United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matters before the Court are: 1) Defendant's objections to Presentence Report (ECF No. 2071) and 2) United States' motion for an order finding Defendant materially breached the plea agreement (ECF No. 2118).
Defendant Telle Kreschmer entered pleas of guilty to Count 1 and Count 2 of a Second Superseding Indictment charging in Count 1 conspiracy to conduct enterprise affairs through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d) and in Count 2 conspiracy to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 846.
Defendant admitted in the Plea Agreement to participation in the affairs of the racketeering conspiracy and admitted that she was aware that the racketeering activities included commission of murder, and conspiracy to murder, kidnaping, robbery, and importation of controlled substances and other crimes. In addition, Defendant admitted to the following fact:
On or about December 21, 2009, defendant Telle Kreschmer observed Mario Escamilla, Raul Moreno and other individuals store approximately 176 pounds of marijuana, 1 pound of methamphetamine, 5 to 6 grams of cocaine, an AK-47 assault rifle, a shotgun and a.38 caliber handgun at an apartment occupied by defendant Telle Kreschmer and codefendant Mikael Daniel Blaser.
(ECF No. 1324 at 8). Defendant further admitted that she smuggled methamphetamine on February 3, 2010; February 10, 2010; and February 11, 2010.
The Probation Office prepared a Presentence Report which stated in relevant part: "In Overt Acts 21 and 107 [of the Second Superseding Indictment] KRESCHMER was in possession of an AK-47 assault rifle, shotgun, and/or a.38 caliber-pistol while in possession of drugs for distribution. Therefore, a two-level adjustment applies pursuant to USSG § 2D1.1(b)(1)." (ECF 1726 at 20). The Presentence Report further stated: "As KRESCHMER possessed a firearm during the above outlined overt acts, she is ineligible for safety valve' relief pursuant to USSG § 5C1.2(a)(2). Accordingly, she is also ineligible for the two-level reduction under USSG § 2D1.1(b)(16)." Id.
Defendant filed an objection to the Presentence Report. (ECF No. 2071). Defendant did not object to the increase of two levels pursuant to UNITED STATES SENTENCING GUIDELINES ("U.S.S.G.") § 2D1.1(b)(1) on the grounds that she "possessed...a dangerous weapon (including a firearm)." U.S.S.G. § 2D1.1(b)(1). Defendant did object to the conclusion in the Presentence Report that she is ineligible for "safety valve" relief pursuant to U.S.S.G. § 5C1.2(a)(2) on the grounds that she "possessed a firearm during the above outlined overt acts." (ECF No. 1726 at 20).
While Ms. Kreschmer agrees that her observation of guns being stored by codefendants somewhere in the apartment she shared with Codefendant Blaser meets the requirement under §2D1.1(b)(1)(a) that she "possessed" a firearm, she disagrees that as a result of this observation she also "possessed a firearm" in "connection with the offense" under § 5C1.2(a)(2).
(ECF No. 2071 at 5). Defendant contends that she agreed to the gun enhancement because her codefendants possessed guns in a manner which would trigger relevant conduct under U.S.S.G. §2D1.1(b)(1). Defendant further asserts that the relevant conduct of codefendants cannot be imputed to a defendant under U.S.S.G. §1B1.3(a)(1)(B) to defeat safety valve, that is, possession of a gun by a codefendant cannot be used, in and of itself, to deny safety valve. Defendant asserts that she has demonstrated by a preponderance of the evidence that she was not personally connected to the kinds of illicit activities which would support a finding that she exercised dominion and control over the weapons in this case. Defendant asserts that she crossed the border with drugs concealed in her body, and that she was a low level courier who took orders from her abusive boyfriend and that she is eligible for relief under safety valve.
The Government contends that Defendant is not eligible for safety valve relief because the conduct that supports the enhancement under U.S.S.G. § 2D1.1(b)(1) is the same conduct that defeats the Defendant's request for safety valve relief. The Government asserts that the Defendant has not satisfied her burden to show that she did not possess firearms in connection with the offense. The Government contends that it is undisputed that "firearms were possessed in connection with the drug trafficking conspiracy for the purposes of § 2D1.1(b)(1)'s 2-level enhancement." (ECF No. 2088 at 7). The Government contends that Defendant constructively possessed the firearms because she resided where the guns were stored, knew of their presence, and knew of their purpose in drug trafficking. The Government asserts that Defendant's "residency, knowledge of the firearms, and understanding about the purpose of the weapons, coupled with the absence of any innocent explanation, shows that she possessed the firearms in connection with her drug trafficking activity." (ECF No. 2088 at 11).
On March 4, 2014, the Court held an evidentiary hearing. Defendant Kreschmer testified that she lived in an apartment with codefendant Blaser and her young children for approximately a year, that she observed Blaser with a handgun inside the apartment, and that she knew that Blaser stored drugs and guns in the apartment. Defendant Kreschmer testified that on December 21, 2009 she saw Blaser and others bring a suit bag and present bags into the apartment and believed that the bags contained contraband, that she learned that the bags were stored in the bedroom closet, and that Blaser moved her items from the closet and did not allow her access to the closet. Defendant Kreschmer testified that she and her son were scared of Blaser and that Blaser was abusive. Defendant Kreschmer ...