United States District Court, W.D. Washington, Seattle
ORDER REGARDING RENEWED MOTION POST-REMAND FOR A
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Defendant Efren Gallegos-Raymundo's renewed
motion for a sentence reduction following a remand by the
Ninth Circuit Court of Appeals. (See Renewed Mot.
(Dkt. # 294); 9th Cir. Mem. Op. (Dkt. # 288); 9th Cir.
Mandate (Dkt. # 291).) Mr. Gallegos-Raymundo asks the court to
reduce his combined sentence from 78 months to 69 months.
(Renewed Mot. at 10.) The court has considered the motion,
Plaintiff United States of America's (“the
Government”) response (Resp. (Dkt. # 295)), Mr.
Gallegos-Raymundo's reply (Reply (Dkt. # 296)), the
balance of the record, and the applicable law. For the reasons
stated below, the court GRANTS in part and DENIES in part Mr.
Gallegos-Raymundo's renewed motion. Specifically, the
court GRANTS Mr. Gallegos-Raymundo a sentence reduction, but
from 78 months to 75 months, rather than the requested 78
months to 69 months.
Gallegos-Raymundo is an inmate currently in federal custody,
serving a combined sentence for three separate offenses that
this court previously reduced from 78 months to 75 months.
(See 3/17/15 Order (Dkt. # 275).) The Ninth Circuit
vacated this court's ruling reducing Mr.
Gallegos-Raymundo's sentence because the court did not
“provide any explanation for its decision.” (9th
Cir. Mem. Op. at 4.) The Ninth Circuit remanded the matter so
that this court could “provide the requisite
explanation” and address “its consideration of
the [18 U.S.C.] § 3553(a) factors and any specific
arguments raised by the parties.” (Id.)
renewed motion, Mr. Gallegos-Raymundo requests that the court
grant him a larger sentence reduction on remand-reducing his
term of imprisonment from 78 to 69 months. (Renewed Mot. at
10.) The government agrees that Mr. Gallegos-Raymundo is
eligible for a sentence reduction, but recommends that the
court re-impose the same 75-month sentence-representing only
a three-month reduction. (Resp. at 2.) Before addressing the
substance of Mr. Gallegos-Raymundo's renewed motion, the
court recounts the pertinent background of Mr.
Gallegos-Raymundo's criminal cases and sentencing
The 2008 Cocaine Conspiracy Case (CR08-0159JLR)
Gallegos-Raymundo was one of seven defendants in an
indictment the Government filed in the Western District of
Washington on May 7, 2008. (Ind. (Dkt. # 1).) The indictment
alleged a conspiracy to distribute cocaine and
methamphetamine. (Id.) On May 15, 2008, the court
ordered Mr. Gallegos-Raymundo to be released pending trial
upon his agreement to execute an appearance bond. (5/15/08
Min. Entry (Dkt. # 47).) Mr. Gallegos-Raymundo executed the
bond in open court promising to appear as required for court
hearings and to abide by all other conditions of his release.
(See App. Bond (Dkt. # 49).) The bond notified Mr.
Gallegos-Raymundo that he was subject to additional
punishment of up to ten years of imprisonment if he committed
a new felony while on release. (Id.)
court ordered all parties, including Mr. Gallegos-Raymundo,
to attend a pretrial status conference on September 9, 2008.
(See 8/26/08 Dkt. Entry.) Mr. Gallegos-Raymundo
failed to appear at the pretrial conference, and the court
issued an arrest warrant for him. (9/9/08 Min. Entry (Dkt. #
October 19, 2012, local law enforcement arrested Mr.
Gallegos-Raymundo. (PSR (Dkt. # 240) ¶ 4.) On January
28, 2013, Mr. Gallegos-Raymundo entered a guilty plea to
Count 1 of the Superseding Indictment-conspiracy to
distribute cocaine. (Sup. Ind. (Dkt. # 55); 1/28/17 Min.
Entry (Dkt. # 233).) As part of his guilty plea, Mr.
