Free Sentencing Statement - District Court of Colorado - Colorado

Case 1:04-cr-00429-MSK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CASE NO. 04-cr-00429-MSK UNITED STATES OF AMERICA, Plaintiff, v. RAMON MARTINEZ, Defendant. __________________________________________________________________ SENTENCING MEMORANDUM __________________________________________________________________ The Defendant, Ramon Martinez ("Mr. Martinez"), by and through his counsel, Assistant Federal Public Defender, Matthew Golla, submits the following Sentencing Memorandum pursuant to the Court's Order of December 8, 2005. I. Calculation of Methamphetamine - U.S.S.G.§ 2D1.1(c) A. Ms. Adelaida Meza's Testimony 1. Seized Methamphetamine

The Government presented several witness whose testimony touched upon the amount of methamphetamine. Some of the testimony was corroborated by the fact that certain amounts of methamphetamine were seized while other testimony was simply not.

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Mr. Martinez's position is that only the seized methamphetamine should be used for purposes of sentencing. During the course of the trial, Agent Michael Simler ("Agent Simler") testified that he searched a storage locker at 4915 East Galley Road in Colorado Springs. (TT Pg. 94; 11-14). Agent Simler seized approximately five kilos of methamphetamine from the storage locker - unit 19. (TT Pg. 99; 9-18). On May 30, 2004, Agent Karl Hedrick testified that approximately 2 kilos of methamphetamine was seized from a white Buick driven by Hugo Sotelo. (TT Pg. 384; 3-7 and Pg. 390; 21-25). Another half kilogram of methamphetamine (580 grams) was seized from a vehicle Ms. Meza was driving at the time of her arrest. (TT Pg. 62; 1-8). The total amount of methamphetamine seized weighs in at approximately seven and a half kilograms. As stated in previous objections to the PSI, Ms. Meza-Chaidez ("Ms. Meza"), is the one witness who, after receiving a probation sentence and awaiting potential deportation, testifies about other uncorroborated activity with Mr. Martinez. Her

uncorroborated testimony potentially triples the amount of methamphetamine that could be used for sentencing purposes.

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B.

Uncorroborated Testimony

Ms. Meza testified that she first began working for Mr. Martinez in May of 2003 and traveled with Mr. Martinez from Albuquerque, New Mexico to Farmington, New Mexico to deliver five kilos of cocaine. (Pg. 131-132; 15-25 and 1). Ms. Meza stated that Mr. Martinez received between 110,000 and 130,000 for the five kilos of cocaine because she counted it. (Pg. 133; line 19-22). In the middle of June 2003, Ms. Meza testified that she traveled to Colorado Springs by way of Durango with Mr. Martinez. Mr. Martinez had 6 pounds of methamphetamine and Ms. Meza met Carlos when they arrived in Colorado Springs. Carlos picked up Ms. Meza up at her house. Pg. 134 (TT Pg. 18-21). When Ms. Meza stopped in Durango with Mr. Martinez, they stopped at a fork in the road and Mr. Martinez sold a pound of "drugs" to a man for $8000. ( Pg. 135; 12-21). From there they traveled to Colorado Springs where they rented the storage facility. Ms. Meza stored the 5 pounds of methamphetamine in a storage facility (Pg. 135-136; 24-5). Ms. Meza testified that she sold 5 pounds of methamphetamine during the first two weeks and then gradually sales increased to the point when I was selling 10 pounds a week. (Pg. 138; 23-25).

