Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00429-MSK
OAO 245B (Rev. 06/05) Judgment in a Criminal Case Sheet 1

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UNITED STATES DISTRICT COURT
District of COLORADO

UNITED STATES OF AMERICA
V.

JUDGMENT IN A CRIMINAL CASE

RAMON MARTINEZ a/k/a Eidi Burciaga-Orosco

Case Number: USM Number: Matthew C. Golla, AFPD
Defendant' Attorney s

04-cr-00429-MSK-01 26827-051

THE DEFENDANT: pleaded guilty to count(s) pleaded nolo contendere to count(s) which was accepted by the court. X was found guilty on count(s) after a plea of not guilty. two and three of the Superseding Indictment

The defendant is adjudicated guilty of these offenses: Title & Section 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. §2 Nature of Offense Conspiracy to Distribute and Possess with Intent to Distribute 500 Grams or More of Methamphetamine Distribution or Possession with Intent to Distribute 500 Grams or More of Methamphetamine and Aiding Offense Ended 09/29/04 Count Two

01/29/04

Three

The defendant is sentenced as provided in pages 2 through 10 of this judgment in accordance with the findings and conclusions made in open court, a transcript of which is attached hereto and incorporated herein by reference. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. X The defendant has been found not guilty on count(s) X Count(s) four of the Superseding Indictment X is one of the Superseding Indictment are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. May 1, 2006
Date of Imposition of Judgment

s/Marcia S. Krieger Signature of Judge

Marcia S. Krieger, U.S. District Judge
Name and Title of Judge

May 11, 2006
Date

Case 1:04-cr-00429-MSK
AO 245B (Rev. 06/05) Judgment in Criminal Case Sheet 2 -- Imprisonment

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 360 months on each of counts two and three, to be served concurrently.

The court makes the following recommendations to the Bureau of Prisons:

X

The defendant is remanded to the custody of the United States Marshal. The defendant shall surrender to the United States Marshal for this district: at a.m. p.m. on .

as notified by the United States Marshal. The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: before 2 p.m. on as notified by the United States Marshal. as notified by the Probation or Pretrial Services Office. .

RETURN
I have executed this judgment as follows:

Defendant delivered on at

to , with a certified copy of this judgment.

UNITED STATES MARSHAL

By
DEPUTY UNITED STATES MARSHAL

Case 1:04-cr-00429-MSK
AO 245B (Rev. 06/05) Judgment in a Criminal Case Sheet 3 -- Supervised Release

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of : five (5) years on each of counts two and three to run concurrently. The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court. The above drug testing condition is suspended, based on the court' determination that the defendant poses a low risk of s future substance abuse. (Check, if applicable.) X X The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.) The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.) The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.) The defendant shall participate in an approved program for domestic violence. (Check, if applicable.) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION
1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) the defendant shall not leave the judicial district without the permission of the court or probation officer; the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; the defendant shall support his or her dependents and meet other family responsibilities; the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant' criminal s record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant' compliance with such notification requirement. s

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The defendant shall provide access to any requested financial information.
(Rev. 06/05) Judgment in a Criminal Case Sheet 3C -- Supervised Release Judgment-- Page 4 of 10

AO 245B

DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

SPECIAL CONDITIONS OF SUPERVISION

1.

If the defendant is deported, he shall not thereafter re-enter the United States illegally. If the defendant re-enters the United States legally, he shall report to the nearest U.S. Probation Office within 72 hours of his return.

Case 1:04-cr-00429-MSK
AO 245B (Rev. 06/05) Judgment in a Criminal Case Sheet 5 -- Criminal Monetary Penalties

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Assessment TOTALS Fine Restitution

$ 200.00

$ 0.00

$ 0.00

The determination of restitution is deferred until after such determination.

. An Amended Judgment in a Criminal Case (AO 245C) will be

The defendant must make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid before the United States is paid. Name of Payee Total Loss* Restitution Ordered Priority or Percentage

TOTALS

$

0

$

0

Restitution amount ordered pursuant to plea agreement $ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g). The court determined that the defendant does not have the ability to pay interest and it is ordered that: the interest requirement is waived for the the interest requirement for the fine fine restitution.

restitution is modified as follows:

* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.

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AO 245B (Rev. 06/05) Judgment in a Criminal Case Sheet 6 -- Schedule of Payments

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

SCHEDULE OF PAYMENTS
Having assessed the defendant' ability to pay, payment of the total criminal monetary penalties are due as follows: s A Lump sum payment of $ not later than in accordance B C D due immediately, balance due , or E, or C,

C,

D,

F below; or D, or F below); or

X Payment to begin immediately (may be combined with

Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or Payment during the term of supervised release will commence within (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant' ability to pay at that time; or s Special instructions regarding the payment of criminal monetary penalties:

E F

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate.

