United States District Court, E.D. California
TENTATIVE RULING RE DEFENDANT'S FORMAL OBJECTIONS TO PRESENTENCE REPORT
GARLAND E. BURRELL, Jr., Senior District Judge.
Defendant objects to application of a two-level sentencing enhancement imposed by Probation under Sentencing Guideline § 2D1.1(b)(1), for possession of a dangerous weapon. (Def.'s Formal Objections to Presentence Investigation Report ("Def.'s Objs."), ECF No. 285.) Probation recommends this enhancement be applied based upon the discovery of a loaded.38-caliber pistol during the July 26, 2011 DEA raid of the Mendocino garden, (Presentence Investigation Report ("PSR") && 19-20, 44), which is one of the two marijuana grows for which Defendant admitted responsibility in the factual basis to his plea agreement. (Def.'s Plea Agreement A-1, ECF No. 202.)
Although the Court raised the issue of whether this objection was timely, based upon the Stipulation and Order to Continue Sentencing filed January 6, 2014, (ECF No. 257), the objection is considered timely.
Defendant opposes a two level increase for the referenced firearm, arguing:
Defendant was unaware of a gun being present at that location. In addition, arguably, it is probable that the person that was seen in the area where the gardens were located was not a co-conspirator. There is no evidence, other than his presence, to indicate the person seen near where the gun was found was a co-conspirator. Absent evidence of the unknown person's involvement, the court should not make the defendant accountable for this unknown person's possession of a firearm.
(Def.'s Objs. 2:12-19.)
The government does not specifically address Defendant's objection in its Sentencing Memorandum, however, the government indicates "it does not have any objection to the factual content or sentencing guideline calculations contained within the PSR" and recommends the Court adopt the "guideline calculations of the PSR." (Gov't Sentencing Mem. 1:26-2:2, ECF No. 298.)
U.S.S.G. § 2D1.1(b)(1) prescribes: "If a dangerous weapon (including a firearm) was possessed, increase [the base offense level] by 2 levels." This "two-level enhancement for possession of a firearm in a drug offense should be applied if [a] weapon was present, unless it is clearly improbable that the weapon was connected with the offense.'" United States v. Williams, 434 F.Appx. 585, 587 (9th Cir. 2011) (quoting U.S.S.G. § 2D1.1 cmt. n.3).
Further, under the Sentencing Guidelines, a defendant may be sentenced not only on the basis of his own conduct, but "in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), " a defendant may be sentenced based on "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B).
As part of his plea agreement, Defendant agreed that the following facts are accurate:
In 2011, [Defendant] operated a drug trafficking organization ("DTO").... His DTO was responsible for at least two marijuana grows in 2011: the "Mendocino garden, " just off Forest Service Road in the Mendocino National Forest in Tehama County, and the "Lakehead garden", adjacent to co-defendant DAVID MARTINELLI's residence in the city of Lakehead, in the Shasta National Forest in Shasta County.
On July 26, 2011, law enforcement raided the Mendocino garden, where they found a total of 8, 437 marijuana plants. They found a well worn trail leading from the U.S. Forest Service Road M4 into the grow. In the garden, there was a sleeping area with five sleeping bags. In the separate kitchen area, agents found: food items..., four unopened Coleman propane bottles...; and processed marijuana.
[Defendant] admits that he knowingly and intentionally entered into an agreement with members of the DTO and REEVES, MARTINELLI, and others to ...