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United States v. Munoz-Ramon

United States District Court, D. Nebraska

September 17, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE MUNOZ-RAMON, Defendant.

TENTATIVE FINDINGS

JOHN M. GERRARD, District Judge.

The Court has received the revised presentence investigation report (PSR) in this case. The defendant has objected to the PSR and moved for a variance.

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. The defendant has raised several objections to the PSR. He first objects to the PSR's recommendation that he be held accountable for approximately 5 pounds of methamphetamine (actual) that was found in an apartment being used as a stash-house by his co-conspirators. PSR at ¶¶ 27-37, 44. The Court tentatively finds the defendant's objection to be without merit.

The methamphetamine in question was found in an air duct in an Omaha apartment. PSR at ¶ 33. The apartment had been rented by the defendant, and the lease was in his name, although he apparently did not reside there. Instead, the defendant had rented the apartment at the direction of his co-conspirator and supplier, Luis Meza-Galvez, who was using it as a stash-house. PSR at ¶¶ 30, 31, 33, 37. The defendant was observed going to the apartment on several occasions and admitted dropping off money at the apartment to pay drug debts. PSR at ¶ 34.
When he was arrested, the defendant admitted that he had been distributing methamphetamine for 10 weeks, and that Meza-Galvez was his sole supplier. He also admitted that he had received methamphetamine from Meza-Galvez on three occasions, in half-pound and pound quantities, for a total of 2.5 pounds of methamphetamine (mixture). PSR at ¶ 27. The defendant has not objected to the PSR's inclusion of these quantities.[1]
The defendant argues that the methamphetamine found in the apartment should not be attributed to him because the government did not prove he had access to or knew about the drugs. The defendant points to another co-conspirator's testimony that the defendant had access to drugs inside a locked safe in the apartment, and argues that "[i]t makes no sense to keep other drugs hidden from Defendant rather than kept in a locked safe that Defendant ...

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