Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona DAVID A. PIMSNER Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 007480 Telephone (602) 514-7500 [email protected]

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United States of America, CR-03-0787-PHX-MHM Plaintiff, v. Otoniel Sanchez-Cortez, aka Pompeyo Sanchez-Cortez, aka Colon Pompeyo Sanchez, Defendant. The United States of America, by and through undersigned counsel, respectfully requests that the Court deny the Defendant's objection to the presentence investigation because the defendant is not entitled to an adjustment in the sentencing guidelines for a minimal or minor role in the offense. To the contrary, the presentence report accurately designated the defendant as an organizer, leader, manager, or supervisor of others in the offense pursuant to U.S.S.G. § 3B1.1(c). I. FACTS The government asserts that the facts support a conclusion that the defendant operated a transportation cell for loads of narcotics being shipped from Arizona to other States. In the above -referenced case, the defendant agreed under oath, in his written plea agreement, that on or between January 6, 2003 and January 9, 2003, in the District of Arizona and elsewhere, he knowingly conspired, with Edgar Ochoa Ortiz, Arturo Sarabia-Lopez, and others to possess with GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT

Case 2:03-cr-00787-MHM

Document 116

Filed 05/01/2006

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intent to distribute five kilograms or more of cocaine, a Schedule II controlled substance. Specifically, prior to January 6, 2003, the defendant was contacted by an individual he knew as Rali who asked the defendant to assist in arranging for the transportation of a load of cocaine and a load methamphetamine from Arizona to Illinois and Virginia. The cocaine was destined for Illinois and the methamphetamine was destined for Virginia. The defendant subsequently contacted Augustin Rodriguez who drove a truck in order for him to transport the two drug loads. Rodriguez agreed to transport the cocaine and methamphetamine. The defendant then contacted Edgar Ochoa-Ortiz who, along with others, controlled a stash house which contained the cocaine. The defendant also met with Ochoa-Ortiz and discussed the details of the cocaine delivery to another individual who would then deliver the cocaine to Augustin Rodriguez. Ochoa-Ortiz and Arturo Sarabia-Lopez subsequently delivered to this unknown individual, in two separate deliveries, approximately 54 kilograms of cocaine which was subsequently provided to Augustin Rodriguez. An additional 35 pounds of methamphetamine was also delivered to Rodriguez by the same unknown individual. The defendant has the burden to prove by a preponderance of evidence that he is entitled to an adjustment as a minor or minimal participant in the criminal conduct charged. United States v. Davis, 36 F3d 1424, 1436 (9th Cir. 1994). Cert denied, 115 S.Ct. 1147 (1995). The 9th Circuit has consistently held that a downward adjustment for a defendant's role in the offense "is to be used infrequently and only in exceptional circumstances". Davis, 36 F.3d at 1436. In the case of drug courier, the 9th Circuit has held that, there must be some additional factor involved to warrant a downward adjustment for a minimal or minor role in the offense. Id. at 1436-37. Citing United States v. Zweber, 913 F2d 705, 710 (9th Cir. 1990), the 9th Circuit held that where a courier was entrusted with valuable drugs and received money for its transportation, he was trusted with the responsibility and could claim no downward adjustment. Davis, 36 F.3d at 1437. See also, United States v. Lui, 941 F.2d 844, 849 (9th Cir. 1991), (possession of a substantial amount of narcotics grounds for refusal of downward adjustment); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989) (minimal or minor participant
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adjustment denied because, among other things, 574.06 grams of heroin or equivalent considered a significant quantity of drugs). In the case at hand, the defendant operated a transportation cell for large quantities of illegal drugs destined for other States. He recruited the courier and organized the delivery of cocaine and methamphetamine to the courier. Even assuming that the defendant was acting at the request of another person, the defendant's role in operating the transportation cell and recruiting and directing the courier to transport and deliver both cocaine and methamphetamine justified an enhancement pursuant to U.S.S.G. §3B1.1. Notwithstanding the defendant's recruitment of the courier and the organization of the delivery of the drugs, the 54 kilograms of cocaine and the 35 pounds of methamphetamine involved in the conspiracy is a substantially larger quantity of drugs compared to the amount of heroin considered in denying a minor role in Sanchez-Lopez, Id. Accordingly, a minor or minimal role should not be applied. "To impose an enhancement under U.S.S.G. § 3B1.1(a), the district court must determine that `the defendant exercised some control over others involved in the commission of the offense [or was] responsible for organizing others for the purpose of carrying out the crime.' United States v. Harper, 33 F.3d 1143, 1151 (9th Cir.1994). `In determining whether a defendant controlled or organized others, the district court should consider the following factors: (1) the exercise of decision making authority, (2) the nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and authority exercised over others.' United States v. Narte, 197 F.3d 959, 966 (9th Cir.1999) (internal quotations omitted)." United States v. Berry, 258 F.3d 971, 977 (9th Cir. 2001). Clearly, the defendant recruited the courier and exercised decision making authority and control over the delivery of the cocaine and methamphetamine to the courier in order to complete the offense. Accordingly, the enhancement is properly applied.

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III. CONCLUSION: The government requests that the defendant's objection be denied. Respectfully submitted 1st day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney CERTIFICATE OF SERVICE

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I hereby certify that on May 1, 2006, I sent via U.S. mail the foregoing motion to defense attorney, Mr. Garcia, who is 11 not an ECF registrant:
10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case 2:03-cr-00787-MHM Document 116 Filed 05/01/2006 Page 4 of 4 Albert Garcia Law Office of Albert Garcia 127 N Alamo Rd Alamo, TX 78516