United States v. BarelaUnited States v. Barela
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendant’s Objection to Presentence Report and Request for Variance and Sentencing Memorandum, filed June 24, 2014 (Doc. 27)(“Objections”). The'Court held a sentencing hearing on July 8, 2014. The primary issue is whether there is sufficient evidence to establish that Defendant Isaac Barela used or possessed a firearm in connection with another offense to support a 4-level enhancement under §-2K2.1(b)(6). The Court 'will overrule Barela’s Objections in part and sustain them in part. The Court finds, by a preponderance of the evidence, that Barela used or possessed a firearm in connection with another felony offense, that is, a drug trafficking offense, because he admitted to dealing drugs, and the New Mexico State Police (“NMSP”) agents found at his resi
FACTUAL BACKGROUND
In a Plea Agreement, filed March 24, 2014 (Doc. 22)(“Plea Agreement”), Barela admitted the following facts:
On July 23, 2013, a group of police officers came to my house to arrest me on a warrant. I gave them permission to search the house. In my closet they found a Winchester long rifle and a handgun. The Winchester was a model 190, .22 L/LR rifle, with serial number B1793201. The handgun was a Llama, model Micro-Max 380, .380 AUTO caliber pistol, with serial number 71040373703. Both weapons were loaded. I knew that they were in my closet. I acknowledge that' the government can prove that the firearms were not manufactured in the state of New Mexico and that they therefore traveled in interstate commerce. ' - - •
Plea Agreement ¶ 7, at 3.
During the search, NMSP agents observed hypodermic needles on the bathroom sink, which ' “contained a brown liquid, which the agents believed to be heroin.” Presentence Investigation Report ¶ 11, at 4, disclosed June 5,: 2014 (“PSR”). “On the side- of the sink, agents noticed an open slide cellular telephone, several unused hypodermic needles with the caps removed, a scale with possible heroin residue, and a metal spoon with what appeared to be' cocaine.” PSR ¶ 11, at 4. The agents placed Barela -undér arrest; -Barela “allowed the agents to search his residence after admitting, he was dealing drugs.” PSR ¶ 11, at 4.
’A thorough search of Barela’s bathroom located a tall box of needles, with several small boxes, each containing an open bag of needles loaded with a brown liquid that appeared to be heroin. Additionally, in a closet of one of the bed-rooms of the home, agents located a .22 caliber Winchester long rifle and a .380 caliber handgun. Both firearms were loaded and very near another box-of hypodermic needles that contained what appeared to be heroin. Also located in the closet was three scales, two pill bottles, a cut off can bottom with heroin residue, and a plastic bag filled with change and other drug paraphernalia. A search of the room where Barela had been located found a number of bags and containers which, when opened, contained speakers, amps, car charger kits,' power tools, a chainsaw,' and numerous personal items. All of the items in this room appeared to have been stolen due to the large quantity and because none of the items had been opened.
PSR ¶ 12, at 4. The NMSP agents transported the items to the NMSP station, including “.25 ounces' of a hard brown substance, that field tested positive for heroin; 97 needles that' contained heroin totaling 27.35 milliliters; $1,876 in cash; six scales; and two firearms.” PSR ¶ 13, at 4. Barela admitted to the NMSP agents that “he was dealing drugs.” PSR ¶ 11, at 4.
PROCEDURAL BACKGROUND
On October 30, 2013, Barela was charged with: (i) possessing a substance containing a detectable amount of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (“Count 1”); (ii) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) (“Count 2”); and (iii) possessing a firearm in furtherance of a drug
In the PSR, the United States Probation Office (“USPO”) calculated Barela’s base offense level at 20, under U.S.S.G. § 2K2.1, and applied a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6), for using or possessing any firearm in connection with another felony offense. See PSR ¶¶ 21-22, at 6. In support of this enhancement, the PSR states: “In this case, two firearms and 27.35 milliliters of heroin were found in the defendant’s home. Based on this information, a four-level increase has been applied.” PSR ¶ 22, at 6. The PSR notes a 2-level reduction pursuant to U.S.S.G. § 3El.l(a) for accepting responsibility and a 1-level reduction pursuant to U.S.S.G. § 3El.l(b) for timely notifying authorities of an intention to enter a guilty plea. See PSR ¶ 28-29, at 6. The PSR notes that Barela’s total offense level is 22. See PSR ¶ 30, at 6. Based on prior convictions for distributing a controlled substance, for assaulting a household member, and for criminal damage to property, the PSR calculates a criminal history score of 4, which results in a criminal history category of III. See PSR ¶¶ 33-36, at 7-8. The PSR notes that the Guidelines imprisonment range for an offense level of 21 and a criminal history category of III is 46 to 57 months. See PSR ¶ 59.
