United States v. Valdez (77 F. Supp. 3d 1115, 2014)

United States District Court for the District of New Mexico 2014-12-15

Crimes and Criminal Procedure Judiciary and Judicial Procedure

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant Nestor Valdez’ Sentencing Memorandum, filed September 24, 2013 (Doc. 72)(“Valdez Memo.”); and (ii) the United States’ Objection to the Pre-sentence Report and Response to Defendants [sic] Sentencing Memorandum, filed October 3, 2013 (Doc. 78)(“U.S. Memo.”). The Court held a sentencing hearing on October 4, 2013. The primary issues are: (i) whether the Court should apply adjustments for being a minor participant in criminal activity, possessing a dangerous weapon, both, or neither; and (ii) whether the Court should vary Defendant Nestor Valdez’ United States Sentencing Guidelines (“U.S.S.G.”) sentencing range downward to counteract the effects of the career-offender guideline. First, the Court agrees with Plaintiff United States of America that Valdez qualifies for the gun-possession enhancement and does not qualify for the minor-participant reduction, even though the Court’s subsequent application of the career-offender enhancement renders these adjustments moot. Second, after carefully considering the factors enumerated in § 3553(a), the Court will vary Valdez’ sentence downward somewhat to partially, but not totally, counteract the effects of the career-offender guideline; the Court concludes that strict application of the career-offender guideline would lead to “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Thus, although the Guidelines indicate a sentencing range of 188-235 months, the Court will impose a sentence of 96-months imprisonment, as well as four years of supervised release.

FACTUAL BACKGROUND

The Court takes its facts from the Pre-sentence Investigation Report, disclosed September 6, 2013 (“PSR”), that the United States Probation Office (“USPO”) prepared. On May 2, 2011, officers with the New Mexico State Police Department (“NMSPD”) seized 298.1 grams of methamphetamine from an individual in the area around San Rafael, New Mexico and Grants, New Mexico. See PSR ¶ 10, at 5. The next day, NMSPD officers debriefed the individual from whom the drugs were seized and recruited him to be a confidential source (“CS1”). See PSR ¶ 11, at 5. CS1 indicated that he was traveling from Phoenix, Arizona to San Rafael to deliver methamphetamine to five individuals, including co-Defendant Paul Barker. See PSR ¶ 11, at 5. The NMSPD orchestrated a controlled delivery from CS1 to Barker; according to CS1, Barker was scheduled to receive 226.8. grams of methamphetamine from him, but, during a telephone with CS1 preceding the delivery, Barker increased the amount to 283.5 grams. See PSR ¶ 11, at 6. CS1 met with Barker and delivered the drugs in exchange for $11,600.00 in cash; Barker was arrested shortly afterward. See PSR ¶ 11, at 6.

On May 9, 2011, law enforcement agents used a second confidential source (“CS2”) to purchase heroin from an unknown dealer near San Rafael. PSR ¶ 12, at 6. Upon arrival at the arranged location, two individuals — later identified as Valdez and co-Defendant Leena Martinez — approached CS2. See PSR ¶ 12, at 6. CS2 advised the two that he was looking to buy heroin for his brother, and, in response, Valdez reached into his pants pocket and produced several small bindles of heroin. See PSR ¶ 12, at 6. Valdez gave 0.7 gross grams — later determined to be 0.5 net grams- — of heroin to CS2 in exchange for $40.00 in cash. See PSR ¶ 12, at 6. The next day, an undercover officer arranged another drug purchase from Valdez and Martinez, in which the officer paid $350.00 for 5.2 grams of heroin. See PSR ¶ 13, at 6. On May 14, 2012, an undercover officer arranged a purchase of 1.9 grams of methamphetamine for $350.00; on that occasion, Valdez left the area of the drug deal to meet with his source of supply. See PSR ¶ 14, at 6.

■ On May 22, 2012, an undercover officer negotiated with Valdez and Martinez for the purchase of 2.2 grams of methamphetamine in exchange for $300.00. See PSR ¶ 15, at 6. Shortly after agreeing on the price, a white pickup truck arrived, and Martinez told the undercover officer that Barker was her and Valdez’ source of supply. See PSR ¶ 15, at 6. Officers identified the individual driving the truck as Barker. See PSR ¶ 15, at 6. The undercover officer gave the cash to Martinez to give to Barker, and Valdez retrieved a bag containing the methamphetamine from Barker, which he then handed to the undercover officer. See PSR ¶ 15, at 6. The undercover officer conducted similar transactions — with Barker participating indirectly in the transaction — on May 31, 2012, and June 12, 2012, for 2.7 grams and 1.4 grams of methamphetamine, respectively. See PSR ¶¶ 16-17, at 7.

During a purchase on July 3, 2012, Valdez advised the undercover officer that Barker would no longer be doing business with Valdez and Martinez; Valdez told the undercover officer that Barker was angry that the undercover officer was attempting to make contact with him. See PSR ¶ 18, at 7. Shortly afterward, a green Hyundai approached, and a female later identified as Marcela Camacho served as the source of supply for the transaction, providing 4.4 grams of methamphetamine in exchange for $560.00. See PSR ¶ 18, at 7. On Am gust 7, 2012, undercover officers purchased 2.1 grams of heroin from Valdez and Martinez in exchange for $100.00; no source of supply was involved in the transaction. See PSR ¶ 19, at 7.

On October 7, 2012, Valdez and Martinez were stopped in a motor vehicle for a routine traffic stop. See PSR ¶20, at 7. After the officer determined that the vehicle was registered to another person and neither occupant had any documentation regarding the vehicle, the officer sought and obtained, consent to conduct a perimeter search of the vehicle using a drug-sniffing canine. See PSR ¶20, at 7-8. The canine alerted, and the subsequent search revealed a glass pipe with methamphetamine residue in it, several small baggies of marijuana, a clear baggie containing miscellaneous pills, and a .22-caliber pistol containing eight live rounds. See PSR ¶ 20, at 8. The firearm was manufactured in Accokeek, Maryland, meaning that it had affected interstate commerce to get to New Mexico. See PSR ¶ 25, at 9. Officers arranged two more buys with Valdez and Martinez, on December 17, 2012, and January 11, 2013, for 5.3 grams and 1.5 grams of methamphetamine, respectively. See PSR ¶¶ 21-22, at 8. No source of supply was present at either meeting. See PSR ¶¶ 21-22, at 8.

