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United States v. Godinez-Perez

United States Court of Appeals, Tenth Circuit

December 22, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
EMANUEL GODINEZ-PEREZ, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 2:14-CR-20066-JAR-1)

          Melody Brannon, Federal Public Defender, District of Kansas, Topeka, Kansas, for Defendant-Appellant.

          Carrie N. Capwell, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.

          BRISCOE, Circuit Judge.

         Defendant Emanuel Godinez-Perez (Godinez) pleaded guilty to three criminal counts arising out of his role in a conspiracy to distribute and possess with intent to distribute more than 500 grams of methamphetamine. The district court sentenced Godinez to a term of imprisonment of 108 months, to be followed by a two-year term of supervised release. Godinez now appeals his sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Godinez that the district court erred in calculating his base offense level and, in turn, his advisory Guidelines sentencing range. Specifically, the court erred in failing to make particularized findings regarding relevant conduct attributable to Godinez. Consequently, we remand to the district court with directions to vacate Godinez's sentence and resentence him.

         I

         A

         In June and July of 2014, law enforcement agents from the Kansas Bureau of Investigation (KBI) and the United States Department of Homeland Security-Homeland Security Investigations (HSI) used a confidential informant (CI) to make two controlled purchases of methamphetamine from an individual named "Manuel" in Kansas City, Kansas. Law enforcement agents ultimately determined that "Manuel" was Godinez and they arrested him, along with Jose Menera-Alvarez and Gilbert Cano-Bahena, both of whom were involved with Godinez in the distribution of the methamphetamine. During the course of the investigation, law enforcement agents seized ten different quantities of methamphetamine, totaling approximately 1, 505.26 grams. Laboratory testing revealed that these quantities of methamphetamine ranged in purity from 96.1% to 100%. Based upon these purity figures, the net weight of the methamphetamine was estimated to be 1, 479.8 grams.

         B

         On July 25, 2014, a criminal complaint was filed charging Godinez, Menera-Alvarez, and Cano-Bahena with conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and 18 U.S.C. § 2, and possession with the intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), 846, and 18 U.S.C. § 2. The complaint also alleged two separate counts of distribution solely against Godinez. On August 6, 2014, a federal grand jury returned an indictment setting forth the same four charges.

         On January 22, 2015, Godinez appeared before the district court and entered a plea of guilty, without benefit of a plea agreement, to the charges against him. The district court directed the probation office to prepare a presentence investigation report (PSR).

         On April 27, 2015, the probation office submitted the PSR to the district court and the parties. The PSR concluded that Godinez's "offense involv[ed] at least 1.5 kilograms but less than 4.5 kilograms of 'Ice'" (high-grade methamphetamine), and thus assigned Godinez a base offense level of 36, pursuant to U.S.S.G. § 2D1.1. ROA, Vol. 3 at 13. The PSR in turn applied a two-level reduction pursuant to the safety-valve provision of U.S.S.G. § 2D1.1(b)(17), as well as two-level and one-level reductions pursuant to U.S.S.G. § 3E1.1(a) and (b), all of which resulted in a total offense level of 31. That total offense level, combined with the calculated criminal history category of I, resulted in an advisory Guidelines sentencing range of 108 to 135 months. Neither party filed objections to the PSR.

         Godinez did, however, file a sentencing memorandum asking the district court "to sentence him to less than 60 months in the Bureau of Prisons." Id., Vol. 1 at 36. In support of his request, Godinez argued that he was "clearly the LEAST culpable of the three" defendants in the case because the other two were suppliers and Godinez "only had direct or indirect control over 601.57 of the 1505.39 grams of methamphetamine that comprise[d] his drug quantity calculation." Id. at 36, 38. More specifically, Godinez argued that "601.57 grams [we]re a result of actual sales by" him, and that "887.25 grams [we]re a result of the execution of a search warrant on a storage unit that did not belong to [him], " and was not "under his control." Id. at 37.

         Godinez also argued in his sentencing memorandum that "[t]here [we]re more general reasons to consider a variance for [him]." Id. To begin with, he argued that "the methamphetamine guideline lacks empirical support, " id., and "penalize[s] methamphetamine much, much more severely than any other drug, " id. at 41. Second, Godinez argued that "the unique focus on methamphetamine purity in [§] 2D1.1 further undermines the goals of [18 U.S.C. §] 3553(a)." Id. at 42. "For example, " he argued, his "base offense level would have been 32 instead of 36 had the drug quantity been calculated as a mixture." Id. And, he argued, that would have "result[ed] in a sentence range of 70-87 months absent the differential calculation for drug purity." Id. Lastly, Godinez argued that his case was treated differently than other criminal prosecutions in the District of Kansas because the probation office in his case calculated the amount at issue "as 'Ice'" even though the "actual amount [wa]s available." Id. at 45.

         On June 29, 2015, Godinez appeared before the district court for sentencing. The district court, again without objections from either party, adopted the PSR's sentencing calculations. Defense counsel asked the district court to vary downward from the advisory Guidelines sentencing range and impose a term of imprisonment of no greater than 60 months. The district court denied Godinez's request and sentenced him to 108 months' imprisonment, to be followed by a two-year term of supervised release.

         Judgment was entered in the case that same day. Godinez filed a timely notice of appeal and challenges only his sentence.

         II

         Determination of relevant conduct - drug quantity

         In his first issue, Godinez complains that "the district court made no particularized findings on the record about the relevant conduct attributable to [him] individually, but instead held him responsible for the entirety" of the methamphetamine that was seized by law enforcement officials. Aplt. Br. at 8. Because Godinez did not raise this specific argument in the district court, our review is limited to plain error under Federal Rule of Criminal Procedure 52(b).[1]Molina-Martinez v. United States, 136 S.Ct. 1338, 1343 (2016). We "ha[ve] discretion to remedy a forfeited error provided certain conditions are met." Id. The defendant must establish (1) the existence of "an error that has not been intentionally relinquished or abandoned, " (2) "the error [is] plain-that is to say, clear or obvious, " and (3) "the error . . . ha[s] affected the defendant's substantial rights." Id. "Once these three conditions have been met, the court of appeals ...


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