Barela makes two objections to the PSR. First, Barela objects that the “amount of heroin is incorrect.” Objections at 2. In his view, the “27.35 milliliters (27.35 grams), the amount of liquid recovered from the used syringes, as explained in a prior motion to continue, was not all heroin.” Objections at 2. He explains that
[w]hen a heroin user injects heroin into his vein some blood is released. In a heavy intravenous heroin user some times veins are so badly scarred and damaged that it is hard to hit a healthy vein. When that happens, heroin does not enter the vein but rather the user’s blood backs into the syringe and he is unable to inject the heroin into the vein so the needle, now containing blood and heroin, is removed from the user’s arm.
Objections at 2. Barela contends that the “substance in the used hypodermic needles was not tested for the presence of human blood,” and, thus, that the “amount of fluid in the syringes should not be used.” Objections at 2. He asserts that only .25 ounces, or around seven grams, of heroin should be considered. See Objections at 2.
Second, Barela objects to the application of § 2K2.1(b)(6). See Objections at 2-5. Barela contends that “[d]rug trafficking offenses and drug possession offenses are not treated the same for purposes of Section 2K2.1(b)(6),” because application note 14(B) applies in drug trafficking offenses and indicates that the “firearm necessarily has the potential of facilitating another felony,” while application note 14(A) applies in drug possession cases, and the Court must “determine whether the firearm facilitated, or had the potential of facilitating,” the drug possession offense. Objections at 3. Because he asserts that the other felony is drug possession, and not drug trafficking, and because he was in his home, rather than out in public, he argues that “[t]here was absolutely no connection between the heroin Mr. Barela was preparing to use and the firearms that were in another room, in a closet.” Objections at 3-4. He contends that his “pos
Responding to Barela’s objection regarding the amount of heroin, the United States said that it “does not know the ratio of blood (if any) to heroin inside of the needles because laboratory analysis of the needles’ content was not performed after Mr. Barela’s guilty plea.” Response to Defendant’s Objection to the Presentence Report at 1 n. 1, filed June 26, 2014 (Doc. 29)(“Response”). The United States states that, even if the Court assumes'that Barela is correct about the amount of heroin, the 4-level “enhancement is nonetheless appropriate because of the other evidence that Defendant was selling drugs.” Response at 1-2.. The United States asserts that,
[w'Jhether' or not Defendant intended to distribute the fluid-filled syringes, other drugs were found at his residence — a plastic bag containing 5 grams of heroin, a metal spoon containing a small amount (.14 grams) of cocaine, and a scale with suspected heroin residue — and Defendant plainly admitted to the agents who arrested him that he was selling drugs. In a recorded conversation, one of the agents asked him if the heroin-they had found was for “personal use or are you selling it?” Defendant responded: “Selling it.” See PSR at ¶ 11 (stating that Defendant “admitted he was dealing drugs”). The presence of five additional scales and $1,876 in cash at Defendant’s residence are further evidence of Defendant’s distribution of narcotics.
Response at 2. The United States contends that this “evidence of distribution, combined with the close proximity of the firearms to the drugs and paraphernalia,” supports the 4-level enhancement. Response at 2.
