United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
RESA L. SPRINGMANN, District Judge.
This matter is before the Court in anticipation of Defendant Sergio Alvarez-Arellano's sentencing. The Defendant has pled guilty to knowingly and intentionally possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). He requests that the Court find that he qualifies for the "safety valve" provisions set forth in § 5C1.2 of the United States Sentencing Guidelines and in 18 U.S.C. § 3553(f), and sentence him below the five-year statutory mandatory minimum term of imprisonment required by 21 U.S.C. § 841(b)(1)(B). The Government argues that the Defendant has not met the qualifications of the safety valve because he did not truthfully provide to the Government all information and evidence that he has concerning the cocaine delivery to which he pleaded guilty, and any other activities that were part of the same course of conduct or plan.
A. The Offense
The Defendant's drug conviction arises out of conduct that took place in Fort Wayne on January 17, 2012, and before. In November 2011, Fort Wayne Police Department (FWPD) Officer Darrick Engelman was working undercover in connection with a drug investigation when he was introduced to Francisco Garcia-Hernandez. Officer Engelman made several controlled purchases of cocaine from Garcia-Hernandez over the course of a couple months. On January 17, 2012, Officer Engelman arranged to purchase a kilogram of cocaine from Garcia-Hernandez, but Garcia-Hernandez advised that he only had access to a half kilogram. Officer Engelman agreed to purchase the half kilogram for $15, 750. Officers arrest Garcia-Hernandez after he completed the cocaine transaction with Officer Engelman.
After his arrest, investigators interviewed Garcia-Hernandez and he agreed to cooperate against his supplier. Garcia-Hernandez explained that when Detective Engelman asked to buy a kilogram of cocaine on January 17, Garcia-Hernandez already had a half kilogram of cocaine in his possession. Had he not been arrested, he would have met with his supplier later in the day to get the other half of the kilogram of cocaine that Officer Engelman had requested. During this meeting he also intended to give his supplier money from the half kilogram transaction with Officer Engelman as well as $11, 000 from a previous deal. Although Garcia-Hernandez did not know the supplier's name because they never asked or shared those details with each other, he said that the supplier could be driving a blue or black Lincoln sedan or a black sport utility vehicle (SUV), and identified an image of a Mark IV as the potential vehicle. He identified the supplier as being a Hispanic male, short hair, possibly with a goatee. Garcia-Hernandez had the supplier's telephone number stored in his phone.
At the request of the investigators, Garcia-Hernandez agreed to use his phone to call his supplier and set up a meeting for about an hour later. The conversations between Garcia-Hernandez and his supplier, which were in Spanish, were put on speaker so that a Spanish speaking detective could listen. Garcia-Hernandez and his supplier agreed to meet at the Advanced Auto store located at McKinney and Lafayette in Fort Wayne. During at least one of these conversations, the detective heard the supplier confirm to Garcia-Hernandez that he had the "other half" with him, meaning the other half-kilogram of cocaine, and Garcia-Hernandez confirmed that he had the "papers, " or money that he owed the supplier.
Garcia-Hernandez remained in custody with Officer Engelman and the Spanish-speaking detective while Detective Marc DeShaies and Officer John Drummer went to Advanced Auto. They parked their cars out of sight of the Advanced Auto parking lot, but directly in line with each other. Detective DeShaies was in an unmarked, dark blue, Impala. Officer Drummer's car was a fully-marked squad car with a K-9 unit. Meanwhile, undercover officers waited in the Advanced Auto parking lot in a silver Dodge truck. With officers already in position at the auto parts store, Garcia-Hernandez made another call on speaker phone, and the supplier confirmed that he was a few blocks away from the "place of oils" and that he was expecting Garcia-Hernandez to be there in a few minutes. As the meeting was ready to occur, the supplier called Garcia-Hernandez and said that he was already there at the auto parts store but did not see Garcia-Hernandez. Garcia-Hernandez informed the supplier that he was waiting in a silver Dodge truck. The supplier seemed to get nervous, telling Garcia-Hernandez not to "play" him.