On March 5, 2013, Drug Enforcement Administration (“DEA”) agents obtained and executed arrest warrants on Valdez and Martinez. PSR ¶ 23, at 8. After being informed of and waiving his rights under Miranda v. Arizona,, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Valdez admitted that he dealt methamphetamine and heroin, and that he “usually sells up to ... $100 worth.” PSR ¶ 23, at 8. He told investigators that he profits roughly $20.00 for every $100.00 he sells, and that he and Martinez are both heroin addicts and use heroin twice daily. See PSR ¶ 23, at 8. Valdez stated that Barker had supplied him with methamphetamine in the past, but that they have not conducted business together in the past several months. See PSR ¶ 23, at 8. Four days later, while at the Torrance County (N.M.) Correctional Facility, Valdez was discovered to be in possession of heroin and cocaine, which he had smuggled into the jail in his rectum. See PSR ¶ 24, at 8.

Valdez and Martinez “appear to be low-level drug dealers, selling narcotics for profit to support their own drug habit.” PSR ¶26, at 9. Valdez and Martinez are considered low-level drug dealers, while Barker is a mid-level drug dealer. See PSR ¶ 26, at 9. In total, Valdez and Martinez are jointly responsible for the sale of 19.4 grams of methamphetamine and 7.8 grams of heroin. See PSR ¶ 26, at 9.

Valdez’ criminal history includes sentences for seven prior crimes: (i) an attempted burglary committed in 1983, at age nineteen, for which he received a sentence of three-years probation; (ii) a driving-while-intoxicated offense committed in 1988, at age twenty, for which he received one day of jail time; (in) a possession-of-cocaine offense committed in 1989, at age twenty-five, for which he was sentenced to twenty-four-months imprisonment; (iv) a petty larceny committed in 1993, at age twenty-nine, for which he was sentenced to one day in jail; (v) trafficking-cocaine and unlawful-dealing-in-food-coupons offenses committed in 1993, at age twenty-nine, for which he was sentenced to four-years imprisonment; (vi) a distribution-of-marijuana offense committed in 2001, at age thirty-seven, for which he received eighteen-months imprisonment and one-year parole; and (vii) criminal trespass and larceny committed in 2007, at age forty-two, for which he received sixty-six months imprisonment and one-year parole. See PSR ¶¶ 45-51, at 12-14. Valdez was married to the same woman, Stella Valdez, for thirty years, and the couple have three adult children with whom Valdez stays in regular contact. See PSR ¶ 66, at 17.

PROCEDURAL BACKGROUND

Valdez pleaded guilty to conspiracy to possess with intent to sell 5 grams or more of methamphetamine pursuant to 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B), and distribution of methamphetamine and aiding and abetting pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). The former conviction carries a mandatory minimum of five years and a maximum sentence of forty years; the latter carries a maximum sentence of twenty years and no mandatory minimum. Because it applies the career-offender guideline, the USPO calculates a final offense level of 31 and a criminal history category of VI, but, without the career-offender enhancement, the USPO states that Valdez’ offense level would be 21 and his criminal history category would be IV, based on nine criminal-history points. See PSR ¶¶ 32-42, at 10-11; id. ¶¶ 52-54, at 14. The USPO asserts that, without the career-offender guideline, his base offense level is 24, see PSR ¶ 32, at 10 (citing U.S.S.G. § 2D1.1), he qualifies for a 2-level reduction for being a “minor participant” in the criminal activity, see PSR ¶ 36, at 11 (citing U.S.S.G. § 3B1.2(b)), he also qualifies for a 2-level enhancement for obstruction of justice, see PSR ¶ 37, at 11 (citing U.S.S.G. § 3C1.1), and, last, he merits a 3-level reduction for acceptance of responsibility, see PSR ¶¶ 40-41, at 11. The USPO asserts, however, that under the career-offender guideline, his offense level starts at 34, and is reduced only by the 3-level reduction for acceptance of responsibility. See PSR ¶¶ 39^42, at 11. The USPO asserts that Valdez is a career offender, because he has received two prior felony convictions for either crimes of violence or controlled substance violations — namely, his 1994 cocaine-trafficking conviction and his 2001 distribution-of-marijuana conviction. See PSR ¶ 39, at 11. With the career-offender enhancement, Valdez’ suggested sentencing range is 188-235 months; without the career-offender enhancement, his sentencing range would be 57-71 months. See U.S.S.G. Ch. 5, Pt. A.

Valdez filed his sentencing memorandum on September 24, 2013, ultimately requesting a sentence at the statutory minimum of 60 months. See Valdez Memo. ¶ B, at 3. The Valdez Memo, is short. Valdez does not contest any part of the PSR except for the USPO’s statement that it has not identified any factors for potential departure or variance. See Valdez Memo. ¶ 1, at 1 (citing PSR ¶¶ 93-94, at 21). Valdez notes that the PSR states that he “ ‘appear[s] to be [a] low-level drug dealer[ ], selling narcotics for profit to support [his] drug habit.’ ” Valdez Memo. ¶ 2, at 1 (quoting PSR 1126, at 9). He asserts that Eric H. Holder, Jr., Attorney General of the United States, has discussed “[t]he concerns of sending garden variety drug addicts to long terms in prison,” Valdez Memo. ¶ 4, at 2, and that, in his most recent prior conviction in 2007, the state district court took into account his drug addiction and sentenced him to 66-months imprisonment with fifty-percent credit for good time, see Valdez Memo. ¶ 3, at 1.