The defendant shall pay the cost of prosecution. The defendant shall pay the following court cost(s): The defendant shall forfeit the defendant' interest in the following property to the United States: s

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.

AO 245B (Rev. 06/05) Criminal Judgment Attachment (Page 1) -- Statement of Reasons

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

STATEMENT OF REASONS
I COURT FINDINGS ON PRESENTENCE INVESTIGATION REPORT A B X The court adopts the presentence investigation report without change. The court adopts the presentence investigation report with the following changes.
(Check all that apply and specify court determination, findings, or comments, referencing paragraph numbers in the presentence report, if applicable.) (Use page 4 if necessary.) 1

X

Chapter Two of the U.S.S.G. Manual determinations by court (including changes to base offense level, or specific offense characteristics): Chapter Three of the U.S.S.G. Manual determinations by court (including changes to victim-related adjustments, role in the offense, obstruction of justice, multiple counts, or acceptance of responsibility):

2

X

The defendant was an organizer, leader, manager, or supervisor of a criminal activity that involved less than five (5) participants, pursuant to U.S.S.G. §3B1.1(c).
3 Chapter Four of the U.S.S.G. Manual determinations by court (including changes to criminal history category or scores, career offender, or criminal livelihood determinations):

4

X

Additional Comments or Findings (including comments or factual findings concerning certain information in the presentence report that the Federal Bureau of Prisons may rely on when it makes inmate classification, designation, or programming decisions): See transcript attached and incorporated herein.

C II

The record establishes no need for a presentence investigation report pursuant to Fed.R.Crim.P. 32.

COURT FINDING ON MANDATORY MINIMUM SENTENCE (Check all that apply.) A B X C
No count of conviction carries a mandatory minimum sentence. Mandatory minimum sentence imposed. One or more counts of conviction alleged in the indictment carry a mandatory minimum term of imprisonment, but the sentence imposed is below a mandatory minimum term because the court has determined that the mandatory minimum does not apply based on findings of fact in this case substantial assistance (18 U.S.C. § 3553(e)) the statutory safety valve (18 U.S.C. § 3553(f))

III

COURT DETERMINATION OF ADVISORY GUIDELINE RANGE (BEFORE DEPARTURES): Total Offense Level: 42 Criminal History Category: II Imprisonment Range: 360 to life months Supervised Release Term: to five years Fine Range: 25,000 to $ 8,000,000 X Fine waived or below the guideline range because of inability to pay.

AO 245B

(Rev. 06/05) Criminal Judgment Attachment (Page 2) -- Statement of Reasons

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

STATEMENT OF REASONS
IV ADVISORY GUIDELINE SENTENCING DETERMINATION (Check only one.) A B X
The sentence is within an advisory guideline range that is not greater than 24 months, and the court finds no reason to depart. The sentence is within an advisory guideline range that is greater than 24 months, and the specific sentence is imposed for the reason identified in the attached transcript.

C D V

The court departs from the advisory guideline range for reasons authorized by the sentencing guidelines manual. (Also complete Section V.) The court imposed a sentence outside the advisory sentencing guideline system. (Also complete Section VI.)

DEPARTURES AUTHORIZED BY THE ADVISORY SENTENCING GUIDELINES (If applicable.) A The sentence imposed departs (Check only one.): below the advisory guideline range above the advisory guideline range B Departure based on (Check all that apply.): 1 Plea Agreement (Check all that apply and check reason(s) below.): 5K1.1 plea agreement based on the defendant' substantial assistance s 5K3.1 plea agreement based on Early Disposition or " Fast-track"Program binding plea agreement for departure accepted by the court plea agreement for departure, which the court finds to be reasonable plea agreement that states that the government will not oppose a defense departure motion. Motion Not Addressed in a Plea Agreement (Check all that apply and check reason(s) below.): 5K1.1 government motion based on the defendant' substantial assistance s 5K3.1 government motion based on Early Disposition or " Fast-track"program government motion for departure defense motion for departure to which the government did not object defense motion for departure to which the government objected Other Other than a plea agreement or motion by the parties for departure (Check reason(s) below.): Reason(s) for Departure (Check all that apply other than 5K1.1 or 5K3.1.)
Criminal History Inadequacy Age Education and Vocational Skills Mental and Emotional Condition Physical Condition Employment Record Family Ties and Responsibilities Military Record, Charitable Service, Good Works Aggravating or Mitigating Circumstances 5K2.1 5K2.2 5K2.3 5K2.4 5K2.5 5K2.6 5K2.7 5K2.8 5K2.9 Death Physical Injury Extreme Psychological Injury Abduction or Unlawful Restraint Property Damage or Loss Weapon or Dangerous Weapon Disruption of Government Function Extreme Conduct Criminal Purpose 5K2.11 Lesser Harm 5K2.12 Coercion and Duress 5K2.13 Diminished Capacity 5K2.14 Public Welfare 5K2.16 Voluntary Disclosure of Offense 5K2.17 High-Capacity, Semiautomatic Weapon 5K2.18 Violent Street Gang 5K2.20 Aberrant Behavior 5K2.21 Dismissed and Uncharged Conduct 5K2.22 Age or Health of Sex Offenders 5K2.23 Discharged Terms of Imprisonment Other guideline basis (e.g., 2B1.1 commentary)

