United States District Court, D. Nebraska
JOHN M. GERRARD, District Judge.
The Court has received the revised presentence investigation report (PSR) in this case. The defendant, Luis Vallejo, has objected to the PSR (filing 222) and moved for a downward departure. Filings 223 and 224. The Court has also considered a statement by Vallejo's counsel (filing 189) and a letter from Vallejo. Filing 242. The Court will consider the last two filings when weighing the § 3553(a) factors at sentencing, but neither requires any further action from the Court at this time.
IT IS ORDERED:
1. The Court will consult and follow the Federal Sentencing Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220 (2005), and subsequent cases. In this regard, the Court gives notice that, unless otherwise ordered, it will:
(a) give the advisory Guidelines respectful consideration within the context of each individual case and will filter the Guidelines' advice through the 18 U.S.C. § 3553(a) factors, but will not afford the Guidelines any particular or "substantial" weight;
(b) resolve all factual disputes relevant to sentencing by the greater weight of the evidence and without the aid of a jury;
(c) impose upon the United States the burden of proof on all Guidelines enhancements;
(d) impose upon the defendant the burden of proof on all Guidelines mitigators;
(e) depart from the advisory Guidelines, if appropriate, using pre- Booker departure theory; and
(f) in cases where a departure using pre- Booker departure theory is not warranted, deviate or vary from the Guidelines when there is a principled reason justifying a sentence different than that called for by application of the advisory Guidelines, again without affording the Guidelines any particular or "substantial" weight.
2. Vallejo objects (filing 222) to the PSR's inclusion of a two-level enhancement for possession of a firearm in connection with a drug offense. U.S.S.G. § 2D1.1(b)(1); PSR ¶¶ 34, 39, 47 & p. 22. On the day Vallejo was arrested, the police had gone to an apartment in Omaha to conduct a "knock and talk." One of Vallejo's co-conspirators, Luis Meza-Galvez, answered the door and allowed the police inside, whereupon they observed a large amount of cash on a table and a notebook that they believed to be a drug ledger. Meza-Galvez admitted that there were drugs in the apartment, but refused to consent to a search. Around that time, Vallejo arrived at the apartment and was detained. PSR ¶ 21. The police thereafter obtained a search warrant and discovered approximately 2, 300 grams of actual methamphetamine in an air vent, and 87 grams of actual methamphetamine (along with $680, a digital scale, and plastic baggies) in a bedroom safe, as well as the $4, 772 they had previously observed on the table. PSR ¶¶ 20-21, 34. In a bedroom of the apartment, they found a suitcase which contained $4, 900 in cash and a hotel registration card in Vallejo's name. Finally, in the kitchen, the police discovered another digital scale, and inside a cupboard, a loaded handgun, along with 44 rounds of ammunition. PSR ¶ 34 & p. 22.
For § 2D1.1(b)(1) to apply, the government must prove by a preponderance of the evidence that (1) the weapon was possessed; and (2) it was not clearly improbable that the weapon was connected to the drug offense. United States v. Garcia, 703 F.3d 471, 476 (8th Cir. 2013). Actual or constructive possession will suffice. United States v. Dunn, 723 F.3d 919, 929 (8th Cir. 2013). So, the government must show that Vallejo exercised ownership, dominion, or control over either the firearm or the premises in which it was found. Id. "If possession is established, the enhancement applies if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.'" Id. (quoting U.S.S.G. § 2D1.1(b)(1), cmt. n.11.A). The government proves a connection between the firearm and the offense by showing the existence of a temporal and spatial relation between the weapon, the drug trafficking activity, and the defendant. United States v. Young, 689 F.3d 941, 946 (8th Cir. 2012). Although the mere presence of a firearm is not enough, the government need not show that the defendant used or even touched the firearm. Garcia, 703 F.3d at 476.
There is no dispute that the government has demonstrated a connection between the firearm and the present drug conspiracy. The firearm was found in the same apartment where large amounts of cash and methamphetamine were being stashed. See, e.g., id. at 477. And the firearm, which was loaded, was stored in a readily accessible location such that it could be used to protect that stash. See Young, 689 F.3d at 946. However, the government has, thus far, not established that Vallejo possessed the firearm. First, there is no evidence that Vallejo actually possessed the firearm, nor that he exerted dominion or control over it. The firearm was found in a kitchen cupboard, separate from Vallejo's few personal belongings, which were found in a bedroom. Compare, e.g., United States v. Payne, 81 F.3d 759 (8th Cir. 1996). Nor is there any evidence that Vallejo knew the weapon was there. And as the Court explains below, Vallejo was not the sole occupant of the apartment.
The government has also, thus far, failed to establish constructive possession. Constructive possession of a firearm is shown when a person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself. United States v. Chantharath, 705 F.3d 295, 304 (8th Cir. 2013). While there is no evidence that Vallejo owned, controlled, or exercised dominion over the firearm itself, there is evidence that might support a finding that Vallejo had dominion or control over the apartment. Another alleged coconspirator,  Jorge Munoz-Ramon, told police that he had rented the apartment at the request of Meza-Galvez, and that the apartment was intended for Vallejo's use. PSR ¶ 30. And Vallejo admitted that he had been staying at the apartment for approximately 8 to 10 days. PSR ¶ 33. Additionally, Vallejo was trusted to stay alone in the apartment with large amounts of methamphetamine and ...