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When Ms. Meza ran out of drugs, she would call Ramon to bring a resupply, but usually two women, or Carlos, or another man would bring drugs. (Pg. 139; 613). In January of 2004 they changed storage facilities at the direction of Martinez and Carlos. (Pg. 139-140; 24-25 and 1-3). Ms. Meza traveled to Phoenix, Arizona three time during the six months that she stayed in Colorado Springs. (Pg. 140; 14-18). Each of those times she would travel with Mr. Martinez. (Pg. 140; 20-24). Ms. Meza was ordered to take a pound of methamphetamine to Ram by Martinez. (Pg. 142; 2-4). Two women came and delivered methamphetamine to Ms. Meza the day after the storage facility was rented. (Pg. 10-17). The women were sent by Mr. Martinez and brought the methamphetamine in bags of luggage. (Pg. 149; 1-4 and 14-16). Ms. Meza received 6 pounds of methamphetamine on January 14, 2004. (Pg. 149-50; 25and 2-3). Martinez told Ms. Meza that 20 pounds of meth had arrived after Ms. Meza ran out of the 6 pounds. (TT Pg. 150; 18-21). It took a week, approximately five days, to sell the 6 pounds of meth. (TT Pg. 151; 4). Ms. Meza's statements are not corroborated by the statements of any other conspirators or accomplices. Drug quantities for sentencing purposes cannot be based

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upon on uncorroborated testimony, especially when the benefits flowing to the source of that testimony are outlandish. See United States v. Fennell, 65 F.3d 812, 813-814 (10 th Cir. 1995) (noting that unsworn, uncorroborated out of court statements are not favored in sentencing proceedings); see also United States v. Richards, 27 F.3d 465, 469 (10 th Cir. 1994) (holding that drug quantities for sentencing purposes can be based on estimates but noting that such estimates cannot be based on vague, uncorroborated testimony or quesswork). C. Detective Flores' Testimony Detective Flores testified that in December of 2003 he stopped Mr. Martinez driving a Black Ford truck and found 464 grams of methamphetamine during a search of the vehicle. (TT Pg. 8; 20-24). On December 18,2003, Mr. Martinez led Det. Flores to a hotel in Albuquerque, New Mexico where 4 pounds of methamphetamine was seized. (TT Pg. 14-15).

II.

Role Adjustment Over the seven month time period that Ms. Meza worked for Mr. Martinez, she

testified that she saw two women who worked for Mr. Martinez on average of once a month. (TT Pg. 160; 22-25).

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Ms. Meza identifies one of the persons, Margarite, who brought her drugs once a month, through exhibit 17 (photograph). (TT Pg. 161; 18-20). Through exhibit 19, Ms. Meza identifies another woman who brought her "people" at Martinez' direction. (TT Pg. 162-63; 18-25 and 1-4). Ms. Meza testified that a 20 pound shipment of meth arrived, but she was unsure as to how much methamphetamine that Carlos had, stating that she was she thought the amount left over in the storage facility was the remains of what Carlos had received from Martinez. (TT Pg. 166; 7-14). Two other men and two women came and delivered drugs or picked up money. (TT Pg. 166; 18-23). Mr. Martinez' argument is two- fold with respect to the four level enhancement requested by the government and adopted by the probation department. First, the government failed to carry its burden that of proving that Mr. Martinez exercised control or decision making authority over any of the accomplices and even assuming that Mr. Martinez exercised control or decision making authority over some of his accomplices. It did not prove that he exercised such authority over five of his accomplices. Mr. Martinez qualifies for a four level upward adjustment under U.S.S.G. §3B1.1 if he " was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." See U.S.S.G. 3B1.1(a).

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As argued previously in his initial objections to the PSI, Mr. Martinez was not convicted of Count 1 of the superseding indictment. The elements of that particular count, which the jury did not find beyond a reasonable doubt, were that Mr. Martinez was an organizer, supervisor or manager of five or more persons. The Government claims that Mr. Martinez exercised leadership control over Ms. Meza, however, one of the factors that the Court may consider in determining this enhancement is " the claimed right to a larger share of the fruits of the crime." See U.S.S.G. §3B1.1 Commentary, Application Note 4. It appeared from the evidence that was introduced at trial that Ms. Meza had more assets than Mr. Martinez, although the assets she purchased were prior to the dates charged in the conspiracy. Ms. Meza purchased a house in Phoenix in January of 2000. (TT Pg. 206; 7-10 and pg. 207; 15-20). Ms. Meza also purchased a 40-acre of property outside Phoenix in September of 2002 for $43,000 in cash. (TT Pg. 209;5-10). There were no assets introduced by the Government during trial linking Mr. Martinez with any property.

