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United States v. Gallegos-Raymundo

United States District Court, W.D. Washington, Seattle

September 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
EFREN GALLEGOS-RAYMUNDO, Defendant.

          ORDER REGARDING RENEWED MOTION POST-REMAND FOR A SENTENCE REDUCTION

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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).)[1] 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.[2] 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.

         II. BACKGROUND

         Mr. 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.”[3] (Id.)

         In his 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 proceedings.

         A. The 2008 Cocaine Conspiracy Case (CR08-0159JLR)

         Mr. 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.)

         The 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. # 129).)

         On 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.)

         B. The Failure to Appear Case (CR09-0013JLR)

         On 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.)

         C. The 2012 Cocaine Distribution Case (CR13-0023JLR)

         On 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.)

         D. Mr. Gallegos-Raymundo's Sentencing Guidelines Calculation

         United 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 Probation:

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.)

         Probation 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).)

         Probation 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. ...


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