FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. No. 2:14-CR-20066-JAR-1)
Brannon, Federal Public Defender, District of Kansas, Topeka,
Kansas, for Defendant-Appellant.
N. Capwell, Assistant United States Attorney, (Barry R.
Grissom, United States Attorney, with her on the brief),
Kansas City, Kansas, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
BRISCOE, Circuit Judge.
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.
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.
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
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).
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
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.
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.
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.
was entered in the case that same day. Godinez filed a timely
notice of appeal and challenges only his sentence.
of relevant conduct - drug quantity
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).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 ...