Opinion
Cr. No. 20-00020-WJ
11-02-2020
UNITED STATES of America, Plaintiff, v. Fredricke D. ESPY, Jr., Defendant.
Benjamin J. Christenson, US Attorney's Office, Albuquerque, NM, for Plaintiff. Emily P. Carey, Office of the Federal Public Defender, Albuquerque, NM, for Defendant.
Benjamin J. Christenson, US Attorney's Office, Albuquerque, NM, for Plaintiff.
Emily P. Carey, Office of the Federal Public Defender, Albuquerque, NM, for Defendant.
ORDER OVERRULING DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT
William P. Johnson, CHIEF UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on Defendant's Objections to the Presentence Report, filed March 23, 2020 (Doc. 32 ). The Court held a hearing on October 26, 2020. The primary issues are: (i) whether the PSR correctly applies USSG § 2K2.1(a)(3) in its calculation of a base offense level of 22; and (ii) whether the PSR correctly assigns one criminal history point to Defendant for his Texas Tax Code violation. For reasons discussed below, the Court OVERRULES both objections and finds that the Presentence Report ("PSR") (Doc. 28) and Addendum (Doc. 39) accurately reflect Defendant's base offense level and criminal history.
Defendant also raises a number of relatively minor objections. Doc 32 at 2–3. The Government does not oppose these corrections and amendments to the PSR. Doc. 36 at 16. In response to these objections, the Probation Officer amended three paragraphs of the PSR, but determined that the other portions will remain unchanged at this time. Doc. 39.
BACKGROUND
On September 18, 2019, a Bureau of Indian Affairs officer stopped a truck traveling through the Laguna Indian Reservation. Upon consent of the driver, Richard Overton, the officer searched the vehicle. PSR ¶ 12. During his search, the officer found four large duffle bags containing 60.72 kilograms of marijuana. PSR ¶ 13. The passenger, Fredricke Espy, Jr. ("Defendant"), reported that he was the owner of a black backpack located in the backseat of the vehicle. Inside Defendant's backpack was a loaded, black Springfield Armory XD-45 semiautomatic handgun, owned by Defendant and later determined to be stolen. PSR ¶ 13–14. Officers also found a large-capacity magazine stored in the center console of the truck , located directly between the passenger and driver seat. Doc. 36 at 3. Subsequently, officers found a second gun, a loaded black Glock 23 in the glove box directly in front of the passenger seat. PSR ¶ 14. The large-capacity magazine is compatible with the Glock 23. Doc. 36 at 3.
For the purposes of this Order, the Court will assume the large-capacity magazine compatible with the Glock 23 was found in the center console, directly between the driver and passenger seats. See Doc. 36-1, Ex. 5 (picture showing the large-capacity magazine in the center console).
Defendant had previously been convicted in New Mexico for the felony offenses of robbery and conspiracy to commit robbery. PSR ¶ 33. Defendant also has a prior misdemeanor conviction related to selling cigarettes without a valid license in violation of the Texas Tax Code. PSR ¶ 34.
On January 2, 2020, pursuant to a Rule 11(c)(1)(B) plea agreement, Defendant entered a guilty plea to one count of being a felon in possession of a firearm in violation of 18 USC § 922(g)(1). See Docs. 19 & 22. After Defendant entered his guilty plea, a United States Probation Officer prepared the PSR. Paragraph 20 calculates a base offense level of 22 under USSG § 2K2.1(a)(3) based on Defendant's prior felony conviction and the involvement of a Glock 23 and large capacity magazine. Paragraph 34 assigns one criminal history point to Defendant's misdemeanor Cigar and Tobacco Products Tax violation. Consequently, the PSR determines that Defendant's total offense level is 25 under the Guidelines and that he is in criminal history category III. PSR ¶¶ 30, 37. This determination results in an advisory Guidelines imprisonment range of 70 to 87 months. PSR ¶ 73.
DISCUSSION
The Sentencing Guidelines require a District Court to "resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(i)" USSG § 6A1.3. In turn, Rule 32(i) requires the Court to "make ... a finding" as to disputed matters that will affect the sentence." Fed. R. Crim. P. 32(i)(3). The Tenth Circuit has repeatedly held that a District Court may not satisfy its fact-finding obligation under Rule 32 by simply adopting the presentence report. United States v. Guzman , 318 F.3d 1191, 1198 (10th Cir. 2003) (citing United States v. Farnsworth , 92 F.3d 1001, 1011 (10th Cir. 1996) ). In keeping with its duties, the Court will address each of Defendant's substantive objections.
