You Can’t Get There From Here – Update for October 25, 2016

We’re still doing a weekly newsletter… we’re just posting pieces of it every day.  The news is fresher this way…


Remember Bil Keane’s comic strip Family Circus? Keane started the strip in 1960, and his son is keeping it going strong.

familyc161025One of Family Circus’s recurring themes was the depiction of the circuitous routes young Jeffy would take – traced in dashed line – when he had been sent on some time-sensitive errand. Yesterday, the 10th Circuit faced a similar situation in a methamphetamine case, and held that by the time perps had gotten from Point A to Point B, a court could no longer assume that what was at Point B had anything to do with the defendant who was at Point A.

Confused? Follow. Emanuel Godinez-Perez was indicted for conspiracy to traffic in 500 grams or more of meth, and a couple of distribution counts for 50 grams or more. He pled guilty without a plea agreement.

During the investigation, agents seized ten different quantities of meth, 96% pure, which amounted to 1,505 grams. His sentencing court set his base offense level at between 1.5 and 4.5 kilos, and – after all of the other factors were weighed – Manny’s sentencing range was 108-135 months. The court gave him 108.

Manny admitted that about 602 grams were under his control, but another 887 grams were seized in the search of a storage unit he had nothing to do with. He argued “the record does not support that [he] agreed to jointly undertake the distribution of more than 1.5 kilograms of [I]ce.” Manny complained that the district court was required to “make particularized findings about relevant conduct—here, the drug quantity and type — attributable to the defendant, rather than just default to the overall conspiracy.”

What happened was this: Agents set up a controlled buy with Manny, but he said he couldn’t meet the CI until after he got off work. Meanwhile, agents were watching an apartment on Central Avenue in Kansas City – near where Manny had made prior sales – when they three guys get into Chevy SUV and drive away. The SUV went to a gas station, where the guys got out and made some cellphone calls. A little while later, the SUV left the gas station and went a grocery store. The SUV parked there until a Jeep came by, and then followed the Jeep to another apartment complex. A little while later, the SUV and Jeep left the apartments, and drove to a self-storage unit in Olathe, Kansas. The people from both cars went into Unit 17D. A few minutes later, they all left.

Later, the CI got a call from Manny that he was ready, and they exchanged 4 ounces of ice for $3,600. At that time, Manny quoted the CI prices for pound and kilo quantities.

This was not the drug-sniffing dog... but he would be the first to tell you not to leave controlled substances in your storage unit.
        This was not the drug-sniffing dog… but he would be the first to tell you not to leave your controlled substances in a storage unit.

The agents brought a drug-sniffing dog to the self-store, and after the mutt alerted to Unit 17D, found 887 grams of ice.

Yesterday, the 10th Circuit agreed. Guidelines Sec. 1B1.3, which addresses relevant conduct, is intended to make the punishment fit the crime. It says a defendant’s base offense level shall be determined on the basis of everything the defendant did, plus, “in the case of a jointly undertaken criminal activity… all acts and omissions of others that were… within the scope of the jointly undertaken criminal activity… in furtherance of that criminal activity, and… reasonably foreseeable in connection with that criminal activity.” This includes drugs the defendant didn’t handle, if possession by a co-conspirator was in furtherance of the jointly undertaken criminal activity, and reasonably foreseeable in connection with that criminal activity.

punish161025Manny might have been smart to avoid the plea agreement, because the only thing he admitted to in his guilty plea was distributing more than 50 grams and conspiring on more than 500. The problem is, the appellate court said, is that “the district court adopted the factual findings contained in the Presentence Report and otherwise made no independent factual findings of its own at the time of sentencing. Unfortunately, however, the factual findings contained in the PSR and adopted by the district court did not address the scope of the criminal activity that Godinez agreed to jointly undertake. Nor did the PSR’s factual findings otherwise include information specifically linking Godinez to all of the quantities of methamphetamine that were seized during the investigation. Consequently, we conclude… the district court erred…”

The government said it could put Manny at the storage unit, but the Circuit said that “the storage unit may not have been owned, rented, or otherwise controlled by Godinez or a coconspirator… In other words, the limited evidence contained in the record on appeal is not so one-sided that the district court would have had no choice but to attribute to Godinez, as part of the conspiracy to which he pled guilty, the 887.26 grams of methamphetamine that were stored in and seized from the storage unit.”

Manny isn’t home free. He goes back for resentencing, at which time the government is free to try to connect him to the 887 grams.

United States v. Godinez-Perez, Case No. 15-3159  (10th  Cir.  Oct. 24, 2016)


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