Primarily, Valdez asks the Court not to deem him a career offender under U.S.S.G. § 4B1.1. See Valdez Memo. ¶¶ 5-7, at 2-3. He argues that he, as a street-level drug dealer, is “low-hanging fruit for law enforcement.” Valdez Memo. ¶ 5, at 2 (quoting United States v. Vasquez, No. CR 09-0259 JG, 2010 WL 1257359, at *3 (E.D.N.Y. Mar. 30, 2010)). See Valdez Memo. ¶ 7, at 3. He cites, and attaches as an exhibit, an opinion that the Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa, wrote in which Valdez asserts that Judge Bennett varied substantially below the indicated Guidelines range “because of the inequities of the career offender provisions.” Valdez Memo. ¶ 6, at 3 (citing United States v. Newhouse, 919 F.Supp.2d 955 (N.D.Iowa 2013) (Bennett, J.)(attached as Doc. 72-1)). Last, Valdez “asserts that a sixty-month sentence, the statutory minimum, would suffice to satisfy the relevant sentencing considerations in his case.” Valdez Memo. ¶ 7, at 3.

The United States submitted the U.S. Memo, less than two weeks later, both responding to the Valdez Memo, and making its own objection to the PSR. See U.S. Memo, at 1. It objects to the USPO’s suggestion that the Court should apply the mitigating-role reduction for being a minor participant in criminal activity. See U.S. Memo, at 2-3. It asserts that the parties did not agree to such a reduction in the plea agreement and that Valdez’ “statements to the undercover officer during the controlled buys that he received the drugs from Barker do not prove that he was a minor participant.” U.S. Memo, at 2. It concedes that Valdez’ relationship with Barker is “unclear,” but that Valdez was always the undercover officer’s point of contact to purchase drugs. U.S. Memo, at 2. It asserts that Valdez always had drugs on his person and that he was the one who negotiated the price of the drugs to be sold. See U.S. Memo, at 2. It also notes that Valdez was carrying a firearm at the time of his arrest, despite being a convicted felon, and the United States requests a 2-level enhancement on this ground. See U.S. Memo, at 2.

In terms of responding to the Valdez Memo., the United States argues that, “[t]o not acknowledge his criminal history under the Career Offender portion of the Guidelines would not- constitute a just sentence in this case.” U.S. Memo, at 4. It asks, specifically, for the Court to impose a sentence above the range that Valdez would receive if the career-offender guideline did not exist, but below the range that the career-offender guideline indicates. See U.S. Memo, at 5. The United States asserts that a defendant’s Guidelines range is, itself, a sentencing factor under 18 U.S.C. § 3558(a), and that district courts must “ ‘begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.’ ” U.S. Memo. at 5 (quoting Gall v. United States, 552 U.S. 38, 50 n. 6, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The United States posits that Valdez’ “criminal history may be reasonably characterized as a shockingly long chain of criminal conduct which demonstrates a constant and total disregard for the law, disregard for the rights and safety of others, and an astonishing dedication to a life of crime.” U.S. Memo, at 5. It also notes that, every time Valdez “received a significant sentence, he violated his sentence and his parole or probation was revoked.” U.S. Memo at 5-6. The United States ultimately requests that the Court impose a sentence of 120 months, which it says the § 3553(a) factors justify, and is less than Valdez would receive upon conviction following a trial. See U.S. Memo, at 6.

Valdez replied to the U.S. Memo, the next day. See Reply to United States’ Objection to the Resentence [sic] Report and Response to Defendant’s Sentencing Memorandum [Doc 78], filed October 4, 2013 (Doc. 79)(“Reply”). The Reply addresses the United States’ objections to the PSR — that the Court should remove the 2-level minor-participant reduction and impose a 2-level gun-possession enhancement — in sequence. Valdez appears to concede that the minor-participant enhancement is appropriate and asks the Court to depart downward on the ground that Valdez is a drug addict who deals only to fund his own habit. See Reply ¶¶ 2-5, at 1-2. The Court cannot tell if Valdez believes that the minor-participant reduction is factually inapplicable, see Reply ¶¶ 2-3, at 1-2, but he acknowledges that, even if the reduction applies, the career-offender enhancement will render the minor-participant adjustment meaningless, see Reply ¶4, at 2 (“[T]he Tenth Circuit held that a career offender designation trumps any minor role adjustment.... [The] Commission did not contemplate any minor role adjustment for ... career offenders even if their role was minor.”). He thus asks that the Court, instead of applying the minor-participant reduction, grant “a downward variance in light of defendant’s chronic addi[c]tion, low level drug convictions, sentences contemplated for equally or greater involved participants, and other sentencing considerations.” Reply ¶ 5, at 2. Valdez asserts that, in United States v. Burgos, 518 Fed. Appx. 728 (11th Cir.2013) (unpublished), the United States Court of Appeals for the Eleventh Circuit “granted a 30 month downward variance because the participants were similarly situated but only defendant was facing a career-offender enhancement. The court found unwarranted risk of sentencing disparities between relatively equally situated participants. A variance was upheld as a reasonable exercise of the court’s discretion.” Reply ¶ 5, at 2.

Valdez next addresses the United States’ argument that the Court should apply a 2-level gun-possession enhancement. See Reply ¶¶ 6-8, at 2-4. Valdez argues that the enhancement does not apply, because the weapon lacked physical proximity to the drug offense, which Valdez says Tenth Circuit law requires. See Reply ¶ 7, at 3 (citing United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993); United States v. Smith, 131 F.3d 1392 (10th Cir.1997); United States v. Roberts, 980 F.2d 645, 647 (10th Cir.1992); United States v. Vaziri, 164 F.3d 556, 568 (10th Cir.1999)). Valdez contends that the test requires the United States to prove that he possessed the gun — and possession can be proven by mere proximity to the offense — and that, even if the United States proves proximity, he can still avoid the enhancement by showing that “it is clearly improbable that the weapon was connected with the offense.” Reply ¶ 7, at 3 (quoting U.S.S.G. § 2D1.1 cmt. 3)(inter-nal quotation marks omitted). Valdez asserts that, although the gun was discovered, during the traffic stop, in proximity to some illegal drugs, that small quantity of drugs was for personal use. See Reply ¶ 8, at 3-4. He notes that the quantity of drugs discovered at the traffic stop is so small that the USPO does not even include it in determining the aggregate drug-weight totals. See Reply ¶ 8, at 3^1 (citing PSR ¶ 20, at 8). See also note 1, supra, at 1118.