I. Enhancement of Base Offense Level Under USSG § 2K2.1(a)(3)
Under USSG § 2K2.1(a)(3), a base offense level of 22 applies if:
(A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 USC § 5845(a) ; and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense[.]
Defendant argues this enhancement is inapplicable because (A) New Mexico robbery does not qualify as a crime of violence and (2) his offense did not involve a semiautomatic firearm that is capable of accepting a large capacity magazine. The Government maintains that both criteria are satisfied in this case.
A. Crime of Violence
The term "crime of violence" incorporates the definition given in USSG § 4B1.2. See USSG § 2K1.2 cmt. n.1. Section 4B1.2, in turn, defines "crime of violence," as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another." USSG § 4B1.2(a)(1). Because the definition of "crime of violence" contained in USSG § 4B1.2(a) is virtually identical to the Armed Career Criminal Act's ("ACCA") definition of "violent felony," the Tenth Circuit applies ACCA case law to this Guidelines provision. United States v. Tiger , 538 F.3d 1297, 1298 (10th Cir. 2008) ; see also 18 USC § 924(e)(2)(B)(i).
New Mexico's robbery statute prohibits takings "by use or threatened use of force or violence." NMSA § 30-16-2. In United States v. Garcia , the Tenth Circuit held that a New Mexico robbery conviction qualified as a "violent felony" under the ACCA. 877 F.3d 944, 953 (10th Cir. 2017). Defendant contends that Garcia was incorrectly decided. Defendant cited to three then-pending Tenth Circuit appeals addressing the status of a New Mexico robbery conviction. In the period since Defendant filed his objections with the Court, the Tenth Circuit decided all three cases, holding in each that a New Mexico robbery conviction qualifies as a violent felony under the ACCA. See United States v. Manzanares , 956 F.3d 1220, 1225–26 (10th Cir. 2020) ; United States v. Velasquez , 810 Fed.Appx. 655, 659 (10th Cir. 2020) ; United States v. Martinez , 802 Fed.Appx. 421, 423 (10th Cir. 2020). Given the Tenth Circuit's unequivocal stance, the Court concludes that Defendant's prior conviction satisfies USSG § 2K2.1(a)(3)(B).
B. Involvement of a Semiautomatic Firearm and Large Capacity Magazine
Defendant's second argument against application of USSG § 2K2.1(a)(3) relates to the involvement of Mr. Overton's Glock 23 and large-capacity magazine (hereafter referred to as "the enhancement firearm"). The Government attributes the enhancement firearm to Defendant as "relevant conduct" under USSG § 1B1.3(a)(1)(B). Defendant argues that (i) the provision does not encompass Defendant's felon in possession conviction and (ii) even if applicable, Mr. Overton's possession of the enhancement firearm does not satisfy the § 1B1.3(a)(1)(B) requirements.
To find that Mr. Overton's enhancement firearm is "relevant conduct," the Court must first determine whether Mr. Overton and Defendant were engaged in "jointly undertaken criminal activity." This term refers to "a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy." USSG § 1B1.3(a)(1)(B). The underlying facts support a finding that, more likely than not, Mr. Overton and Defendant were jointly engaged in criminal activity, specifically a common criminal endeavor to transport, via truck, 60.72 kilograms of marijuana into New Mexico. Given the large quantity seized, the Court has no difficulty finding, by a preponderance of the evidence, possession with the intent to distribute. See 21 USC § 841(a)(1). Possession alone would be enough. See 21 USC § 844. Defendant did not submit any objection to paragraph 22 of the PSR, which imposes a four-level enhancement under USSG § 2K2.1(b)(6)(B) for Defendant's possession of a firearm "in connection with another felony offense." PSR ¶ 22. A sentencing court "may accept any undisputed portion of the presentence report as a finding of fact." Fed. R. Crim. P. 32(i)(3)(A). Therefore, the Court finds that Mr. Overton and Defendant engaged in a jointly undertaken criminal activity, that is possession with intent to distribute 60.72 kilograms of marijuana.