The United States alternatively argues that the 4-level enhancement is appropriate, because Barela “possessed the firearms in connection with another felony offense: receiving stolen property with a value over $250,” in violation of N.M. Stat. Ann. § 30-16-11. Response at 2. The United States contends that,, “[ajpplying the same logic as with drug trafficking offenses, the possession of firearms facilitates the possession of stolen goods. Due to the illicit nature of the business, Defendant could hardly call the police if a. customer or associate turned violent or decided to steal the goods.” Response at 2 (citing United States v. Rogers,
The USPO disclosed two addendums to the PSR. In the first Addendum to the Presentence Report, disclosed July 1, 2014 (“1st Addendum”), the USPO “stands by the assessment” of the amount of heroin as it listed in the PSR, including the 27.35 milliliters, and also maintains that the 4-level enhancement under § 2K2.1(b)(6)(B) applies, because Barela “maintained a usable amount of heroin in his residence, where weapons were easily accessible.” 1st Addendum at 1. In the Second Addendum to the Presentence Report, disclosed July 8, 2014 (“2d Addendum”), the USPO states that “there is no information to verify the type of substance'in.each of the needles” that were found at Barela’s residence.2d Addendum at 1. The USPO notes that, while Barela used the needles to inject himself with heroin, the substance in the needles has not been confirmed to contain
The Court held a sentencing hearing on July 8, 2014. See Transcript of Hearing (taken July 8, 2014)(“Tr.”)
The United States argued that it is not relying on the possession of drugs offense for the firearm enhancement and that, regardless of what substance is in the needles, there is enough evidence to find that Barela distributed drugs, because he admitted to selling drugs and .there were six scales, $1,876.00 in cash, five grams of heroin, a metal,spoon, and some drug residue at his residence. See Tr. at 56:7-57:12 (Messec). The United States maintains that, in addition, to Barela’s own admission, there is sufficient evidence to find that he was selling drugs. See Tr. at 57:13-22 (Messec). The United States noted that, if the Court rejected its drug-distribution argument, it would fall back on its possession-of-stolen-property argument. See Tr. at 58:1-6. (Messec). It maintained that Barela was, not employed, yet he had a large quantity of unopened, expensive goods at his residence. See Tr. at 58:7-21 (Messec). The United States argued that the firearms were kept in Barela’s residence in case someone tried to steal the stolen goods, which meant that the firearms facilitated his possession of the goods. See Tr. at 58:22-59:9 (Messec).
The Court asked the United States about its statement in the Response that
The Court overruled Barela’s objection to the amount of heroin in the syringes, because it is moot in light of the 2d Addendum. See Tr. at 64:18-25 (Court). The Court held that the 4-level adjustment applied, because there is” sufficient evidence to find by a preponderance of the evidence that Barela distributed drugs and that Barela used the firearms in connection with the distribution of drugs. See Tr. at 68:9-70:8 (Court). The Court noted, however, that it could not find by a preponderance of the evidence that Barela possessed stolen goods. See Tr. at 70:9-14 (Court). The Court then sentenced Barela to 46-months imprisonment. See Tr. at 77:8-11 (Court).
LAW REGARDING THE UNITED STATES SENTENCING GUIDELINES
In United States v. Booker,
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 of- , fense,'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 ef- ■ fective 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; (iii) 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 ranges are no'longer mandatory,' both the Supreme Court and the Tenth Circuit have clarified that, while the Guidelines ranges are one of several factors enumerated in 18 U.S.C.
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,
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,
LAW REGARDING THE BURDEN.OF PROOF REQUIRED FOR ENHANCEMENTS UNDER THE GUIDELINES
In Apprendi v. New Jersey,
In United States v. Magallanez,
The Tenth Circuit, while “recognizing ‘strong arguments that relevant conduct causing a dramatic increase in sentence out to be subject to a higher standard of proof,’” has “long held that sentencing facts in the ‘ordinary case’ need only be proven by a preponderance.” United States v. Olsen,
The Court explained that, although the decision of the Supreme Court of the United States in Alleyne v. United States, — U.S. -,133 S.Ct. 2151 ,186 L.Ed.2d 314 (2013), expands the rule from Apprendi v. New Jersey,530 U.S. 466 ,120 S.Ct. 2348 ,147 L.Ed.2d 435 (2000) (holding that facts that increase the maximum sentence a defendant faces must be proven to a jury beyond a reasonable doubt), to cover facts that increase the mandatory minimum sentence, as well as the maximum sentence, it does not prohibit district judges from continuing to find advisory sentencing factors by a preponderance of the evidence. See [United States v. Sangiovanni, No. CR 10-3239 JB,]2014 WL 4347131 , at *22-26 [ (D.N.M. Aug. 29, 2014) (Browning, J.) ].