2

3 C
4A1.3 5H1.1 5H1.2 5H1.3 5H1.4 5H1.5 5H1.6 5H1.11 5K2.0

5K2.10 Victim' Conduct s

D

Explain the facts justifying the departure. (Use page 4 if necessary.)

AO 245B

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

STATEMENT OF REASONS
VI COURT DETERMINATION FOR SENTENCE OUTSIDE THE ADVISORY GUIDELINE SYSTEM (Check all that apply.) A The sentence imposed is (Check only one.): below the advisory guideline range above the advisory guideline range Sentence imposed pursuant to (Check all that apply.): 1 Plea Agreement (Check all that apply and check reason(s) below.):
binding plea agreement for a sentence outside the advisory guideline system accepted by the court plea agreement for a sentence outside the advisory guideline system, which the court finds to be reasonable plea agreement that states that the government will not oppose a defense motion to the court to sentence outside the advisory guideline system system

B

2

Motion Not Addressed in a Plea Agreement (Check all that apply and check reason(s) below.):
government motion for a sentence outside of the advisory guideline system defense motion for a sentence outside of the advisory guideline system to which the government did not object defense motion for a sentence outside of the advisory guideline system to which the government objected

3 C

Other
Other than a plea agreement or motion by the parties for a sentence outside of the advisory guideline system (Check reason(s) below.):

Reason(s) for Sentence Outside the Advisory Guideline System (Check all that apply.)
the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense (18 U.S.C. § 3553(a)(2)(A)) to afford adequate deterrence to criminal conduct (18 U.S.C. § 3553(a)(2)(B)) to protect the public from further crimes of the defendant (18 U.S.C. § 3553(a)(2)(C)) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the (18 U.S.C. § 3553(a)(2)(D)) to avoid unwarranted sentencing disparities among defendants (18 U.S.C. § 3553(a)(6)) to provide restitution to any victims of the offense (18 U.S.C. § 3553(a)(7))

most effective manner

D

Explain the facts justifying a sentence outside the advisory guideline system. (Use page 4 if necessary.)

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DEFENDANT: CASE NUMBER:

RAMON MARTINEZ 04-cr-00429-MSK

STATEMENT OF REASONS
VII COURT DETERMINATIONS OF RESTITUTION A B C X Restitution Not Applicable.

Total Amount of Restitution: Restitution not ordered (Check only one.): 1
2 For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because the number of identifiable victims is so large as to make restitution impracticable under 18 U.S.C. § 3663A(c)(3)(A). For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because determining complex issues of fact and relating them to the cause or amount of the victims' losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim would be outweighed by the burden on the sentencing process under 18 U.S.C. § 3663A(c)(3)(B). For other offenses for which restitution is authorized under 18 U.S.C. § 3663 and/or required by the sentencing guidelines, restitution is not ordered because the complication and prolongation of the sentencing process resulting from the fashioning of a restitution order outweigh the need to provide restitution to any victims under 18 U.S.C. § 3663(a)(1)(B)(ii). 4 Restitution is not ordered for other reasons. (Explain.)

3

D

Partial restitution is ordered for these reasons (18 U.S.C. § 3553(c)):

VIII ADDITIONAL FACTS JUSTIFYING THE SENTENCE IN THIS CASE (The defendant is sentenced as provided in pages 2 through 10 of this judgment in accordance with the findings and conclusions made in open court, a transcript of which is attached hereto and incorporated herein by reference. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.)