The Court held a sentencing hearing on October 4, 2013 — the same day that Valdez filed his Reply. See Transcript of Hearing (taken October 4, 2013)(“Tr.”). The hearing contained an extensive discussion whether Valdez qualifies for the minor-participant reduction, and even more about whether he deserves the gun-possession enhancement, despite that the parties, the Court, and the USPO all eventually agreed that the career-offender enhancement rendered those adjustments moot. See Tr. at 10:12-24 (Court, Probation Officer, Aar-ons). The United States elaborated on its argument that Valdez was not a minor participant: it opines that the USPO applies the adjustment based on Barker controlling Valdez’ actions, which the United States asserts is not true. See Tr. at 4:17-5:12 (Henderson). The United States asserts that Valdez was merely a buyer of Barker’s, that Valdez negotiated and conducted all of this own transactions, and that Valdez terminated the relationship with Barker when Valdez found “a new source of supply that has a better product than Barker.” Tr. at 5:9-10 (Henderson). The United States asserts that only three people have been charged in connection with Valdez’ criminal activity, but it suspected that there was a larger organization that extends into Mexico. See Tr. at 6:5-23 (Henderson). Valdez responded that Barker was the significant dealer, that Barker used Valdez for “protection” — presumably meaning removal from the hand-to-hand deal, though it is not clear whether this word refers to protection from law enforcement or protection from robbery— and that Barker was the one who terminated the relationship with Valdez. See Tr. at 9:10-21 (Aarons).

The parties briefly discussed the career-offender enhancement, with Valdez conceding that the enhancement applies to him. See Tr. at 39:11-40:3 (Aarons). He asserts that, while he was surprised that a 1994 conviction would count as a qualifying conviction for career-offender purposes, “it’s just under the 15-year rule[ ] ... by a matter of months, because he was — he violated [his parole].” Tr. at 40:1-2 (Aarons). Valdez continued to argue, throughout the hearing, that he' was a low-level dealer who dealt drugs only to support his personal drug addiction; he also pointed out repeatedly that he has no violent history whatever in his criminal history.

The Court then imposed a sentence of 96-months imprisonment, to be followed by four years of supervised release.

We often begin with the guidelines, and that may well be an appropriate place to begin here. I guess when I looked at using the ... guidelines as the base it seemed to me that there were about eight factors that put downward pressure on this sentence. One is the nature of the defendant. In this case being a street-level dealer.... We’re not dealing with someone that’s at the top of ...' the organization.... [W]hile I haven’t given a minor role under the ... guidelines, I do think that we can recognize what his role is in the drug world and also within the organization he played. I don’t think he’s as serious a person as Barker. I think he is more serious than Martinez, but hot so greatly so that I can’t recognize that he’s not the ... most significant drug dealer in the community or even within the organization.

The lack of criminal behavior early on there was some property crimes, but as of late it seems to be drug crimes.

I think also the fact that he’s barely a career offender counsels for some downward pressure here.

The fact that he’s an addict is one of the over[whel]ming factors here because when I’m dealing with an addict ... [and] I have to punish the crime, but I have to be careful that I don’t use incarceration in any way to — for rehabilitation purposes and that I can use rehabih itation purposes and supervised release to achieve those purposes.

There are some good qualities to Mr. V[aldez], He does seem to have been able to work and have a ... family and do some good things in life, but this addiction just overwhelmed him. Also when I look at the nature of ... the career offender [prior convictions] here, the offenses, we’re not dealing with large amounts, so it does support and substantiate that we’re dealing with relatively minor offenses throughout his life. And there doesn’t seem and that’s not surprising given these are state offenses, that the ... predicate acts here that he hasn’t had any substantial treatment. And so I think those are all factors that put downward pressure on it.

So if I start with the — with the guideline range of [ ]88 months and work downward from there I think we’re going to get to the range that both the Government and the defendant are proposing.

So I back that back down to maybe go from ... 25 down to a 23, which puts you at a 70 to 87, but I do think that there needs to be some reflection here of the career offender. It may not be and I don’t think it should be as much as what the guidelines suggest, but backing that back up to a range of 24, 77 to 96 range, I think something the at the high end of that range is appropriate here.

And so I’m going to sentence Mr. Valdez to 96 months, which I think reflects well the seriousness of the offense. I think it promote respect for the law, because I have tried very hard to reflect all the relevant factors in the sentence. I think it provides a more just punishment, particularly given that we’re dealing with somebody who is struggling with addiction. I think it affords adequate deterrence, both at a specific and a general level. And it protects the ' public.-

While it is a tremendous variance, we’re dealing almost with a 50-percent cut below the guideline range, I’ve tried to justify this as much as I can, and I think it avoids unwarranted sentencing disparity among defendants with similar records who have been found guilty of similar conduct. And because I am able to use supervised release when you get out of prison, I think .it will provide you with some of the education training and care you simply haven’t had at this stage of your life to overcome these drug problems

Tr. at 51:14-53:8 (Court); id. at 55:20-56:18 (Court).

LAW REGARDING THE GUIDELINES

In United States v. Booker, the Supreme Court severed the mandatory provisions from the Federal Sentencing Act, thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Act intact, including 18 U.S.C. § 3553: “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary” to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner....

18 U.S.C. § 3553(a)(2)(A)-(D).

[A] defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

18 U.S.C. § 3551. To achieve these purposes, 18 U.S.C. § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the nature of the offense and the defendant’s character; (in) the available sentences; (iv) a policy favoring uniformity in sentences for defendants who commit similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

Although the Guidelines are no longer mandatory, both the Supreme Court and the United States Court of Appeals for the Tenth Circuit have clarified that, while the Guidelines are one of several factors enumerated in 18 U.S.C. § 3553(a), they are entitled to considerable deference. See Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill [its] statutory mandate.”); United States v. Cage, 451 F.3d 585, 593 (10th Cir.2006) (describing the Guidelines as more than “just one factor among many”). They are significant, because “the Guidelines are an expression of popular political will about sentencing that is entitled to due consideration ... [and] represent at this point eighteen years’ worth of careful consideration of the proper sentence for federal offenses.” United States v. Cage, 451 F.3d at 593 (internal quotation marks omitted). A reasonable sentence is one that also “avoid[s] unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. at 261-62, 125 S.Ct. 738.