United States v. Cervantes-Chavez,
LAW REGARDING U.S.S.G. ■ § 2K2.1(b)(6)
, U.S.S.G. § 2K2.1(b)(6) provides a 4-level enhancement to a defendant’s base offense level for a sentence under U.S.S.G. §' 2K2.1 “if the defendant used or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). Application Note 14 to U.S.S.G. § 2K2.1 specifies that the use or possession is “in connection with” a different felony “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1, Application Note 14(A). “The plain and commonly understood meaning of ‘facilitate’ is to make easier.” United States v. Marrufo,
In Smith v. United States,508 U.S. 223 ,113 S.Ct. 2050 ,124 L.Ed.2d 138 (1993), on which Application Note 14(A) is based, U.S.S.G. app. C amend. 691, the Supreme Court interpreted the term “in relation to.” Id. at 238,113 S.Ct. 2050 . It stated: “the gun at least must facilitate, or have the potential of facilitating, the [other] offense” and “its presence or involvement cannot be the result of accident or coincidence.” Id. (quotations and brackets omitted); see also United States v. Taylor,413 F.3d 1146 , 1154 (10th Cir.2005); United States v. Constantine,263 F.3d 1122 , 1126 (10th Cir.2001).
United States v. Marrufo,
The Tenth Circuit has held on several occasions that physical proximity between a weapon and narcotics can be sufficient to satisfy the requirements of U.S.S.G. § 2K2.1(b)(6). See, e.g., United States v.
The United States Court of Appeals for the Eighth Circuit has noted that, when a person ventures out into public with a firearm and even a small amount of drugs, “there are many ways in which the weapon can facilitate the drug offense and dangerously embolden the offender;” United States v. Regans,
There is no requirement that a certain amount of narcotics be recovered for the enhancement under U.S.S.G. § 2K2.1(b)(6) to apply. See United States v. Condren,
In United States v. Justice,
when the defendant is out and about, with' drugs on his person and a loaded firearm within easy reach, one can infer from' the proximity of the weapon to the drugs is not coincidental and that the firearm “facilitated, or had the potential of facilitating,” the drug offense by emboldening the possessor.
United States v. Justice,
An enhancement under § 2K2.1(b)(6) may be applied even though the felony in connection with which the firearm is possessed was not an offense for which the defendant was convicted. See United States v. Gambino-Zavala,
[g]iven that the Court has no ability to gather or present evidence to support a sentencing enhancement, the Court is dependent in many ways on the United States to assess the strength of its. arguments and evaluate whether it can.prove that a particular enhancement applies. While it is possible that the methamphetamine is attributable to Kepler, the evidence before the Court does not support a factual finding to that effect by a preponderance of the evidence. Without proof that Kepler committed another felony offense, the United States cannot establish that an enhancement under U.S.S.G. § 2K2.1(b)(6) applies.
ANALYSIS
The Court will sustain the Objections in part and overrule them in part. There is insufficient evidence to' find that the substance found in the ninety-seven syringes was only heroin, and, thus, the Court will not consider the 27.35 liiilliliters of liquid in the syringes in calculating the'total amount of heroin. Based on Barela’s admission, the scales, the .25 milliliters of heroin, and the drug paraphernalia, the Court finds by a preponderance of the evidence that Barela was trafficking drugs. Additionally, because Barela used the firearms'in connection with the felony of trafficking drugs, the Court will apply the 4-•level' enhancement under § 2K2.1(b)(6) and will sentence Barela to 46-months' imprisonment.