Sections I, II, III, IV, and VII of the Statement of Reasons form must be completed in all felony cases.

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1 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00429-MSK

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 RAMON MARTINEZ, 7 Defendant. 8 _______________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES JOSHUA STEIN, Assistant U.S. Attorney, 1225 17th Street, Suite 700, Denver, Colorado, 80202, appearing for the plaintiff. MATTHEW GOLLA, Assistant Federal Public Defender, 633 17th Street, 10th Floor, Denver, Colorado, 80202, appearing for the defendant. Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 901 19th Street, Room A259, Denver, Colorado, 80294, (303) 629-9285 REPORTER'S TRANSCRIPT (Sentencing Hearing: Order) _______________________________________________________________ Proceedings before the HONORABLE MARCIA S. KRIEGER, Judge, United States District Court for the District of Colorado, commencing at 9:58 a.m., on the 1st day of May, 2006, in Courtroom A901, United States Courthouse, Denver, Colorado.

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(The following proceedings were had and entered of record after the Court heard the arguments of counsel and statement of defendant:) THE COURT: Thank you. Then the Court will announce

the sentence it intends to impose, resolving the areas of dispute. Of course, Counsel, you will have the opportunity

after I have made my ruling to make any further legal argument before judgment is imposed. As we all know, sentencing in the federal system is governed by 18 U.S.C. Section 3553(a) and related statutes. Section 3553(a) enunciates Congress' intent with regard to sentencing. It obligates the Court to impose a sentence that

is sufficient but not greater than necessary to reflect the seriousness of the offense, to promote respect for the law and provide just punishment, to deter criminal conduct, to protect the public from further crimes by the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. The presentence investigation report provides valuable information with regard to the factors that the Court considers. And there are a number of them: the nature and

circumstances of the offense, the history and characteristics of the defendant, the kind of sentences that are available, what the Sentencing Guidelines would require, the need to avoid

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unwarranted sentence disparities among defendants with similar records found guilty of similar conduct, and the need for restitution. Here, the parties have not disputed the contents of the presentence investigation report, so the Court then turns to what the Federal Sentencing Guidelines would recommend. MR. GOLLA: I hate to interrupt, your Honor. I did

file objections to the presentence report. THE COURT: MR. GOLLA: I'm sorry. THE COURT: The Court then considers how the Federal Not to the factual contents. Okay. I just want to make sure -- okay.

Sentencing Guidelines would apply. The parties have disagreed as to how the sentencing guidelines apply. We have a number of disputes with regard to

the guidelines; but perhaps since this hearing has taken place over a sustained period of time and parties may want to appeal, it will be helpful for the Court of Appeals to have a cohesive analysis. So I will begin with the charges that were

originally made here, their disposition, and then we'll go through the guidelines. The charges were brought in a four-count superseding indictment filed with the Court on May 17, 2005. Count No. 1

charged the defendant with continuing criminal enterprise in violation of 21 U.S.C. Sections 848, 841(a)(1), 846, 952, 960,

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and 963.

The defendant was found not guilty on this count. In charge -- in Count 2, he was charged with

conspiracy to distribute and possess with the intent to distribute 500 grams or more of a methamphetamine in violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), and 846. found him guilty of this charge. In Count 3, the defendant was charged with distribution or possession with the intent to distribute 500 grams or more of methamphetamine and aiding abetting, in violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), and 18 U.S.C. Section 2. count. And Count 4, he was charged with distribution or possession with intent to distribute 500 grams or more of methamphetamine and aiding and abetting in violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), and 18 U.S.C. Section 2. This count was dismissed on the motion of the Government. As I indicated, a jury trial took place and the jury found the defendant guilty on Counts 2 and 3 and acquitted him on Count 1. We begin with a base offense level calculation for violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. Section 2. Section 2D1.1. The first disagreement that the parties have is in the This is governed by Sentencing Guideline He was found guilty by the jury on this The jury

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calculation of the amount of drugs involved in the offense.