The Tenth Circuit has “joined a number of other circuits in holding that a sentence within the applicable Guidelines range is presumptively reasonable.” United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir.2006). This presumption, however, is an appellate presumption and not one that the trial court can or should apply. See Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456; Gall v. United States, 552 U.S. 38, 46-47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Kimbrough v. United States, 552 U.S. 85, 90-91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Instead, the trial court must undertake the § 3553(a) balancing of factors without any presumption in favor of the advisory guideline sentence. See Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456; Gall v. United States, 552 U.S. at 46-47, 128 S.Ct. 586; Kimbrough v. United States, 552 U.S. at 90-91, 128 S.Ct. 558.

While the Supreme Court’s decision in United States v. Booker has given the sentencing court discretion that it did not have earlier, the sentencing court’s first task remains to accurately and correctly determine the advisory-guideline sentence. Thus, before the sentencing court takes up a defendant’s Booker arguments, the sentencing court must first determine whether the defendant is entitled to downward departures. The sentencing court may, however, also use these same departure factors in the Booker calculus, even if the court does not grant a downward departure.

United States v. Apodaca-Leyva, No. CR 07-1479 JB, 2008 WL 2229550, at *6 (D.N.M. Feb. 13, 2008)(Browning, J.).

LAW REGARDING RELEVANT CONDUCT FOR SENTENCING

In calculating an appropriate sentence, the Guidelines consider a defendant’s “offense of conviction and all relevant conduct under [U.S.S.G.] § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1, cmt. 1(H). In United States v. Booker, the Supreme Court noted:

Congress’ basic statutory goal — a system that diminishes sentencing disparity — depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction. That determination is particularly important in the federal system where crimes defined as, for example, “obstructing], delaying], or affecting] commerce or the movement of any article or commodity in commerce, by ... extortion,” ... can encompass a vast range of very different kinds of underlying conduct.

543 U.S. at 250-51, 125 S.Ct. 738 (emphasis in original)(quoting 18 U.S.C. § 1951(a)). The Supreme Court’s reasoning in United States v. Booker suggests that the consideration of real conduct is necessary to effectuate Congress’ purpose in enacting the guidelines.

Section 1B1.3 provides that the base offense level under the guidelines “shall be determined” based on the following:

(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection of responsibility for that offense;

(2) solely with respect to offenses of a character for which [U.S.S.G.] § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and

(4) any other information specified in the applicable guideline.

U.S.S.G. § lB1.3(a)(l)-(4). The court may consider, as relevant conduct, actions that have not resulted in a conviction. Pursuant to the commentary to U.S.S.G. § 6A1.3, evidentiary standards lower than beyond a reasonable doubt are permitted to show relevant conduct. The court may rely upon reliable hearsay, so long as the evidence meets the preponderance-of-the-evidence standard. See United States v. Vigil, 476 F.Supp.2d 1231, 1245 (D.N.M.2007)(Browning J.). Accord United States v. Schmidt, 353 Fed.Appx. 132, 135 (10th Cir.2009) (unpublished) (“The district court’s determination of ‘relevant conduct’ is a factual finding subject to a preponderance of the evidence standard, and clear error review.”). The evidence and information upon which the court relies, however, must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).

Supreme Court precedent, on relevant conduct comes primarily from two cases: Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), and United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). In Witte v. United States, the Supreme Court upheld the use of uncharged conduct at sentencing against a double jeopardy challenge. The defendant in Witte v. United States had been involved in an unsuccessful 1990 attempt to import marijuana and cocaine into the United States, and in a 1991 attempt to import marijuana. See 515 U.S. at 392-93, 115 S.Ct. 2199. In March, 1991, a federal grand jury indicted the defendant for attempting to possess marijuana with intent to distribute in association with the defendant’s latter attempt to import narcotics. See 515 U.S. at 392-93, 115 S.Ct. 2199. At sentencing, the district court concluded that, because the 1990 attempt was part of the continuing conspiracy, it was relevant conduct under U.S.S.G. § 1B1.3, and therefore calculated the defendant’s base offense level based on the aggregate amount of drugs involved in both the 1990 and 1991 episodes. See 515 U.S. at 394, 115 S.Ct. 2199.

In September, 1992, a second federal grand jury indicted the.defendant for conspiring and attempting to import cocaine in association with the 1990 activities. See 515 U.S. at 392-93, 115 S.Ct. 2199. The defendant moved to dismiss the indictment, arguing that he had already been punished for the cocaine offenses, because the district court had considered those offenses relevant conduct at the sentencing for the 1991 marijuana offense. See 515 U.S. at 395, 115 S.Ct. 2199. The district court agreed and dismissed the indictment, holding that punishment for the cocaine offenses would violate the prohibition against multiple punishments which the Double Jeopardy Clause of the Fifth Amendment to the Constitution provides. See 515 U.S. at 395, 115 S.Ct. 2199. The United States Court of Appeals for the Fifth Circuit reversed the district court and held that “the use of relevant conduct to increase the punishment of a charged offense does not punish the offender for the relevant conduct.” United States v. Witte, 25 F.3d 250, 258 (5th Cir.1994). In reaching this holding, the Fifth Circuit acknowledged that its conclusion was contrary to other United States Courts of Appeals, including the Tenth Circuit, that had previously considered this question. See 25 F.3d at 255 n. 19 (citing United States v. Koonce, 945 F.2d 1145 (10th Cir.1991)).