In the case of jointly undertaken criminal activity, a defendant's base offense level must account for "all acts and omissions of others that were (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity" insofar as they occurred during the commission of the offense of conviction. USSG § 1B1.3(a)(1)(B). Defendant asserts that the provision limits liability to the "offense of conviction," here, felon in possession in violation of 18 USC § 922(g)(1) and argues that Mr. Overton's possession of the enhancement firearm is not conduct relevant to Defendant's illegal possession of his own pistol. The Court acknowledges the plain language of USSG § 1B1.3(a)(1)(B) and its ability to limit the scope of relevant conduct attributable to a defendant. Moreover, Court recognizes that the Government has proffered only cases involving drug related convictions. However, the circumstances of Defendant's arrest make clear that Mr. Overton's possession of the enhancement firearm was (1) within the scope and (2) in furtherance of the criminal activity; and was (3) reasonably foreseeable to Defendant. First, in defining the scope of the jointly undertaken criminal activity, the Court looks to Mr. Overton and Defendant's implicit agreement to engage in the activity, fairly inferred from the pair's conduct. See USSG § 1B1.3, cmt. n.3(B). Here, all relevant persons and items, i.e., the participants, the firearms and accessories, and the drugs, were in Mr. Overton's truck at the time of Defendant's arrest. Furthermore, the relevant actions, i.e, the transportation of illegal drugs, Mr. Overton's possession of the enhancement firearm, and Defendant's illegal possession of his pistol, were occurring simultaneously within the truck.
The modest scope, one occurrence on September 18, 2019, permits a finding that Mr. Overton's conduct was in furtherance of the criminal activity. The enhancement firearm was within arms’ reach of Defendant and Mr. Overton as they transported the marijuana load—it was readily available for protecting the pair's contraband cargo, intimidation, or any other purposes related to their ongoing criminal activity. See United States v. Hall , 473 F.3d 1295, 1304 (10th Cir. 2007) (noting that items like firearms "are generally viewed as ‘tools of the trade’ " for drug traffickers in that they provide a "means for the distribution of illegal drugs") (quoting United States v. Martinez , 938 F.2d 1078, 1083 (10th Cir. 1991) ).
The final requirement, reasonable foreseeability, does not require any finding of actual knowledge. See United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991) (allowing a sentencing court "to attribute to a defendant weapons possessed by his codefendants if the possession of weapons was known to the defendant or reasonably foreseeable by him") (emphasis added). In United States v. Morales , the Tenth Circuit concluded that possession of firearms, even when such possession is not in plain view, can be a reasonably foreseeable act in the context of drug trafficking. 232 Fed.Appx. 800, 803–05 (10th Cir. 2007). In Morales , agents seized firearms from the defendant's drug trafficking partner, located in the partner's bedroom closet. Id. at 804. The Tenth Circuit validated the view that the firearms were reasonably foreseeable to the defendant based on, in part, there being no evidence in the record to suggest that the partner attempted to conceal the presence of the firearms from the defendant or took any special steps to limit the defendant's access to them. Id. A similar lack of evidence exists here. In addition to the low threshold of "reasonably foreseeable," the Government has proffered evidence that Defendant, at the time of his arrest, likely knew about Mr. Overton's possession of the enhancement firearm. In dialogue recorded as the arresting officer reported dispatch information about Defendant's pistol, Mr. Overton asks Defendant, "Is that mine or yours?" conveying the fact that he, too, had a gun in the car. Defendant reacts casually, without surprise, and says, "Probably mine," strongly suggesting he already knew about the other gun.
The Morales defendant asserted that his partner's firearms were "under lock and key." The Court rejected that assertion because there was no evidence in the record to support its veracity. Morales , 232 Fed.Appx. at 804 n.2.
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In light of the factors above, Mr. Overton's possession of the enhancement firearm is relevant conduct under USSG § 1B1.3(a)(1)(B). Thus, the PSR correctly concludes that Defendant's offense involved a semiautomatic firearm capable of accepting a large-capacity magazine. This fact, coupled with Defendant's prior felony, necessitates a finding that the two-level enhancement under USSG § 2K2.1(a)(3) is appropriate.
II. Assignment of One Criminal History Point to Defendant's Violation of the Texas Cigar and Tobacco Products Tax Provision
In May of 2018, Defendant was convicted of violating the Texas Cigars and Tobacco Products Tax Code. PSR ¶ 34. He was sentenced to six days in jail and ordered to pay a $500 fine and $282 in court costs. Id. Pursuant to USSG § 4A1.1(c), the PSR assigned Defendant one criminal history point for this conviction. Defendant argues this violation should not count toward his criminal history because it is similar in nature to the excluded offenses listed in USSG § 4A1.2(c) —specifically, driving without a valid license, and fish and game violations.
