United States District Court, N.D. Indiana, Fort Wayne Division
THERESA L. SPRINGMANN, District Judge.
The Defendant, Javier Madrigal, has pled guilty to distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1). An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the Defendant's sentencing. The Defendant objects to certain portions of the PSR, arguing that the drug quantity calculation is incorrect, that he should not be assessed additional points for maintaining a drug premises, and that he should not be classified as an organizer, leader, manager, or supervisor. In addition to filing objections with the probation officer, the Defendant has submitted a Sentencing Memorandum [ECF No. 76], but he has not requested an evidentiary hearing. In the Response to the Defendant's Sentencing Memorandum [ECF No. 82], the Government asserts that the probation officer correctly calculated the Defendant's offense level and, in doing so, reiterates the arguments it presented to the probation officer in response to the Defendant's objections.
The Defendant was the owner of a restaurant called Chilangos Tacos in Ligonier, Indiana. A confidential source (CS) working with federal drug agents identified the Defendant as a source of large quantities of crystal methamphetamine. The CS indicated that the Defendant's wife or girlfriend, Lizbeth Correa, also worked at the restaurant, and that Juan Sandoval regularly obtained methamphetamine from the Defendant.
Agents then began an investigation that involved using the CS to conduct numerous controlled purchases of crystal methamphetamine from the Defendant. These purchases, as well as payments for a drug debt, took place at Chilangos Tacos. Following the last controlled purchase, on March 21, 2013, the Defendant was arrested and a search warrant was executed at the restaurant. Officers recovered the money from the controlled purchase as well as $31, 000 from a safe, which included buy money from a previous controlled purchase. Two months later, individuals cleaning the former location of Chilangos Tacos as part of the purchase of restaurant equipment discovered a bag of crystal methamphetamine with an actual drug weight of 152.3 grams.
"When calculating a sentence, a district court first calculates the proper range under the sentencing guidelines. It then considers that guideline range in addition to any of the other relevant sentencing factors under 18 U.S.C. § 3553(a) before arriving at the appropriate sentence." United States v. Liddell , 543 F.3d 877, 885 (7th Cir. 2008).
A. Drug Quantity
In determining the amount of drugs involved in the Defendant's offense, the Court may rely on any evidence that has a "sufficient indicia of reliability." United States v. Goodwin, 496 F.3d 636, 643 (7th Cir. 2007). The standard of proof employed is the preponderance of evidence. Id .; see also United States v. Davis, 682 F.3d 596, 612 (7th Cir. 2012) ("At sentencing, a district court need only make findings of fact, such as the quantity of drugs attributable to a defendant, by a preponderance of the evidence.") (citing United States v. Krasinski, 545 F.3d 546, 551 (7th Cir. 2008)); United States v. England, 555 F.3d 616, 622 (7th Cir. 2009) (stating the facts relevant to sentencing should be proved by a preponderance of the evidence). "A proposition proved by a preponderance of the evidence is one that has been shown to be more likely than not." Davis, 682 F.3d at 612.
"Sentencing judges necessarily have discretion to draw conclusions about the testimony given and evidence introduced at sentencing, ' but due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations.'" United States v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010) (quoting England, 555 F.3d at 622). "A district court may rely on facts asserted in the PSR if the PSR is based on sufficiently reliable information." Rollins, 544 F.3d at 838. "The defendant bears the burden of proving that the PSR is inaccurate or unreliable, " and if he offers no evidence to question the PSR's accuracy, the court may rely on it. Id.
There is sufficiently reliable information in the record to conclude that the Defendant is responsible for at least 1.5 kilograms of methamphetamine, which corresponds to a base offense level of 38. The Defendant does not dispute the probation officer's inclusion in the calculation the drug amounts the CS obtained directly from him or from Sandoval. The Defendant's challenge is to the inclusion of the 152.3 grams of methamphetamine that was found at the former location of Chilangos Tacos on May 23, 2013. The Court, finding that it is more likely than not that the drugs were left in the restaurant by the Defendant when he was trafficking drugs from that location, will overrule the objection.
The Defendant is the only drug dealer known to have used the premises. The drugs were the same kind and quality-over 99% pure methamphetamine-as the drugs the Defendant sold to the CS and to Sandoval during the time under investigation. Further, hiding the drugs under the sink between the wall and the pipes was consistent with the CS's observations that the Defendant used various hiding places in the kitchen to store the methamphetamine. It is not unreasonable to conclude that individuals cleaning at the location would uncover contraband that the officers executing the search warrant overlooked. Adding these drugs to the other quantities known to have been provided by the Defendant yields an offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (offenses involving 1.5 kilograms or more of actual methamphetamine corresponds to a base offense level of 38).
The Defendant also objects to the PSR's conclusion that the cash officers recovered from a safe located inside the restaurant where the controlled purchases occurred was drug proceeds. In converting the money to drugs, the probation officer explained that because $9, 000 of buy money was among the $31, 400 in the safe, the DEA stated that this was an indicator that all the money was derived from the drug trade. Instead of depositing money from drug sales in the bank, the Defendant kept it in a safe. Further, there were no receipts of business transactions indicating how the money was earned. The Court finds this reasoning persuasive, but does not determine what ...