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United States v. Huitron-Jimenez

United States District Court, N.D. Indiana, Fort Wayne Division

August 1, 2019

UNITED STATES OF AMERICA
v.
JOSE A. HUITRON-JIMENEZ

          OPINION AND ORDER

          HOLLY A. BRADY, UNITED STATES DISTRICT COURT JUDGE

         The Defendant, Jose A. Huitron-Jimenez, pled guilty to possessing with intent to distribute more than 100 kilograms of marijuana, a violation of 21 U.S.C. § 841(a)(1), and re-entry of a deported alien, a violation of 8 U.S.C. § 1326(a). An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the Defendant's sentencing.

         Count 1 carries a statutory mandatory minimum penalty of five years imprisonment. However, the Defendant meets the criteria set out in 18 U.S.C. § 3553(f)(1)-(5) and § 5C1.2(a)(5) of the Sentencing Guidelines. Therefore, the Court shall sentence him without regard to the statutory minimum. Based on the Defendant's offense level (19) and criminal history category (I), the Guideline range of imprisonment is 30-37 months. With respect to the Guideline range, the Defendant objects to the PSR's failure to allocate to him a reduction for his mitigating role in the offense. The Court conducted an evidentiary hearing and the parties submitted argument through written briefs. The objection is ripe for ruling.

         ANALYSIS

         A. The Offense

         On February 27, 2018, Corporal Jason House of the Indiana State Police (ISP), received a telephone tip that a large shipment of marijuana was being transported inside charcoal bags in a white van. The van was occupied by two Hispanic males and was traveling southbound on Interstate 69. According to the caller, the destination was Marion, Indiana. The caller also provided the van's license plate number.

         About twenty-five minutes after receiving the tip, ISP Master Trooper Gary Shenfield conducted a traffic stop of the van for a moving violation. Neither the Defendant, who was driving, nor his passenger, were able to produce a registration for the vehicle and the Defendant did not have a driver's license. A narcotics certified canine alerted to the presence of narcotics on the passenger's side door. A charcoal bag inside the rear passenger door contained a bundle of green plantlike material. A search warrant was executed, which revealed 561 pounds of marijuana inside the van.

         The Defendant pled guilty to the drug offense on August 7, 2018. In a proffer interview conducted that same day, the Defendant provided additional details. He stated that the charcoal bags in the van he was driving came from Mexico. The Defendant resided with the passenger of van, Yair Guadalupe Burgos Bojorques, who was in charge of the Fort Wayne portion of the drug trafficking operation. Borjorques would tell the Defendant when a load of narcotics was arriving, and the Defendant offered to help. The Defendant advised that he delivered about eight loads of charcoal bags containing marijuana (coal). The loads were delivered to Fort Wayne, Marion, and Columbus, Ohio. Each time, he was to drive the vehicle to a parking lot and leave the keys under the floor mat. The Defendant would wait at a nearby retail store until he received a call that the van was unloaded. He would then return to Fort Wayne. The Defendant expected to be paid $800 for each load he delivered but had not yet received payment. The Defendant was provided with some money from time to time, upon his request, but he did not state the amount he received.

         The Defendant described a stash house in Harlan, Indiana. The marijuana would arrive at the house by semi tractor trailer where it would be put into other vehicles for distribution. The Defendant advised that one of the vehicles, a green Honda Accord, could hold one hundred pounds. The Defendant was unsure how much marijuana was inside the van he was delivering to Marion the day he was stopped. He also stated that he saw about three thousand pounds of marijuana in charcoal bags at the stash house, but he was not present when the semi tractor trailer made the deliveries.

         According to the Defendant, the drug trafficking operation had three drivers who would deliver the coal. The Defendant knew the nickname of the head of the operation in Mexico, and where he is from, but had never seen him or talked to anyone from Mexico. The Defendant talked to Boujorques, who also accompanied him on deliveries.

         B. Mitigating Role Reduction

         The Defendant argues that he should receive a reduction in his offense level because he was a minimal participant. The Defendant asserts that his role was to drive a van pre-loaded with marijuana to a drop off destination. He notes that he was not involved in the purchasing, packaging, loading, unloading, delivery, or sale of the marijuana. Neither was he entrusted with transporting drug proceeds.

         The Guideline provision at issue, § 3B1.2, provides for a 2, 3, or 4-level reduction in the offense level if more than one participant was involved in the offense, U.S.S.G. § 3B1.2, cmt. n.2, and the defendant played a mitigating role. A defendant is considered a minimal participant- entitled to a 4-level reduction-if he is “plainly among the least culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. Among the least culpable are those who lack knowledge or understanding of the scope and structure of the enterprise and of the activities of others. Id. By comparison, a minor role adjustment of 2 points is appropriate if the defendant is “substantially less culpable than the average participant, ” but whose role could not be described as minimal. U.S.S.G. § 3B1.2, cmt. n.3(A) & n.5; United States v. Haynes, 582 F.3d 686, 709 (7th Cir. 2009). If a defendant falls between minimal and minor, a reduction of 3 points is appropriate. U.S.S.G. § 3B1.2.

         The defendant bears the burden of demonstrating, by a preponderance of the evidence, that he is entitled to a role reduction. Haynes, 582 F.3d at 709. The Court must evaluate the Defendant's role “in context of the other participants in the scheme, keeping in mind that a minor [or minimal] player is substantially less culpable than the average participant, not the leaders. United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011) (citing United States v. Sorich, 523 F.3d 702, 717 (7th Cir. 2008)); see also United States v. Gallardo, 497 F.3d 727, 741 (7th Cir. 2007) (holding that when assessing whether a defendant is entitled to a role reduction, his role “should be compared to that of the average member of the conspiracy, not with the leaders”). Drug couriers play an important role in the drug distribution scheme, United States v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004); United States v. Hamzat, 217 F.3d 494, 498 (7th Cir. 2000), but they are neither automatically entitled to nor precluded from receiving a role reduction under ยง ...


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