It

is Section2D1.1(c), which sets forth the chart for calculation of the amount of drugs involved here. to the amount. The Government argues that the Court should tally the amount of drugs based upon the testimony of Ms. Meza that she sold 5 to 10 pounds of methamphetamine per week at the direction of the defendant and that she did this during the time period of June, 2003, through June, 2004. The Government The parties disagree as

asks that the Court consider certain corroborative evidence: that the defendant was arrested with 438 net grams of methamphetamine and $1,464 in cash; that the defendant had a number of telephone calls discussing transportation of large amounts of methamphetamine and a desire to set up a large deal for the distribution of methamphetamine; that Ms. Meza was arrested with 575 net grams of methamphetamine; that she had a drug ledger showing detailed information about drug transactions; that she led authorities to a storage shed where there were -- where authorities found 5 kilograms of methamphetamine and $41,000, and that varying amounts of methamphetamine were seized from other individuals. The defendant argues that the Court should limit the calculation to the amount of methamphetamine that actually was seized, 5 kilograms in the storage locker, 2 kilograms that were seized from Hugo Sotelo, and the 580 grams seized from

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Ms. Meza.

This totals 7.5 kilograms.

The verdict form in this case on Count 2 shows that the jury found that on both Count 2 and Count 3 that more than 500 grams of methamphetamine was involved in the transaction. If the Court were to adopted the Government's interpretation, the base offense level would be 38. With the

defense's interpretation, the base offense level would be 36. The Court finds, having considered the evidence at trial, the evidence presented at sentencing, and the facts that are stipulated as true in the presentence report, that for sentencing purposes the amount calculable under Section 2D1.1(c)(1) is more than 5 kilograms but less than 15 kilograms, resulting in a base offense level of 36. The Court declines to draw the inferences requested by the Government, most particularly that Ms. Meza worked for as compared to with the defendant. The Government has contended

throughout this case that Ms. Meza was a subordinate of the defendant, but the evidence is far from clear. Indeed, it is

only her statement that she was a subordinate that supports that contention. Her testimony that she worked for the The Court carefully

defendant is essentially uncorroborated.

observed her demeanor while testifying as well as the consistency within her testimony. Her testimony was undisputed

that she and the defendant were lovers; and therefore, her testimony both on a personal level and also on a legal level

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clearly was self-serving.

Her contention that she was directed

by the defendant was inconsistent with her apparent independence, her own sources of drugs, her own clients, her own discretion in making drug transactions, and her unfettered access to the storage locker holding the methamphetamine and $41,000 in cash. Historically, Ms. Meza and the defendant had

had independent connections with a drug organization in Arizona and New Mexico. Ms. Meza had property apparently acquired with

drug proceeds in New Mexico unrelated to this defendant; and, indeed, no assets were attributable to this defendant as proceeds from drug transactions. Thus, as to the drugs

Ms. Meza sold, the Court declines to attribute this to the defendant. As to the $41,000 in the storage locker, the Court cannot readily translate that sum into a specific quantity of drugs. There was no direct evidence as to the -- as to a

translation of that sum into a particularized quantity; and therefore, the Court concludes that the appropriate base offense level under Section 2D1.1(c) is 36. We next turn to the specific offense characteristic found at 2D1.1(b)(1). This provides for a two-level increase The

in the offense level if a dangerous weapon was possessed. Government argues that this adjustment should apply. defense opposes the application of the adjustment. The

Under Section 2D1.1(b), the two-level increase in the

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offense level applies, quote, "if a dangerous weapon, including a firearm, was possessed." Application Note 3 to this

guideline provides, quote, "The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the

enhancement would not be applied if the defendant arrested at his residence had an unloaded hunting rifle in the closet," unquote. The application note further provides, quote, "The

initial burden is on the Government to prove possession of the weapon by a preponderance of the evidence, which may be satisfied by showing mere proximity to the offense," unquote. And the Tenth Circuit case for that proposition is U.S. vs. Humphrey, 208 F.3d 1190, a Tenth Circuit, 2000 decision. After the Government has met this burden in accordance with Humphrey, a defendant can avoid the enhancement if he can prove that it is clearly improbable that the weapon was connected to the offense. In a drug conspiracy conviction, the

adjustment is applied unless it is clearly improbable that the weapon was connected with the conspiracy offense. According to the jury instructions, the dates of the conspiracy here were from on or about June, 2003, through on or about September 29, 2004. Here, we have several weapons Christine Alvarado had a loaded

connected with the conspiracy.

pistol and full magazine in her purse in a car driven by the defendant when they were stopped in February of 2004, the