Gallegos-Raymundo admitted that in furtherance of the 2008
cocaine conspiracy he personally received at least 2
kilograms of cocaine intended for redistribution. (Plea
Agreement (Dkt. # 235) ¶ 9.d.)
The Failure to Appear Case (CR09-0013JLR)
January 7, 2009, while still a fugitive, Mr.
Gallegos-Raymundo was indicted in a second case and charged
with the separate federal felony offense of failure to appear
after pre-trial release, in violation of 18 U.S.C. §
3146(a)(1), arising from his failure to appear at the
September 9, 2008, pretrial hearing in the drug conspiracy
case. (Case No. CR09-0013JLR, Ind. (Dkt. # 1).) Following his
arrest on October 19, 2012, Mr. Gallegos-Raymundo pleaded
guilty to this offense. (Case No. CR09-0013JLR, 1/12/17 Min.
Entry (Dkt. # 17); Plea Agreement (Dkt # 19); Ord. of Accept.
(Dkt. # 21).) As part of his guilty plea, he admitted that
(1) the court notified him of the pretrial hearing in the
drug conspiracy case, (2) he understood that he was obligated
to appear, and (3) he intentionally failed to do so. (Case
No. CR09-0013JLR, Plea Agreement ¶ 9.c.-d.)
The 2012 Cocaine Distribution Case (CR13-0023JLR)
January 28, 2013, Mr. Gallegos-Raymundo also pleaded guilty
to a felony information charging a separate offense involving
the distribution of cocaine. (Case No. 12-0023JLR, Felony
Inform. (Dkt. # 1); 1/12/13 Min. Entry (Dkt. # 6); Plea
Agreement (Dkt. # 8); Ord. of Accept. (Dkt. # 10).) As a part
of his guilty plea, Mr. Gallegos-Raymundo admitted that on
October 19, 2012, he distributed approximately nine ounces
(258.4 gross grams) of cocaine to a Seattle Police Department
(“SPD”) confidential informant and that another
394 gross grams of cocaine were found in the vehicle in which
he arrived to make the delivery. (Case No. CR09-0013JLR, Plea
Agreement ¶ 9.c.-d.)
Mr. Gallegos-Raymundo's Sentencing Guidelines
States Probation prepared a single presentence report for all
three convictions, which were combined into one sentencing
range. (PSR (Dkt. # 240) ¶¶ 42-54.) As explained by
This case involved multiple counts of conviction. Conspiracy
to Distribute Cocaine (2:08CR00159JLR-004) and Distribution
of Cocaine (2:13CR00023JLR-001) shall be grouped together
into a single group because the offense level is determined
largely on the basis of the total quantity of substance
involved. USSG § 3D1.2(d). The Court must further
determine whether grouping applies for the drug counts and
the Failure to Appear. Because the conduct for Failure to
Appear is treated as an adjustment to the drug counts, all
counts are grouped. USSG § 3D1.2(c). Lastly, the
guideline that generates the highest offense level is
applied. USSG § 3D1.3(a). In this case, the highest
offense level is derived from the applicable guideline
Conspiracy to Distribute Cocaine, which is USSG § 2D1.1.
(Id. ¶ 42.)
concluded that Mr. Gallegos-Raymundo's base offense level
was 28 because the two combined drug offenses involved 2.65
kilograms of cocaine. (Id. ¶ 44 (citing the
former version of the United States Sentencing Guidelines
(“USSG”) § 2D1.1(c)(6), which was applicable
at the time, indicating that for offenses involving at least
2 kilograms, but less than 3.5 kilograms of cocaine, the base
level offense is 28).)
awarded Mr. Gallegos-Raymundo a two-level reduction under
USSG § 5C1.2-known as the safety valve provision-because
he met all the criteria. (Id. ¶ 45.) The
application of this provision lowered his offense level to
26. (Id.) Probation then added two levels to the
underlying drug offense, which was warranted due to his
conviction for failure to appear at the pretrial hearing in
the drug conspiracy case. (Id. ...