United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
J. LEON HOLMES UNITED STATES DISTRICT JUDGE
Ace Vargas was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The indictment charged three other defendants with conspiracy to possess with intent to distribute methamphetamine, distribution of methamphetamine, and other related charges. Ace Vargas has pled guilty to the one count of felon in possession and has come before the Court for sentencing. The presentence report provides for a base offense level of fourteen, citing U.S.S.G. § 2K2.1. With a two-level reduction for acceptance of responsibility, the presentence report proposes that the final offense level should be twelve. Based on an offense level of twelve and a criminal history category of I, the guideline imprisonment range would be ten months to sixteen months.
The United States has objected, arguing that the defendant should receive a two-level enhancement under § 3C1.1 for obstructing or impeding the administration of justice for his role in concealing evidence material to an investigation. The government also objects to the defendant not receiving a two-level enhancement under § 2K2.1(b)(1)(A) because three to seven firearms were involved in the offense. Finally, the government objects to the defendant not receiving a four-level enhancement under § 2K2.1(b)(6) because the firearms were possessed in connection with another felony, a conspiracy to possess with intent to distribute methamphetamine. If the government’s objections are sustained, Ace Vargas’s offense level would be twenty and the guideline range would be thirty-three to forty-one months imprisonment. The government has the burden of proving the facts relevant to these enhancements by a preponderance of the evidence. United States v. Villareal-Amarillas, 562 F.3d 892, 895 (8th Cir. 2009).
The Court has conducted an evidentiary hearing on the government’s objections. Four witnesses testified at the evidentiary hearing: Chris Weaver, a narcotics investigator for the City of North Little Rock; Stephen Harris, who has pled guilty to conspiracy to possess with intent to distribute methamphetamine in the same indictment in which Ace Vargas is charged; Paula Spence, who has pled guilty to possession of methamphetamine with intent to distribute on charges in the same indictment as Ace Vargas; and Ace Vargas. The Court also received several exhibits, two of which were video recordings.
The indictment in this case arises from what had been three separate investigations into methamphetamine distribution in central Arkansas. Weaver was investigating Paula Spence. Another officer of the narcotics division of the North Little Rock Police Department was investigating Stephen Harris. Unbeknownst to the North Little Rock Police Department, the Pulaski County Sheriff’s Department was investigating Manuel Vargas, who, according to testimony at the evidentiary hearing, supplied methamphetamine to both Spence and Harris. Manuel Vargas and Ace Vargas are cousins.
The three investigations converged on August 26, 2013. At that time, the North Little Rock Police Department had set up electronic surveillance on 12412 Woodbourne in Little Rock, which was known to them as the address of Paula Spence. Spence lived there with Manuel Vargas, who was her boyfriend. Manuel Vargas also had a residence at 4918 Westwood Avenue in Little Rock, which he shared with his wife. The Pulaski County Sheriff’s Department had the residence at 4918 Westwood under electronic surveillance.
On August 26, 2013, the electronic surveillance of 12412 Woodbourne video-recorded an incident in which Stephen Harris visited that address, remained there for approximately twenty-three minutes, and then exited with a black bag, which he placed in his car before driving away. The August 26 video recording is approximately one hour and eight minutes long. The first activity on the video shows Manuel Vargas drive up to the residence in a BMW, exit the car, and enter the residence. At approximately thirty minutes into the video, a white pick-up truck drove into the driveway, a man exited carrying a bag, and entered the residence. According to Paula Spence, that man was known to her as Jorge - Manuel Vargas’s principal supplier of methamphetamine. Paula Spence believed that Jorge was to deliver five pounds of methamphetamine to Manuel Vargas that day, but the bag as shown in the video was not large enough to contain five pounds of methamphetamine. At approximately forty-five minutes into the recording, Stephen Harris drove up and parked in front of the residence, exited his vehicle, and entered the house. At approximately one hour and six minutes into the video, a white Dodge Charger parked in front of the residence. A man in a wheelchair - Ace Vargas - entered the picture carrying something - the recording is indistinct - on his lap. Another man - Nico Hobbs - came into the picture. Ace Vargas and Nico Hobbs entered the house. At approximately one hour and eight minutes into the video, Stephen Harris exited the house, got into his car, and left. The video recording ended at that point. Officers conducted a traffic stop of Harris and discovered a pound of methamphetamine in the bag. Harris told the police that he had purchased the pound of methamphetamine from Manuel Vargas. He also reported that two or three pounds of methamphetamine remained in the house.