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defendant had a pistol grip shotgun in his home, Ms. Meza had a pistol in her apartment which she had accepted in trade for methamphetamine, and Jose Loya had a gun in the right front pocket of his shirt when he was arrested. Only if it is

clearly improbable that every one of these weapons were not involved with a conspiracy can the defendant avoid this enhancement. Put another way, if any one of these guns is

connected with the conspiracy, the enhancement applies. Based upon the record before the Court, the Court cannot find that it is clearly improbable that every one of these guns were unrelated to this offense. Put another way,

all four of these guns were involved with various people in the conspiracy, and the defense has not shown improbability as to every single one. Therefore, the Court concludes that the specific offense characteristic under 2D1.1(b)(1) applies. We turn then to the specific offense characteristic under 2D1.1(b)(4). Under this section, the guidelines provide

for a two-level increase in the offense level if the offense involved importation of methamphetamine or the manufacture of methamphetamine from listed chemicals that the defendant knew were imported unlawfully and the defendant is not subject to an adjustment under Section 3B1.2, a mitigating role. The

Government argues that this offense characteristic should apply. The defense opposes it. Neither party argues that a

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mitigating role is appropriate. In turning to 2D1.1(b)(4), the Court turns to the specific language of the section: quote, "if (a) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully and (b) the defendant is not subject to an adjustment under Section 3B1.2." As I noted, no one has argued the application of Section 3B1.2 here, so the question is whether the defendant knew that the methamphetamine was imported or manufactured from -- from chemicals that were imported. In making this

determination, a court can take into consideration the strength of the evidence in support of sentencing enhancements. The

Court has carefully considered the evidence presented by the agent in translating unsworn statements, particularly in telephone conversations by the defendant. That agent has

testified that there were numerous transactions described, many of which were in code. Even discounting the agent's

translation of the encoded portions of the conversations and the accuracy of the translations, the Court can conclude that these were (1) business calls; (2) they described transactions in Mexico or transactions related to people in Mexico, in particular El Señor in Mexico sending loads to the United States, and (3) there was no other apparent source of drugs

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other than of Mexican origin.

Therefore, the Court concludes

that this enhancement applies as well. There are no victim-related adjustments; and we turn, then, to adjustments for role in the offense. Adjustments for

role in the offense are governed by guideline Section 3B1.1(a). This section provides for a four-level increase in the offense level if the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. Now, this section actually provides

either for a four-level increase or a possible two-level increase. Under (a), the four-level increase applies where a

the defendant was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive. Under subsection (c), there is a two-level increase

if the defendant was an organizer, leader, manager or supervisor in any criminal activity. Either enhancement must

be proved by the Government by a preponderance of the evidence, and the Court may take into account the strength of the evidence in such analysis. In assessing whether an organization is otherwise extensive, all persons involved during the course of the entire offense are to be considered in accordance with Application Note 3. An organization can be otherwise extensive if there

are fewer than five participants; for instance, if the participants used the unknowing services of many outsiders.

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The Court notes that Mr. Martinez was acquitted of being part of a continuing criminal enterprise. The elements

of this offense as set forth in the jury instructions were that Mr. Martinez engaged in a continuing series of related violations of federal narcotics law in association or concert with five or more persons; in this series of violations of federal narcotics law Mr. Martinez organized, managed, or supervised five or more persons, and from this series of violations of federal narcotics law Mr. Martinez obtained substantial income or resources from the continuing series of narcotics violations. Although the jury acquitted him of this

offense, the standard of proof at sentencing is different. It's a preponderance of the evidence. And therefore, the

acquittal does not necessarily direct the outcome of the Court's analysis. The Government contends that there was evidence that the defendant directed the activities of Meza, another person in Colorado, Beto, Sotelo, two other people who delivered methamphetamine to New Mexico, and two female drivers. Alternatively, it contends that if the Court were to discount the connection or supervision of Meza and the two delivery people that had been -- had been directed as part of Detective Flores' transaction that nevertheless there would be four people involved and that the two-level increase under Section 3B1.1(c) would be applicable.

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The Court, in reviewing the record here, found no specific testimony that the defendant organized, led, managed or supervised Sotelo; however Detective Flores testified that the defendant was a middleman in the organization. As noted

earlier, the Court does not find that Ms. Meza was the defendant's subordinate. It also does not attribute the

direction of two drivers to the defendant when these drivers were arranged in the transactions set up and directed by Detective Flores. That leaves two female drivers described by

Ms. Meza and Beto, perhaps Sotelo, that were supervised, managed, or led by the defendant. The definition of supervision has been explored by the Tenth Circuit in the case of United States vs. Backas, found at 901 F.2d 1528. It's a 1990 decision. And in this decision,

the Tenth Circuit applies the following definition for this subsection: "Properly applied, we conclude that Section

3B1.1(c) and the term 'supervisor' are satisfied upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme." Therefore, it is not appropriate for this court to measure the degree of control, for any degree of control constitutes supervision for purposes of this application. At least as to

the drivers who supplied this defendant, there was demonstrable direction and control; and therefore, the Court finds that two -- a two-level increase pursuant to Section 3B1.1(c) is