I. THE COURT WILL SUSTAIN BARELA’S OBJECTION TO THE 27.35 MILLILITERS OF LIQUID THAT THE AGENTS FOUND IN SYRINGES.
The Court will sustain Barela’s objection to the amount of heroin listed in the PSR. While the PSR originally stated that the syringes found in Barela’s residence contained 27.35 milliliters of heroin, see PSR ¶12, at 4, the USPO issued an addendum, that stated that it is not confirmed that the 27.35 milliliters is only heroin, see 2d Addendum at 1. The United States has .not tested the liquid in the syringes, and the United States has not insisted that the syringes contained only heroin. There is thus insufficient evidence to find by a preponderance of the evidence that the substance found in the syringes was purely heroin. The Court will accordingly sustain. Barela’s objection to the amount of heroin found in the syringes and will consider only the .25 ounces, or seven grams, of heroin that the NMSP agents field tested and confirmed to be heroin.
II. THERE IS SUFFICIENT EVIDENCE TO ESTABLISH THAT BARELA USED OR POSSESSED A FIREARM IN CONNECTION with Another offense,-.supporting THE 4-LEVEL ENHANCEMENT UNDER § 2K2.1(b)(6).
Section 2K2.1(b)(6) provides for a 4-level enhancement if the defendant
If Barela merely possessed the heroin and did not distribute it, the Court would sustain Barela’s objection.' Courts often look to whether a firearm emboldens the defendant to possess the drugs; this conclusion is more readily reached when the defendant is out in public with the drugs and the firearm. See United States v. Justice,
The Court does not think that the facts in this case demonstrate that Barela used or possessed the firearms, located in a bedroom closet, in connection with the offense of possessing heroin. That is, the firearm did not facilitate or have the potential of facilitating Barela’s drug possession offense, because there is no evidence to indicate that the firearm emboldened Barela to possess the heroin in his house.
The United States argues that, instead of relying on the felony of drug possession, the Court should consider Barela’s other felony offense to be drug trafficking. See Response at 1-2. From the PSR, the United States points to Barela’s admission that he “admitted] he was dealing drugs,” PSR ¶ 11, at 4, that he had .25 ounces of a substance that field tested positive for heroin, see PSR ¶ 13, at 4, and that he had various drug paraphernalia in the closet where the firearms were located, including a box of hypodermic needles, three scales, two pill bottles, a cut off can bottom with heroin residue, and a plastic bag filled with change and other drug paraphernalia, see PSR ¶ 12, at 4. The United State's also lists additional information in the Response supporting a finding that Barela was trafficking drugs, including his admission that he was selling the heroin that the 'agents found. See Response at 2 (“In a recorded conversation, one of the agents asked him if the, heroin they had found was for ‘personal use or are you selling it?’ Defendant responded: ‘Selling it.’ ”). At the hearing, Barela acknowledged that there is evidence that seems to indicate that he admitted to selling drugs, but Barela refused to
There is sufficient evidence to find that Barela’s other felony offense is a drug-trafficking offense, thus supporting the application of the § 2K2.1(b)(6)(B) enhancement. Although the Court will exclude the 27.35 milliliters of liquid found in syringes, the Court will consider the .25 ounces of heroin, or roughly seven grams, that was field tested and to which Barela has not objected. This amount of heroin, together with Barela’s admission that he was dealing drugs, the -$1,876.00 in cash, the six scales, and the boxes of hypodermic needles, supports the conclusion that Barela’s other offense is a drug trafficking. While Barela contends that some of the scales were broken and that a scale can be used by a drug user as well as a drug dealer, the number of scales in Barela’s residence supports a finding that he was trafficking drugs and not merely using drugs. See United States v. Triana,
Application Note 14(B) states that § 2K2.1(b)(6) applies in a drug trafficking case when “a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” U.S.S.G. § 2K2.1(b)(6), Application Note 14(B). In the same closet that the firearms were found, NMSP agents found a bag containing needles, three scales, two pill bottles, a cutoff can bottom with heroin residue, and a plastic bag filled with change and other drug paraphernalia. See PSR ¶ 12, at 4. The firearms were thus found in close proximity to drugs, drug-manufacturing materials, and drug paraphernalia. See U.S.S.G. § 2K2.1(b)(6), Application Note 14(B).
