United States District Court, D. Nebraska
JOHN M. GERRARD, District Judge.
The Court has received the revised presentence investigation report (PSR) in this case. Both parties have objected to the PSR (filings 244 and 247), and the defendant has moved for a downward variance. Filing 248.
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. Meza-Galvez made several objections to the PSR. First, he objects 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 ¶ 49 & p. 21; filing 247 at ¶ 2. On the day Meza-Galvez was arrested, the police had gone to an apartment in Omaha to conduct a "knock and talk." Meza-Galvez, who was alone in the apartment at the time, 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. PSR ¶¶ 28-30. Meza-Galvez admitted that there were drugs and a handgun in the apartment, but refused to consent to a search, claiming that the apartment did not belong to him. He stated that he had been staying in the apartment for the past 2 months, and that his sole role in the drug operation was to watch over the methamphetamine for his alleged co-conspirator, Jorge Munoz-Ramon. PSR ¶ 35. The police thereafter obtained a search warrant and discovered, among other things, over 5 pounds of methamphetamine, large amounts of cash, and various drug paraphernalia such as baggies and a digital scale. Additionally, in the kitchen, the police discovered another digital scale, and inside a drawer, a loaded handgun, along with 44 rounds of ammunition. PSR ¶¶ 36-42.
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 Meza-Galvez 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.
The government has demonstrated a connection between the firearm and the 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. At this time, however, the government has not shown that Meza-Galvez personally possessed the firearm. Nor, on the current record, has the government established 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). There is evidence that may support a finding that Meza-Galvez had dominion over the apartment. He had been living there for 2 months and was trusted to watch over large amounts of methamphetamine and money stashed there. But showing that Meza-Galvez had some control over the apartment will not suffice to show constructive possession of the firearm, because Meza-Galvez was neither the sole occupant of the apartment, nor the only person who had dominion or control over it. His co-defendant, Luis Vallejo, ...