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appropriate as an adjustment for role in the offense. Tallying these up, the Court finds that the offense level here is 41, the criminal history category is II. Now,

everyone is doing the math, so we'll give everyone a chance to do their tally, too, and see if my math is correct. MR. STEIN: Your Honor, I come up with 42 for the

offense level: 36 for the base offense level, plus 2 for the gun is 38, plus 2 for importation is 40, plus 2 for role in the offense would be 42, your Honor. THE COURT: MR. GOLLA: Honor, yes. THE COURT: reasoning. I'm not asking whether you agree with the Is everyone in agreement? I agree that's how it would add up, your

Only the math. That's the math. All right. And we'll ask our probation

MR. GOLLA: THE COURT:

officer to double-check as well. THE PROBATION OFFICER: correct. THE COURT: As we all know, lawyers are not Yes, your Honor. That's

mathematicians, nor are judges. The criminal history category here is II; and at an offense level of 42, the presumption of months of imprisonment under the guidelines is 360 to life. same one as for 41. Interestingly, that's the

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As to supervised release, the guidelines anticipate five years as to each count, concurrent. Probation is not

available, and the presumptive fine is $25,000 to $8 million. There is a special assessment as to each count of $100. Now, the defendant argues alternatively that a non-guideline sentence should be imposed here under Section 3553(a). And this court has for some time operated in

accordance with the U.S.A. vs. Wilson case out of Utah in first calculating the presumptive sentence under the guidelines and then considering a non-guideline sentence if there are aggravating or mitigating circumstances of a kind or a degree not adequately taken into consideration in the guidelines. That approach was affirmed in the recent decision of United States of America vs. Richard Terrell, a decision of the Tenth Circuit Court of Appeals on April 20 of this year. I use the

same approach here as I did in Terrell and have in prior cases. Having determined what the guidelines would mandate as far as a sentence, I turn to the question of whether a non-guideline sentence should be imposed. The defense has argued that a non-guideline sentence should be imposed because Ms. Meza, the cooperating witness, has avoided any significant legal consequence for her involvement in this conspiracy. She has not been prosecuted in

federal court, and she received a ten-year probationary sentence in the state court on charges brought there of which

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this court has no details. The defense argues that under Section 3553(a), the Court is obligated to consider the need to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct. The Government opposes a

non-guideline sentence, arguing for life imprisonment. Candidly, it is troubling to this court that Ms. Meza was not charged in this or another case here in federal court. The argument that she was a subordinate or a victim of this defendant was belied by her demeanor, her facility in testifying, the inconsistencies in her testimony, and her successful leverage of the legal system to her benefit. This, however, is not a problem that results in disparity of sentencing. charging. This problem is a disparity in

Why the Government felt that it was appropriate to

charge Mr. Martinez and not Ms. Meza is beyond me, but it is the Government in its discretion that is answerable to the people with regard to that decision. It does not justify a

change in the sentence either for policy reasons or under the specific provisions of 3553(a). Let me begin with the specific provisions of 3553(a). 3553(a) directs the Court to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct. I do not have a record before me that

demonstrates that Ms. Meza was found guilty of similar conduct

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nor that she has a similar record as to Mr. Martinez; so from a technical perspective, I do not have sufficient facts to make this portion of 3553(a) applicable. Secondly, I have no authority that suggests that the Court is obligated or should try to correlate different charges and different sentencing schemes in different jurisdictions. In other words, the Court is without the benefit of knowing what the charge, facts, negotiations, and ultimate sentence determination was in the state court and cannot compare it to what goes on under the federal statutes and sentencing scheme. It may be that Congress intended the Court to be able to do just that. I've not found case authority for that proposition,

and Mr. Golla has not, either; but even if the Court were authorized to do it, I don't have the tools with which I can do it because I don't have sufficient facts before me. Now, from a policy perspective, it also is inappropriate to decrease Mr. Martinez's sentence because Ms. Meza was successful in leveraging her interaction with the state and federal authorities. probably applicable here: There is an old saying that is

Two wrongs don't make a right.