In United States v. Pacheco, the Court applied § 2K2.1(b)(6)’s 4-level enhancement when a firearm was found in the same trailer as a small amount' of heroin, two digital scales, and drug paraphernalia. See
The Court does not conclude, however, that there is sufficient evidence to support a finding, by a preponderance of the evidence, that Barela possessed stolen goods. A preponderance of the evidence does not support a finding that the items were stolen, as the only thing supporting that finding is that there was a large number of itehis1 that were unopened. Possessing unopened items, without more,' is insufficient for the’ Court to find, by a preponderance-of the evidence, that the items were stolen.
. IT IS ORDERED that: (i) the Defendant’s Objections to Presentence Report, filed June 6, 2014 (Doc. 116), are sustained in part and overruled in part; and (ii) Defendant Isaac Barela is sentenced to 46-months imprisonment.
Notes
. Barela initially requested the Court to vary from the Guidelines sentencing range, see Objections at 5-6, but later withdrew this this request, see Unopposed Motion to Withdraw Request for Variance, filed June 25, 2014 (Doc. 28).
. The Court's citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final version may have slightly different page and/or line numbers.
. Attorneys and courts often say that the "Guidelines” are advisory, but it appears more appropriate to say that the Guideline ranges are advisory. Gall v. United States,
The Court must adhere to the following three-step sequence when sentencing a criminal defendant: first, determining the appropriate sentencing range on the basis of Guidelines’ chapters 2 through 4; next, applying Guidelines-contemplated departures based on parts 5H and 5K; and, only then, varying from the Guidelines framework on the basis of the § 3553(a) factorstaken as a whole. The Court must follow this sequence, because: (i) the Guidelines expressly provide for it, and courts must still consult the Guidelines, even if they will subsequently vary from them in the third step of the sequence; and (ii) adherence to this sequence is the only way to give effect to 18 U.S.C. § 3553(e).
The Supreme Court held in United States v. Booker that "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing,”543 U.S. at 264 ,125 S.Ct. 738 , but further expounded in Kimbrough v. United States that "courts may vary [from the Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines,”552 U.S. 85 , 101,128 S.Ct. 558 ,169 L.Ed.2d 481 (2007)(alteration in original)(internal quotation marks omitted). In theory, this freedom could mean that a district court may excise individual portions of the Guidelines along the way as it performs an otherwise by-the-book Guidelines analysis, end up with a sentence with built-in variances, and never even know what sentence a true, rigid Guidelines application would yield. In practice, however, appellate courts expect district courts to: first obtain the true Guidelines' sentence range and circumscribe their. United States v. Booker-granted authority to post-Guidelines analysis "variances.” Irizarry v. United States,553 U.S. 708 , 710-16,128 S.Ct. 2198 ,171 L.Ed.2d 28 (2008). A- district court that attempts to vary from U.S.S.G. § lBl.l's basic sequence most likely acts procedurally unreasonably. See Gall v. United States, 552 U.S. 38, 51,128 S.Ct. 586 ,169 L.Ed.2d 445 (2007) (holding that a sentence is procedurally reasonable if “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,' treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence” (emphasis added)).
United States v. Nolf,
. Although the Tenth Circuit stated in United States v. Washington that “the issue of a higher than a preponderance standard is foreclosed in this circuit,”
. United States v. Hendrickson is ah unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedentiál, but may be cited for their persuasive value.”). The Tenth Circuit has stated;
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist,the court in its disposition, we allow a citation to that decision.
United States v. Austin,
. U.S.S.G. § 2K2.1(b)(5) is now U.S.S.G. § 2K2.1(b)(6). See U.S.S.G. § 2K2.1.