The Supreme Court granted certiorari to resolve the conflict between the circuits and affirmed the Fifth Circuit. See 515 U.S. at 395, 115 S.Ct. 2199. In finding that the district court’s consideration of the defendant’s relevant conduct did not punish the defendant for that conduct, the Supreme Court concluded that “consideration of information about the defendant’s character and conduct at sentencing does not result in ‘punishment’ for any offense other than the one of which the defendant was convicted.” 515 U.S. at 401, 115 S.Ct. 2199. The Supreme Court reasoned that sentencing courts had always considered relevant conduct and “the fact that the sentencing process has become more transparent under the Guidelines .... does not mean that the defendant is now being punished for uncharged relevant conduct as though it were a distinct criminal offense.” 515 U.S. at 402, 115 S.Ct. 2199. Sentencing enhancements do not punish a defendant for uncharged offenses; rather, they reflect Congress’ policy judgment “that a particular offense should receive a more serious sentence within the authorized range if it was either accompanied by or preceded by additional criminal activity.” 515 U.S. at 403, 115 S.Ct. 2199.

In United States v. Watts, the Supreme Court, in a per curiam opinion, relied upon Witte v. United States’ holding and upheld, against a double jeopardy challenge, a sentencing judge’s use of conduct for which the defendant had been acquitted. In reaching its result in United States v. Watts, the Supreme Court noted that its conclusion was in accord with every United States Court of Appeals — other than the United States Court of Appeals for the Ninth Circuit — and that each had previously held that a sentencing court may consider conduct for which the defendant had been acquitted, if the government establishes that conduct by a preponderance of the evidence. See 519 U.S. at 149, 117 S.Ct. 633 (citing, e.g., United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir.1991)). The Supreme Court began its analysis in United States v. Watts with 18 U.S.C. § 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. See United States v. Watts, 519 U.S. at 151, 117 S.Ct. 633. According to the Supreme Court, 18 U.S.C. § 3661 embodies the codification of “the longstanding principle that sentencing courts have broad discretion to consider various kinds of information” and that “the Guidelines did not alter this aspect of the sentencing court’s discretion.” United States v. Watts, 519 U.S. at 151-52, 117 S.Ct. 633.

Tenth Circuit case law adheres closely to the Supreme Court’s results in Witte v. United States and United States v. Watts. See United States v. Andrews, 447 F.3d 806, 810 (10th Cir.2006) (applying Witte v. United States’ holding to affirm that a career offender enhancement does not violate the Double Jeopardy Clause of the Fifth Amendment). In United States v. Banda, 168 Fed.Appx. 284 (10th Cir.2006) (unpublished); the Tenth Circuit rejected a defendant’s argument that it was “structural error” for a district court to find sentencing factors “by a preponderance of the evidence rather than the jury applying a beyond-a-reasonable-doubt standard.” 168 Fed.Appx. at 290. The Tenth Circuit explained that “ £[i]t is now universally accepted that judge-found facts by themselves do not violate the Sixth Amendment. Instead, the constitutional error was the court’s reliance on judge-found facts to enhance the defendant’s sentence mandatorily.’ ” 168 Fed.Appx. at 290 (quoting United States v. Lauder, 409 F.3d 1254, 1269 (10th Cir.2005)).

In United States v. Coleman, the defendant, Troy Coleman, appealed the district court’s enhancement of his sentence for firearms possession after he was convicted of conspiracy to possess and possession of a controlled substance with intent to distribute, but was acquitted of using or carrying a firearm during and in relation to a drug trafficking crime. See 947 F.2d at 1428. The Tenth Circuit acknowledged that courts had taken various positions on whether a sentence may be enhanced for firearms possession despite a defendant’s acquittal of firearms charges. See United States v. Coleman, 947 F.2d at 1428-29 (citing United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990) (“[A]n acquittal on a firearms carrying charge leaves ample room for a district court to find by the preponderance of the evidence that the weapon was possessed during the drug offense.”); United States v. Rodriguez, 741 F.Supp. 12, 13-14 (D.D.C.1990) (refusing to apply 2-level enhancement for firearms possession, because “[t]o add at least 27 months to the sentence for a charge of which the defendant was found not guilty violates the constitutional principle of due process and the ban against double jeopardy”)).

Without discussion related to the standard of proof a sentencing court should use to make factual findings, the Tenth Circuit held that the district court did not err in enhancing Coleman’s sentence for possession of a firearm. See United States v. Coleman, 947 F.2d at 1429. The Tenth Circuit based its conclusion on evidence that: (i) two weapons had been located at the arrest scene; (ii) the weapons were handled at will by individuals who lived at the house; and (iii) the weapons were kept for the protection of conspiracy participants and the narcotics involved. See 947 F.2d at 1429. The Tenth Circuit summarized that, in reviewing federal case law, it found “persuasive the decisions that have allowed a sentencing court to consider trial evidence that was applicable to a charge upon which the defendant was acquitted.” 947 F.2d at 1429.

In United States v. Washington, 11 F.3d 1510 (10th Cir.1993), the defendant, Patrick Washington, argued that the United States should prove drug quantities used as relevant conduct to establish a defendant’s offense level by clear-and-convincing evidence rather than by a preponder-anee of the evidence. See 11 F.3d at 1512. The defendant objected to his sentencing, because the drag quantity that the district court considered as relevant conduct, and which the court found by a preponderance of the evidence, increased his Guidelines sentencing range from 210-262 months to life. The defendant argued “that because the additional drug quantities effectively resulted in a life sentence a higher standard of proof should be required.” 11 F.3d at 1515. Although the Tenth Circuit in United States v. Washington “reeog-nize[d] the strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof,” it held that “the Due Process Clause does not require sentencing facts in the ordinary case to be proved by more than á preponderance standard.” 11 F.3d at 1516 (citing McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).

LAW REGARDING VARIANCES FROM THE GUIDELINES

After United States v. Booker, the sentencing guideline ranges are now advisory and are one of several factors set out in 18 U.S.C. § 3553(a). Although appellate courts are allowed to assume that within-guidelines sentences are reasonable, subject to rebuttal, see Gall v. United States, 552 U.S. at 50-51, 128 S.Ct. 586, the Supreme Court has made it clear that no presumption of reasonableness attaches at the district court level to the sentence that the Guidelines suggest, see Gall v. United States, 552 U.S. at 50, 128 S.Ct. 586 (explaining that a sentencing' judge “may not presume that the Guidelines range is reasonable”); Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456 (“In determining the merits of [the parties’] arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”).

Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary” to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner....

18 U.S.C. § 3553(a)(2)(A)-(D). Section 3553(a) also directs sentencing courts to consider: (i) the nature of the offense and the defendant’s character; (ii) the available sentences; (iii) the sentencing guidelines and policy statements that the United States Sentencing Commission has promulgated; (iv) a policy favoring uniformity in sentences for defendants who commit similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

In Kimbrough v. United States, the Supreme Court stated that, in the ordinary case, “the Commission’s recommendation of a sentencing range will ‘reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.’ ” 552 U.S. at 89, 128 S.Ct. 558 (quoting Rita v. United States, 551 U.S. at 350, 127 S.Ct. 2456). The Supreme Court recognized, however, that the sentencing judge is “in a superior position to find facts and judge their import under § 3553(a) in each particular case.” 552 U.S. at 89, 128 S.Ct. 558. Applying § 3553(a)’s factors, the Court has found that the case of an illegal immigrant who re-enters the United States so as to be able to provide for his two children and two siblings was not materially differentiated from other re-entry cases, and thus, no variance from the guidelines sentence was warranted. See United States v. Almendares-Soto, No. CR 10-1922 JB, 2010 WL 5476767, at *12 (D.N.M. Dec. 14, 2010) (Browning, J.). On the other hand, in United States v. Jager, No. CR 10-1531 JB, 2011 WL 831279 (D.N.M. Feb. 17, 2011) (Browning, J.), although Jager’s military service was not present to an unusual degree and thus did not warrant a departure, the Court found that a variance was appropriate, because Jager’s military service was “superior and uniformly outstanding,” as Jager appeared to have been “trustworthy[ ] and dedicated, and he served with distinction.” 2011 WL 831279, at *14.

ANALYSIS

The Court agrees with the United States on its arguments regarding adjustments for gun possession and being a minor participant in criminal activity: Valdez qualifies for the former and does not qualify for the latter. These adjustments are rendered academic, however, by the application of the career-offender enhancement. The Court will apply the career-offender enhancement and will not counteract its effects entirely by varying downward to a sentence within the Guidelines range that would apply but for the career-offender guideline. Congress, not merely the Commission, mandated the career-offender guideline, and the Court is thus inclined to honor it. The Court will, however, vary downward from the Guidelines range significantly, from a Guidelines range to 188-235 months to a final sentence of 96 months.

I. VALDEZ QUALIFIES FOR THE GUN-POSSESSION ENHANCEMENT AND DOES NOT QUALIFY FOR THE MINOR-PARTICIPANT REDUCTION, BUT NEITHER DETERMINATION HAS ANY IMPACT ON HIS GUIDELINES SENTENCING RANGE, BECAUSE THE CAREER-OFFENDER GUIDELINE SUBSUMES BOTH ADJUSTMENTS.

Valdez qualifies for the gun-possession enhancement but not for the minor-participant reduction. The gun-poss'ession guideline requires only that, “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” U.S.S.G. § 2Dl.l(b)(l) (emphasis added). The guideline’s text makes clear defendant does not need to use, brandish, or discharge the weapon to receive the enhancement, and that mere possession is enough. The gun possession does have to occur in the course of relevant conduct; the Tenth Circuit has repeatedly emphasized the undemanding nature of this standard: “[T]he government has the burden of proving merely that a weapon was present in some physical proximity to the offense.... [T]he elements of the § 2Dl.l(b)(l) enhancement do not require that the weapon be possessed in connection with the offense.” United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993). The Tenth Circuit recognizes, however, an exception to the enhancement, rooted in the guideline’s commentary: “Once [the United States’] burden is met, ... [the defendant must] demonstrate that it was ‘clearly improbable’ that the gun was connected to the offense.” United States v. Gomez-Arrellano, 5 F.3d at 466. The United States Court of Appeals for the Sixth Circuit has stated:

We have previously clarified that the government need not show that the defendant possessed the weapon during the commission of the offense; instead, it must show only that the weapon was possessed during “relevant conduct,” which “includes ‘all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ ”

United States v. Finley, 239 Fed.Appx. 248, 254 (6th Cir.2007)(emphasis in original)(quoting United States v. Faison, 339 F.3d 518, 520 (6th Cir.2003)).

Valdez’ gun was found in close proximity to his offense of drug possession: he, the gun, his known drug-dealing partner, and the drugs were all found in the same vehicle. See PSR ¶ 20, at 7-8. Valdez argues that the drugs in the car were for personal use, see Reply ¶ 8, at 3-4, but the Court finds this contention unlikely, as there were at least four different drugs in the car, including marijuana that was stored in several separate baggies— suggesting division for the purpose of sale, see PSR ¶ 20, at 8. Valdez argues that the USPO’s decision to not add those drug quantities to the total equates to a finding that those drugs were not.possessed for future sale, see Reply ¶ 3-4 (citing PSR ¶ 20, at 8), but this decision was likely made (i) for convenience and (ii) because the additional weight would not have affected the outcome Guidelines range. Moreover, even if Valdez’ possession of these drugs somehow did not constitute the actual commission of this crime of conviction, it certainly constitutes relevant conduct.

Valdez likewise does not qualify for the minor-participant reduction. This reduction is reserved for participants who are “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt. 3. The commentary gives two illuminating examples of how courts should apply the adjustment:

[A] defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable under 1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.

Likewise, a defendant who is accountable under § 1B1.3 for a loss amount under § 2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant’s personal gain from a fraud offense and who had limited knowledge of the scope of the scheme is not precluded from consideration for an adjustment under this guideline. For example, a defendant in a health care fraud scheme, whose role in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount, is not •precluded from consideration for an adjustment under this guideline.

U.S.S.G. § 3B1.2 cmt. 3.