Here, I am concerned under Section 3553(a) with the objectives that Congress has set forth: deterring criminal conduct, protecting the public from further crimes by this defendant, and imposing a sentence that reflects the seriousness of the offense, promotes respect for the law, and

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provides just punishment. Mr. Martinez is held accountable for what he did. doesn't get a reduction because Ms. Meza was not held accountable or sufficiently accountable. I can assure you that He

had Ms. Meza been charged and convicted of the same offenses as this defendant with the same criminal record that this court would assuredly equalize the sentences. But I am not presented

with that circumstance and I find no justification for a non-guideline sentence based thereon. It is therefore this

court's intention to sentence in accordance with the guidelines. The Court further finds that the defendant has no ability to pay a fine and therefore does not intend to pay a fine -- does not intend to impose a fine. Having found that the total offense level here is 42 and the defendant's criminal history category is II, this would result in a guideline term of 360 months to life. The Court

intends to impose a sentence of 360 months, bottom of the range. The Court does not intend to impose a fine. The Court

intends to impose a supervised release period of five years on each count to run concurrently, subject to all statutory obligations and subject to a special condition that if the defendant is deported he not thereafter reenter the United States illegally. If he reenters the United States legally, he

will report to the nearest United States probation office

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within 72 hours of his return. The Court is required to impose a special assessment of $200, which is due immediately. Is there any further argument? MR. STEIN: No further argument, your Honor.

I would just note that I heard the Court's concerns as far as the charging decisions of the Government in this case loud and clear. I was not privy to them. I came into the case

later; but I will discuss it with my chain of command and make sure that they understand the Court's concerns, your Honor. THE COURT: MR. STEIN: MR. GOLLA: Thank you. Yes, ma'am. Your Honor, just a couple things. The

first thing I want to address to the Court is -- This is just my recollection of Ms. Meza's testimony, but I believe the Government did go through her previous criminal history during the course of the trial in some depth, so that there was some -- there was information about her criminal history and her background. I think the Court would have as far as one of

those factors the Court was considering whether or not subsection (a)(6) would be an appropriate means of sentencing below the advisory range. The other thing I wanted to say to the Court is this: I realize U.S. vs. Terrell -- I've read the case. My objection

to that case is I think it is inappropriate to just look at the

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actual guideline range as a mandatory step in sentencing. think the Court can look -- without looking at that 360 to life, I think the Court can look below that right away, considering all the factors of 3553. That's all I have. THE COURT: Thank you.

I

That one, you'll have to take

up with the Tenth Circuit. To the extent that any further elaboration is required, the Court does recall some information regarding Ms. Meza's history. However, such information is -- is not

complete, is not in the same kind of format or using the same considerations that we would use in federal sentencing. And

even if the Court had it all before me, I would still decline to depart -- or I should say decline to impose a non-guideline sentence based on a disparity in charging, not a disparity in sentencing. For the reasons previously articulated and having considered all of counsel's arguments in the many briefs that have been filed and the arguments made in this hearing, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Ramon Martinez, be committed to the custody of the Bureau of Prisons to be imprisoned for a term of 360 months on each count, to be served concurrently. Upon release from imprisonment, he will be placed on

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supervised release for a term of five years.

This term

consists of terms of five years on each count, such terms to run concurrently. Within 72 hours of release from the custody

of the Bureau of Prisons, he will report in person to the probation office in the district in which he's released. While

on supervised release, he will not commit another federal, state, or local crime, shall not possess a firearm as defined in 18 U.S.C. Section 921, and shall comply with the standard conditions that have been adopted by this court. He will

comply with the mandatory drug testing provisions of 18 U.S.C. Section 3583(d) unless he is deported. He will cooperate in

the collection of DNA as directed by the probation officer. In addition, he will comply with the following special conditions: If he is deported, he will not thereafter enter If he reenters the United States

the United States illegally.

legally, he will report to the nearest United States probation office within 72 hours of his return. No fine is imposed;

however, he is obligated to pay a special assessment of $200, which is due immediately. Mr. Martinez, I advise you of your right to appeal your conviction and your sentence. If you desire to appeal, a

notice of appeal must be filed with the Clerk of the Court within 10 days after entry of judgment or you lose your right to appeal. Ordinarily, Mr. Golla would file that notice of

appeal for you; but if he is unable or unwilling to and you so

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request, I will direct the Clerk of the Court to prepare and file a notice of appeal on your behalf. Is there anything further to bring before the Court? MR. STEIN: MR. GOLLA: THE COURT: No, your Honor. No, your Honor. Then the defendant is remanded to the We'll stand in recess. Thank you.

custody of the United States Marshal. (Recess at 10:39 a.m.) * * * * *

REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. at Denver, Colorado, this 2d day of May, 2006. Dated

______________________________ Paul A. Zuckerman