The information from the call was relayed to the officers waiting at the auto parts store, and they requested that the detective ask Garcia-Hernandez what the supplier was driving. Garcia-Hernandez responded that it was possible that he was driving a small, black, truck-like vehicle. Task Force Officer Wagner, who was waiting in the silver truck, had observed the arrival of a black Saturn Vue with a Notre Dame license plate. The Saturn entered the store parking lot from McKinney, passing the undercover truck and proceeding through the parking lot. As the Saturn drove through the parking lot, it slowed down, and TFO Wagner could see that the brake lights kept coming on. TFO Wagner also saw the driver and sole occupant looking around. The driver of the Saturn did not park and enter the store, but exited the parking lot toward the south side of the building.
Detective DeShaies noticed a black Saturn Vue exit an alleyway and drive past his location. The driver of the Saturn noticed the police cars and responded by slowing almost to a stop to look at the officers and then accelerating. Detective Deshaies was able to confirm a Notre Dame license plate and a male Hispanic driver with a physical description consistent with the description provided by Garcia-Hernandez. Detective DeShaies believed that the driver's response to the presence of police vehicles indicated that he was trying to leave the area in a hurry, and Detective DeShaies decided to follow him to gather more information. The driver squealed his tires as he made a quick, hard turn, without signaling. Detective DeShaies followed, going 45 miles per hour in a 30-mile-per-hour zone but failed to gain ground. The driver made another hard, quick turn, without signaling. Detective DeShaies, when he made the same turn, could no longer see the car, but saw a plume of dust coming from a gravel alley that backed up to the rear garages of houses in a residential area. Detective DeShaies turned into the alley in time to see the Saturn turn into a small residential backyard, stopping just a few feet from the back of the house. A fence blocked access to the street in front of the house.
As Detective Deshaies arrived, he observed the Saturn's driver (and sole occupant) reaching over to the right toward the passenger side. The driver, later identified as the Defendant, opened the car door and began to exit as officers approached. Despite being told not to get out of the vehicle, the Defendant continued to exit the Saturn, and he was immediately handcuffed. Officer Drummer arrived at the scene about 20 seconds after Officer Deshaies arrived. Within a few minutes of arriving, Officer Drummer's drug dog performed a drug sniff around the exterior of the Saturn and gave a positive alert at the driver's side door, indicating the presence of illegal drugs in the Saturn. Prior to the dog alert, the Defendant was patted down for weapons, with none found, and officers opened the passenger door to make sure that there were no weapons in that area. The driver-side door had been left open by the Defendant when he exited the Saturn. Detective Deshaies lowered his head and looked under the driver's seat from the outside of the Saturn. He saw a plastic grocery bag with an item inside. Based upon the dog alert, the information about the meeting with Garcia-Herndandez, and the size of the item inside the bag, Detective Deshaies believed the plastic bag contained the half-kilogram of cocaine to be delivered to Garcia Hernandez. The bag did in fact contain approximately a half kilogram of cocaine. Garcia-Hernandez's telephone had been in contact with a cellular telephone located in the glove compartment. The occupants of the home where the Defendant stopped his vehicle stated that they did not know the Defendant.
B. Presentence Investigation Report
On June 28, 2013, a probation officer prepared a Presentence Investigation Report in anticipation of the Defendant's sentencing, which anticipated that the Defendant was eligible for the safety valve. The Government objected to the officer's inclusion of the safety valve in the offense level calculation on grounds that the Defendant had not yet provided a statement regarding his knowledge and involvement in the offense. The Government also expressed concern whether the Defendant's flight from officers on January 17, 2012, prior to his arrest would constitute the use of violence, and provide yet another reason to deny the safety valve. The probation officer revised the report. After the revision, the Defendant's total offense level of 23 and criminal history category of I yield an advisory ...