3
C. Base Offense Level for Castro
The PSR for Castro explains that "it appears he was aware of all of the drugs being distributed by the DTO, and all of the criminal conduct of the DTO will be used to determine the offense level." The PSR thus recommends a base offense level of 38. Castro objects to the use of the highest level, arguing that the appropriate base offense level is 34.
Castro is a Norteno, and Diaz testified that he personally delivered methamphetamine to Castro on at least six occasions in 2006 and 2007. (Dec. 6 Tr. 99:6-17.) He testified that each delivery was "always" more than one pound of methamphetamine and explained, "in fact, the majority of the time it was over a pound. I mean, it was like -- sometimes in the beginning it was like five pounds, four pounds." (Id. at 99:21-24.) From this testimony, the government and Castro reach different estimates about the quantity of methamphetamine Diaz delivered to Castro. Castro contends that Diaz's testimony supports a finding of only twelve pounds, reasoning that two of the deliveries were four pounds each and the remaining four deliveries were one pound each. The government, on the other hand, argues that Diaz's testimony supports a finding of twenty to twenty-five pounds, reasoning that at least four of the sales were four or five pounds each.
"[W]hen choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution." Walton, 908 F.2d at 1302. So long as Castro's estimate is plausible in light of Diaz's testimony, the court must adopt his lower calculation. The difference in Castro's and the government's calculations stems from the following testimony:
Q: What were the -- do you recall, like, a number of pounds from during these six or so occasions? More than one pound, less than a pound?
A: No, it was more. It was always -- in fact, the majority of the time it was over a pound. I mean, it was like -- sometimes in the beginning it was like five pounds, four pounds.
(Dec. 6 Tr. 99:18-24.) Castro's calculation of the first two sales at four pounds each is plausible because Diaz testified that "in the beginning it was like five pounds, four pounds." Although the "beginning" sales may have also been at five pounds, it is unclear from Diaz's testimony whether he was estimating that one or more sales were for five pounds or he was uncertain whether the "beginning" sales were for four or five pounds. The "beginning" sales could also include more than the first two sales and, according to the government, the majority of the sales were at the level of the "beginning" sales. While such interpretations are plausible, the court will err on the side of caution and adopt the four pound estimate only for the first two "beginning" sales as it is the most conservative of the possible estimations.
However, Castro's estimate that the remaining sales were for only one pound each is not plausible in light of Diaz's testimony that a "majority" of the sales (at least four of the six sales) were "over a pound." The next two sales comprising of the majority of the sales must have thus been at a quantity that exceeded one pound. The court's impression from Diaz's testimony is that he primarily sold methamphetamine in pound increments and did not cut a packaged pound into lower quantities. The court therefore finds it most likely that a sale for "over a pound" would have been at least two pounds. Adopting the most conservative calculation that is plausible in light of Diaz's testimony, the court finds that at least two of the six sales were for two pounds because, taken with the first two sales for four pounds, this would result in a majority of the sales being over one pound. With the remaining two sales, because Diaz testified that the six sales were "always" for a pound, the only plausible estimate is that they were for at least one pound, and thus the court will adopt the most conservative estimate that the remaining two sales were for one pound each.*fn4 Accordingly, the most conservative calculation based on Diaz's uncontroverted testimony is that he personally delivered fourteen pounds to Castro and the court will therefore use this quantity in calculating Castro's base offense level.*fn5
In an intercepted call with Diaz on April 5, 2007, Castro also discussed a pound of marijuana that he had received and given to another individual to sell. The court will therefore attribute that pound of ...