United States District Court, D. Columbia.
CARLOS GAYTAN (1:13-cr-00117-CKK All Defendants), Defendant, Pro se, Winton, NC.
For CARLOS GAYTAN (1:13-cr-00117-CKK All Defendants), Defendant: Pleasant S. Brodnax , III, LEAD ATTORNEY, Washington, DC.
For USA (1:13-cr-00117-CKK All Defendants), Plaintiff: Bernard J. Delia, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Special Proceedings Section, Washington, DC; Thomas A. Gillice, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Criminal Division, Washington, DC; Zia Mustafa Faruqui, U.S. ATTORNEY'S OFFICE, Asset Forfeiture/Money Laundering Section, Washington, DC.
Carlos Gaytan (1:14cv52), Petitioner, Pro se, Winton , NC.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Presently before the Court is Defendant Carlos Gaytan's  Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. The Defendant, who is proceeding pro se, requests that the Court reconsider and reduce his sentence because the Court imposed a lesser sentence on his codefendant, Alicia Gaytan. Upon a searching review of the parties' submissions, the
relevant authorities, and the record as a whole, the Court finds that the Defendant is not entitled to the requested relief. Accordingly, the Court shall DENY the Defendant's Motion to Vacate Sentence.
A. Factual Background
Defendant pled guilty to one count of Conspiracy to Distribute and Possess With Intent to Distribute One Kilogram or More of Heroin and Five Hundred Grams or More of Cocaine in violation of 21 U.S.C. § § 846 and 841(a)(1)(A)(i) & (b)(1)(B)(ii). The underlying facts in this case to which the Defendant agreed in a signed statement and during the plea colloquy under oath are as follows: In April of 2012, Daniel Zintura-Flores [hereinafter " Zintura" ] offered to give Defendant a large quantity of cocaine to sell. Gov't. Factual Proffer (Apr. 23, 2013) at 5, ECF No. . Defendant approached Juan Gaytan [Defendant's brother] and Sergio Cuadros-Menchaca, both of whom were living in the same apartment as Defendant, and asked if they would be able to distribute a large quantity of cocaine. Id. Both men said they could, and encouraged Defendant to get cocaine from Zintura. Id. Zintura gave Defendant a kilogram of cocaine and indicated the price, which was either $32,000 or $33,000. Id. Defendant gave the kilo to his brother and Cuadros-Menchaca. Id. They " cut" or diluted the cocaine with a supplement they purchased at a GNC store. Id. They distributed all of the cocaine, and then gave Defendant the money to pay Zintura for the cocaine. Id. at 5-6. Zintura came to Defendant's apartment to collect the money. Id. at 6.
In May of 2012, Zintura and Maria Gaytan [Defendant's aunt] brought two kilograms of cocaine to Defendant in his apartment. Id. Zintura said he wanted Defendant to pay him back $32,000 for each of those kilos. Id. Juan Gaytan [Defendant's brother] and Cuadros-Menchaca were able to distribute the first kilogram. Id. However, when they opened the second kilogram, it appeared to them to be of poor quality. Id. As a result, they were not able to distribute that kilogram. Id. Defendant attempted to return the kilogram to Zintura, but was not immediately able to do so, and so that kilogram of poor quality cocaine was discovered and seized by the FBI during the search warrant executed at the apartment shared by Defendant, Juan Gaytan, and Cuadros-Menchaca on the day of his arrest. Id. In addition, the FBI recovered over $11,000 in cash and a device used to press cocaine into a kilogram form from that apartment. Id.
In May of 2012 at 5:05 p.m., Maria Gaytan, using Zintura's phone, asked Defendant if he had any customers for " the stronger type, the most expensive type?" Id. She stated that she could not say the name but it starts with an " E," and that they are being offered some. Id. Defendant asked the price. Id. In this conversation Maria Gaytan inquired as to whether Defendant would be able to distribute heroin. Id. The call refers to heroin; the " H" in " heroin" is a silent H in Spanish and the word, phonetically, begins with an " E" sound, and heroin is much more expensive than cocaine. Id. At 5:45 p.m., Maria Gaytan asked Defendant if he " found that out for her." Id. Defendant needed to be reminded of what she was talking about. Id. Maria Gaytan sounded out " ERO" (as if to sound out the Spanish pronunciation of heroin). Id. She restated that it is double the price. Id. Maria Gaytan went on to tell Defendant that " it" would happen tomorrow
for sure. Id. A tractor-trailer with Texas plates carrying a load of heroin arrived the next day and parked outside Defendant's stepmother's home. Id. at 6-7. In a later conversation at 6:41 p.m., Defendant told Maria Gaytan that he did not find anyone but Defendant was waiting for Juan to call him. Id. at 7. This conversation was in reference to Maria Gaytan's earlier inquiry regarding heroin. Id.
On May 21, 2012, at 7:34 p.m., Defendant spoke to Maria Gaytan, who indicated that they were working on the stuff she told him about. Id. She then said that their stuff would get here on Wednesday. Id. Zintura is heard in the background saying cars. Id. Maria Gaytan then revised her statement to say that the cars would arrive on Wednesday. Id. Maria Gaytan then stated that the stuff that had arrived was the other stuff she told him about, the other cars. Id. Defendant understood that Maria Gaytan meant the heroin they had spoken about had arrived. Id. Defendant was to understand that the referenced " stuff" that would arrive Wednesday would be cocaine which would be available to Defendant to sell. Id.
On May 22, 2012, codefendants Sunny Jo Schwinn and Andrew Slavinski drove the Dodge Durango loaded with the first group of nine or ten kilograms of heroin to New York City. Id. Zintura, Maria Gaytan, and Alejandro Chapa followed some distance behind in another vehicle. Once in New York City, the heroin was transferred to others for redistribution. Id.
That day at 12:42 p.m., Defendant called Zintura's phone and spoke to Maria Gaytan, and asked if she had parking. Id. He informed Maria Gaytan that he had offered to pay $600, since there would be enough. Id. This was in reference to finding a safe place to park a vehicle; at that time Maria Gaytan and Zintura were engaged in the first of the two planned trips to New York City to distribute heroin sent by Guadalupe Galaviz. Id.
Upon returning from New York City, the group began making arrangements to make another trip the following day to transport the remaining kilograms of heroin to New York City. Id. at 8. On May 23, 2012, at approximately 9:45 a.m., agents on surveillance observed Zintura arrive at the Knights Inn in Laurel, Maryland, driving the white Durango. Id. Zintura knocked on the door of one of the hotel rooms. Id. Acting pursuant to previously issued arrest warrants, agents moved in, arresting Zintura, as well as Sunny Jo Schwinn and Andrew Slavinski, who were in the hotel room. Id. Acting pursuant to court-authorized search warrants, agents seized and searched the white Dodge Durango. Id. In a hidden compartment in the left rear wheel well of the vehicle, law enforcement discovered thirteen packages, each weighing approximately one kilogram and each separately wrapped, which contained a white substance consistent with cocaine. Id. Though each package field tested positive for cocaine, laboratory analysis proved 12 of the packages to be over 91% pure heroin, and one kilogram to be " compound 6," a heroin derivative and a schedule 1 controlled substance. Id.
A search of the bedroom shared by Zintura and Maria Gaytan revealed over $198,000 in cash. Id. at 9. In addition, law enforcement found a ledger recording amounts owed by and paid to Zintura by his cocaine customers. Id. The defendant's name appears in that ledger. Id.
The Government filed an Information on April 16, 2013, on the sole count of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin and five hundred grams or more of cocaine hydrochloride in ...