When determining whether an unlisted offense is similar to one listed under § 4A1.2(c), "the court should use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishment imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct." United States v. Archuleta , 865 F.3d 1280, 1290 (10th Cir. 2017) (quoting USSG § 4A1.2 cmt. n.12(A)). Applying these factors, the Court cannot find that Defendant's Tax Code violation is sufficiently similar to the cited-to license violations excluded under § 4A1.2(c).
Defendant's violation of the Texas Tax Code is a Class A misdemeanor, the most severe category of misdemeanor under Texas law. See Tex. Penal Code § 12.21 – 12.23. Class A misdemeanors in Texas carry potential penalties of up to one year in jail and a fine of up to $4,000. Id. at § 12.21. The excluded offenses, other than the involvement of permits and licenses, bear little similarity to Defendant's violation. Driving without a valid license in Texas is a Class C misdemeanor, punishable only by a fine not to exceed $500. Tex. Transp. Code § 521.457(f) ; Tex. Penal Code § 12.23. Similarly, someone who hunts or fishes in Texas without the required license is guilty of a Class C Parks and Wildlife misdemeanor. See Tex. Parks & Wild. Code §§ 42.025, 46.015. The punishment is a fine of not less than $25 and no more than $500. Id. § at 12.406. Defendant submits that both of the excluded violations can amount to Class B or A misdemeanors if certain aggravating factors are present. Because Defendant's violation did not involve aggravating factors, the Court will not consider such enhancements in its analysis. Defendant's Tax Code violation made him eligible for incarceration, and he received a six-day sentence. Had Defendant received a citation for driving, hunting, or fishing without a violation, jail time would not have been an option. These distinctions show that Archuleta factors (i) and (ii) do not support a finding of similarity. In turn, Archuleta factors (iii) and (iv) also counsel against a finding of similarity. The PSR lists the elements of Defendant's violation as: (1) the defendant intentionally and knowingly possessed cigarette products; (2) in a retail capacity; (3) without a valid permit as required by the Texas Tax Code. PSR ¶ 34; see also Tex. Tax Code § 155.207(1) (defining offense); Texas Crim. Jury Charges § 15:470 (Permit Violations) (defining "possession" as "a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate control"). The mere presence of a mens rea requirement contrast sharply to driving without a license, which, as Defendant acknowledges, generally does not require any culpable state of mind. See e.g., Tex. Transp. Code § 521.457 (defining the offense, in part, as (1) the person operates a motor vehicle on a highway (2) after the person's driver's license has been canceled or has expired). The heightened mens rea requirement shows a critical difference in elements. Moreover, it demonstrates, in conjunction with the authorized and imposed jail term, that Defendant's Tax Code violation indicates a level of culpability beyond that of the typical license-related offense.
The Court will not analyze factor (v), the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct. The strong showings of dissimilarity under the first four factors provide the Court a basis for finding that that Defendant's Tax Code violation is not equivalent to the license violations excluded by § 4A1.2(c). See United States v. Perez de Dios , 237 F.3d 1192, 1198 (10th Cir. 2001) (emphasizing the flexibility of this analysis and cautioning against a formulaic application); see also United States v. Griffin , 763 Fed.Appx. 782, 786 (10th Cir. 2019) (concluding the district court did not err in distinguishing between disturbing the peace and openly outraging public decency; "[t]he two crimes may have some overlap, but [they] are sufficiently distinct—both in severity and nature—that they are not clearly equivalent"). Therefore, the PSR correctly assigns one criminal history point to Defendant's Tax Code violation.
CONCLUSION
For the reasons set forth in this Memorandum Opinion and Order, the Court OVERRULES Defendant's objections to the enhancement set forth in paragraph 20 of the PSR pursuant to USSG § 2K2.1(a)(3). The Court OVERRULES Defendant's objections to the assignment of one criminal history point in paragraph 34 of the PSR pursuant to USSG § 4A1.1(c).
Therefore, the Court finds that Defendant's correctly calculated guideline sentence is offense level 25, criminal history category is III, which results in an advisory Sentencing Guideline range of 70–87 months. The Court shall proceed to reset Defendant's final sentencing hearing by separate notice.