Based upon Harris’s statements, officers obtained a search warrant for 12412 Woodbourne, which they executed on the following day - August 27, 2013. During that search, officers found Paula Spence in the residence, pouring methamphetamine down a drain. A search of the house discovered several firearms, a large amount of cash, and three large bundles of marijuana. The officers also located two pounds of methamphetamine in a locked vehicle in the garage.
While the officers were executing the search warrant at 12412 Woodbourne, the surveillance camera at 4918 Westwood Avenue recorded a related incident. That recording shows that Manuel Vargas drove up in the same BMW he had driven the day before, entered the house, removed items from the house, put them in the back seat of the BMW, and went back into the house to retrieve additional items. Another vehicle - a white Dodge Charger - also was present. The evidence established that Nico Hobbs was driving the Charger, Ace Vargas was in the front passenger seat, and Ace Vargas’s girlfriend was in the back seat. Approximately ten seconds after Manuel Vargas placed the items in the back seat of the BMW, Nico Hobbs exited the Charger, retrieved the items that Manuel Vargas had placed in the BMW, and placed them in the trunk of the Charger. Manuel Vargas then brought more items out of the house and put them into the trunk of the Charger. Then both vehicles left. Officers from the Pulaski County Sheriff’s Department stopped both vehicles.
When the Charger was stopped, Ace Vargas was sitting in the passenger side of it with a bag at his feet. A firearm was located in that bag. Ace Vargas admitted that the firearm was his. Ace Vargas was shot in the back five times in a home invasion in California in 2003, as a result of which he is a paraplegic. He says that he carried the gun with him for self-defense out of fear that he might be the subject of another attack.
During the same traffic stop, officers discovered two pistols and an assault rifle in the trunk of the Charger, as well as a pistol under the driver’s seat. In addition, $90, 000 in cash and a large quantity of jewelry were found in the Charger’s trunk. The guns, the cash, and the jewelry are items that Manuel Vargas retrieved from the house at 4918 Westwood while officers were executing the search warrant at 12412 Woodbourne.
The government contends that Ace Vargas was a participant in the methamphetamine distribution conspiracy of which Manuel Vargas was the leader, that Ace Vargas knowingly participated in attempting to hide evidence that had been located in Manuel Vargas’s house at 4918 Westwood, and therefore his offense level should be enhanced pursuant to the guideline provisions mentioned above. Ace Vargas denies that he had any involvement in Manuel Vargas’s distribution of methamphetamine and denies that he knowingly and intentionally participated in the concealment of evidence.
Both Stephen Harris and Paula Spence gave testimony that implicated Ace Vargas in Manuel Vargas’s methamphetamine distribution business. Stephen Harris testified that he first met Ace and Manuel Vargas in 2000 or 2001 through a mutual friend who was sharing a house with them. Sometime thereafter, he began purchasing methamphetamine from them. Stephen Harris testified that he principally purchased methamphetamine from Manuel Vargas, but Manuel Vargas was incarcerated on several occasions, and when Manuel Vargas was incarcerated he would purchase methamphetamine from Ace Vargas. Stephen Harris testified, and Ace Vargas confirmed, that the two of them were friends. Stephen Harris called by telephone Ace Vargas after he had been shot and spoke with him. Stephen Harris also visited Ace Vargas in his California home while he was recuperating from his gunshot wounds, staying with him for one or two weeks. Stephen Harris testified that Ace Vargas told him that the home invasion was drug related. Ace Vargas denies that the home invasion was drug related and denies telling Stephen Harris that it was. According to Stephen Harris, when he arrived at 12412 Woodbourne on August 26, 2013, Manuel Vargas said that the methamphetamine was not there yet and he would have to wait. Eventually, Ace Vargas and Nico Hobbs arrived. Ace Vargas, Stephen Harris says, had a shopping bag with a shoe box inside of it. Ace and Manuel Vargas went into another room, after which Manuel Vargas emerged with a box containing the methamphetamine.
Paula Spence testified that on some occasions Manuel Vargas was unable to obtain methamphetamine from Jorge. According to her, on three different occasions when that happened, she and Manuel Vargas flew to California and stayed at Ace Vargas’s residence for some length of time. According to her, on all three occasions Manuel Vargas purchased large quantities of methamphetamine and marijuana. She testified that she, Manuel Vargas, Ace Vargas, and a man known to her as Turtle packaged the methamphetamine and marijuana for shipping in sealed bags, which were wrapped like birthday presents or placed in shoe boxes and then put into larger boxes for shipping. They took those packages to the postal service and shipped them back to Arkansas. Paula Spence also testified that Ace Vargas mailed one package that was intercepted by the postal service. Ace Vargas denies that he shipped or participated in shipping any drugs from California to ...