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III.

Firearm Adjustment Several firearms were found during the investigation, however, as argued in Mr.

Martinez's prior objections to the PSI, there were no drugs in the vicinity. There was a firearm found in Ms. Meza's apartment after her arrest and consent to search her residence, 1129 Bennett Avenue, Apartment 106. (Pg. 81; 6-10). The firearm was a 9-millimeter semiautomatic pistol located in a dresser. (Pg. 83; 20-23). When Mr. Martinez was stopped while driving through Arizona, Officer Neve found a Smith and Wesson semiautomatic handgun in a purse on the floorboard of the car. (Pg. 274; 24-25 and pg. 275;1-6). Ms. Christina Alvarado was charged with possession of the firearm, not Mr. Martinez. (Pg. 307; 16-17). Another firearm found was a shotgun in the residence where Mr. Martinez was arrested pursuant to the execution of a search warrant. On a shelf in the closet of the bedroom officers discovered a Mossberg 500A shotgun. (TT Pg. 451; 20-25).

Although officers were looking for drugs in the house, they found none. (TT Pg. 456; 8-11). The last firearm was a .22 caliber handgun found in the right front pocket of Jose Loya at the time of his arrest. (TT Pg. 404; 20-25 and pg. 405; 1-7). This handgun was possessed solely by Mr. Loya and it was not foreseeable to Mr. Martinez. From the evidence adduced at trial there was no temporal connection with

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this pistol and the methamphetamine found in the vehicle driven by Hugo Sotelo. From the phone calls submitted at trial and the surveillance conducted by government agents, there was no evidence submitted that showed the prior disposition of the gun, its' proximity to the methamphetamine seized from the vehicle or that it was used to protect the methamphetamine found in Sotelo's vehicle.

IV.

Importation of Methamphetamine The government introduced testimony from Agent John Preeg ("Agent Preeg")

at the previous sentencing hearing to support an enhancement pursuant to U.S.S.G. §2D1.1(b)(4), calling for a two level enhancement if the "offense involved the importation of methamphetamine." See U.S.S.G. §2D1.1(b)(4). The argument presented by the government, through Agent Preeg, was that language to the effect of, "I'm making something" can be construed as bringing methamphetamine into the United States from Mexico. (Sentencing Testimony, pg. 47; 18-20). Mr. Martinez argues that this language is insufficient, even by a

preponderance of evidence standard to satisfy the two-level enhancement pursuant to U.S.S.G. §2D1.1(b)(4).

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Respectfully submitted, RAYMOND P. MOORE Federal Public Defender

s/ Matthew C. Golla MATTHEW C. GOLLA Office of the Federal Public Defender 633 - 17 th Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 E-mail: [email protected] Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on January 17, 2006, I electronically filed the foregoing SENTENCING MEMORANDUM with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Bernard Edward Hobson, Assistant United States Attorney [email protected] [email protected] [email protected] Joshua Gramling Stein, Assistant United States Attorney [email protected] [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: United States Probation Office (by court pickup box) 1929 Stout Street, Suite C-120 Denver, CO 80294-0101 Ramon Martinez (by mail) Reg. No. 26827-051 c/o Federal Detention Center 9595 W. Quincy Avenue Littleton, CO 80123 Additionally, on this same date a courtesy copy of the foregoing was e-mailed to the Honorable Judge Krieger at [email protected]. s/ Matthew C. Golla MATTHEW C. GOLLA Assistant Federal Public Defender Attorney for Defendant 633 - 17 th Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 [email protected]
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