Valdez’ role in the drug transactions was not “limited to transporting or storing drugs”; he arranged the transactions, negotiated the price, personally took the money and vended the drugs, and appeared to cultivate repeat customers. See PSR ¶ 12-26, at 6-9. He asserts that he profits approximately $20.00 for every $100.00 of drugs he sells, see PSR ¶ 26, at 9, but this share is likewise far from being only “accountable ... for a[n] amount ... that greatly exceeds the defendant’s personal gain” — to the contrary, a twenty-percent profit margin seems like a reasonable rate of return for a “low-level drug dealer[ ]” without serious drug connections who buys his product from a mid-level dealer with such connections. U.S.S.G. § 3B1.2 cmt. 3; PSR ¶26, at 9. Valdez lacks the expertise, work ethic, or network to create the drugs, smuggle them into the country, or arrange for their complex distribution to dealers; he is paid primarily for being willing to incur an increased risk of arrest associated with the many street-level transactions in which he engages, and, to a lesser extent, for client development, marketing, and customer service.

Valdez does not qualify for a minor-participant adjustment. The only reason the USPO initially applied the reduction was because it thought the United States and Valdez had jointly stipulated to it. See PSR ¶ 6, at 5. Given that the United States has not consented to the adjustment, see U.S. Memo, at 2, and that the adjustment is factually inapplicable, the Court will not grant Valdez the 2-level reduction. Ultimately, the Court’s rulings on these two adjustments are inconsequential, because the various guidelines must be applied in a specified order, and the career-offender guideline subsumes all chapter two and three adjustments. For career offenders, the only factors that determine a defendant’s Guidelines sentencing range are: (i) the maximum statutory sentence of the crime of conviction; and (ii) chapter 5 departures and the § 3E1.1 acceptance-of-responsibility adjustment. See United States v. Jeppeson, 333 F.3d 1180 (10th Cir.2003) (Kelly, J.); United States v. Nolf, 30 F.Supp.3d 1200, 1225-27, 2014 WL 3377695, at *22-34 (D.N.M.2014) (Browning, J.). The Court may then vary from the Guidelines range under 18 U.S.C. § 3553(a).

II. THE COURT WILL APPLY THE CAREER-OFFENDER ENHANCEMENT, BUT WILL VARY DOWNWARDS FROM VALDEZ’ FINAL GUIDELINES SENTENCING RANGE — NOT OUT OF A GENERAL KIMBROUGH DISAGREEMENT WITH THE CAREER OFFENDER GUIDELINE, BUT BECAUSE THE COURT BELIEVES ITS APPLICATION DOES NOT COMPLY WITH 18 U.S.C. § 3553(a) IN THIS CASE.

The Court will apply the career-offender enhancement, because Valdez was convicted of two controlled substance felonies before this one. The Court will not counteract the career-offender guideline — at least not entirely — by varying downward. Although the Court, is permitted to vary from the Guidelines for no other reason than having policy disagreements with the Guidelines — these disagreements are known as Kimbrough disagreements, after Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) — the Court has no general Kimbrough disagreement with the career-offender enhancement. Congress itself directed the Commission to create the career-offender guideline — not with a broad, discretionary mandate like the ones it usually gives to the Commission and other administrative agencies, but with, a highly specific statutory command, 28 U.S.C. § 994(h), that more-or-less mirrors the guideline. The Commission’s role in creating the career-offender guideline was more akin to taking dictation from Congress than it was to exercising congres-sionally granted discretion. The Court is willing to have Kimbrough disagreements with the Guidelines when it concludes that the Commission has not properly executed Congress’ will; the Court is reticent, however, to act on pure Kimbrough disagreements with Congress itself. The Court will vary Valdez’ sentence downward, however — not on a general Kimbrough disagreement with the guideline, but based on the career-offender enhancement’s disproportionate impact in this case, and its failure to result in a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth” in § 3553(a). 18 U.S.C. § 3553(a).

A. VALDEZ’ GUIDELINES SENTENCING RANGE IS 188-235 MONTHS ON ACCOUNT OF THE CAREER-OFFENDER ENHANCEMENT.

To properly calculate Valdez’ Guidelines sentencing range, the Court must apply the career-offender guideline to him. The career-offender guideline: (i) as codified in the Guideline, factually applies to Valdez, given his criminal history; (ii) was properly fashioned pursuant to a clear and direct congressional mandate, 28 U.S.C. § 994(h); and (iii) was intended to be binding upon district judges, albeit indirectly, because when Congress directed the Commission to create the career-offender guideline, the Guidelines were still mandatory. Although the Court may counteract the effects of what it considers to be an unfair application of the Guidelines by varying from their suggested sentencing range, the proper time to do so is after first calculating the proper Guidelines range.

The career-offender guideline provides as follows:

Career Offender

(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

(b) Except as provided in subsection (c), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply. A career offender’s criminal history category in every case under this subsection shall be Category VI.

Offense Statutory Maximum Offense Level

(1) Life 37

(2) '25 years or more 34

(3) 20 years or more, but less than 25 years 32

(4)' 15 years or more, but less than 20 years 29

(5) 10 years or more, but less than 15 years 24

(6) 5 years or more, but less than 10 years 17

(7) More than 1 year, but less than 5 years 12

* If an adjustment from § 3E1.1 (Acceptances of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment.

U.S.S.G. § 4B1.1 (emphasis omitted). Valdez plainly satisfies § 4Bl.l(a)’s criteria: he was forty-eight and forty-nine years old when he committed the crime of conviction; the crime of conviction here is a controlled substance felony; and Valdez has been convicted twice before this offense of controlled substance felonies — in 2001 and 1994, with an additional stale conviction in 1990. As such, Valdez does not dispute the mechanical applicability of the career-offender guideline to his case, but rather argues that applying the guideline results in unfairness in his case.

Although Valdez has not objected to the USPO’s statement that he is a career offender, the Court will briefly conduct its own analysis to be sure. For the career-offender enhancement to apply to Valdez, at least two of Valdez’ prior convictions must: (i) be “controlled substance offense[s]”; (ii) be “felony convictions”; and (iii) not be time-barred. Valdez’ 1990 conviction is stale and does not count toward the two prior felony convictions required to be classified as a career offender; his 2001 and 1994 convictions, however, satisfy all three requirements, and Valdez is thus properly classified as a career offender.

Addressing the first requirement, the Guidelines define a “controlled substance offense” as any “offense under f