United States District Court, D. New Mexico
December 16, 2016
UNITED STATES OF AMERICA, Plaintiff,
PETER PAGAN, Defendant.
P. Martinez United States Attorney Paul H. Spiers Rumaldo R.
Armijo Assistant United States Attorneys United States
Attorney's Office District of New Mexico Albuquerque, New
Mexico Attorneys for the Plaintiff
Stephen P. McCue Federal Public Defender Albuquerque, New
Mexico Attorney for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Objection to Presentence Report, filed November 2, 2016 (Doc.
49). The Court held a hearing on November 8, 2016. The
primary issue is whether the Court should sustain Defendant
Peter Pagan's objection to a 2-level enhancement under
United States Sentencing Guideline (“U.S.S.G.”)
§ 2B3.1(b)(4)(B) for “physical restraint” in
his commission of his armed robbery against Lotaburger in
Albuquerque, New Mexico. Because Pagan did not (i) bind the
victims; (ii) impede egress from the Lotaburger; (iii) tell
the victims not to move; or (iv) impede drive-thru customer
W.H. from leaving the parking lot, the Court concludes that
the sentencing enhancement for physical restraint is
inapplicable, and the Court therefore sustains Pagan's
Court takes its facts from the Presentence Investigation
Report, filed October 13, 2016 (Doc. 45)(“PSR”).
Pagan was born in San Francisco, California, to Marcos
Pagan-Cartiagano, age fifty, and to Roxanne Ruiz, age
forty-five. See PSR ¶ 52, at 15. He resided in
San Francisco until age seven, when his family relocated to
Albuquerque, New Mexico, to be closer to relatives.
See PSR ¶ 52, at 15. Pagan advises that he has
lived in the Albuquerque area ever since that move.
See PSR ¶ 52, at 15. Pagan's parents are
married, and he has a good relationship with them.
See PSR ¶ 53, at 15. Pagan has five siblings,
who are in good health and with whom Pagan spoke regularly
before his incarceration. See PSR ¶¶
54-55, at 15. Pagan reports that he had a good childhood and
had all the basic necessities growing up. See PSR
¶ 55, at 15. He denies suffering any abuse as a youth,
but he recalls seeing one of his older brothers rape his
younger brother. See PSR ¶¶ 55-56, at 15.
has been in an “on-off” relationship with Amanda
Blea, age twenty-four, since he was approximately fifteen
years old. PSR ¶ 58, at 15. Pagan and Blea have been
residing together since approximately 2014, see PSR
¶ 58, at 16, and they have two children together,
see PSR ¶ 59, at 16. Blea and the two children
are in good health. See PSR ¶ 59, at 16. Pagan
has another daughter with Audry Chavez, and that daughter
lives with Pagan's mother. See PSR ¶ 60, at
16. Pagan also has a daughter with Ashley Nicole Cordova, who
resides with her mother in Albuquerque and whom Pagan has
neither seen nor financially supported for approximately one
and a half years. See PSR ¶ 61, at 16. Pagan
denies any other children or marriages. See PSR
¶ 61, at 16.
dropped out of high school during his eighth or ninth grade
year and has not obtained his GED. See PSR ¶
80-81, at 18. Evaluation reports reflect that Pagan falls in
the borderline range for intellectual functioning at around
the third percentile, and he was found incompetent three
times in state proceedings as a juvenile. See PSR
¶ 82, at 19. Pagan has a learning disorder, see
PSR ¶ 71, at 17, and psychological testing found him to
have deficits in judgment, reasoning, impulse control,
understanding of cause-and-effect, and an ability to plan
ahead, see PSR ¶ 70, at 17.
was employed for six months at Sonic Drive-in Restaurant in
Albuquerque before 2006. See PSR ¶ 85, at 19.
He began receiving Social Security Disability (SSD) in the
amount of $700.00 a month at age seventeen, but he did not
reapply for SSD after turning eighteen. See PSR
¶ 86, at 19. The Torrance County Detention Center in
Estancia, New Mexico, has employed Pagan as a Game Porter
since August, 2016. See PSR ¶ 84, at 19.
coming of age, Pagan has been arrested and convicted four
times, including this conviction. See PSR ¶
31-33, at 8-9. First, on February 6, 2014, Pagan was arrested
for receiving stolen property in relation to a stolen
vehicle. See PSR ¶ 31, at 8. He was convicted
and sentenced to 364 days custody with 239 days suspended.
See PSR ¶ 31, at 8. Second, on July 15, 2015,
Pagan was arrested for shoplifting beer from a convenience
store. See PSR ¶ 32, at 8. He was convicted of
shoplifting $250.00 or less and was sentenced to two days in
jail with credit for time served and seventy-seven dollars in
fees converted to jail. See PSR ¶ 32, at 8.
Third, also on July 15, 2015, Pagan was arrested and charged
with (i) assault with intent to commit a violent felony; (ii)
attempt to commit armed robbery; (iii) six counts of assault
with a deadly weapon; and (iv) shooting at a dwelling or
occupied building. See PSR ¶ 33, at 8-9. He was
convicted only of criminal damage to property over one
thousand dollars, and he was sentenced to eighteen months of
suspended custody, one year of parole, eighteen months of
supervised probation, and $175 in fees. See PSR
¶ 33, at 8.
minor, Pagan was arrested four times. See PSR
¶¶ 38-41, at 9-11. First, on February 1, 2006,
Pagan was arrested and charged with four counts related to
graffiti. See PSR ¶ 38, at 9. The prosecuting
attorney dismissed the charges. See PSR ¶ 38,
at 9. Second, on January 16, 2008, Pagan was arrested and
charged with four counts -- aggravated assault, conspiracy to
commit aggravated assault, shooting at a dwelling or occupied
building, and unlawful possession of a handgun by a minor.
See PSR ¶ 39, at 10. A psychiatric/diagnostic
evaluation was done, and the prosecutor dismissed the
charges. See PSR ¶ 39, at 10. Third, on January
8, 2010, Pagan was arrested and charged with seven counts --
(i) battery upon a peace officer (two counts); (ii) unlawful
possession of a handgun by a minor; (iii) unlawful carrying
of a deadly weapon; (iv) possession of alcoholic beverage by
a minor; (v) possession of drug paraphernalia; and (vi)
concealing identity. See PSR ¶ 40, at 10. The
court found Pagan to be incompetent and dismissed all counts.
See PSR ¶ 40, at 10. Fourth, on June 23, 2010,
Pagan was arrested and charged with twelve counts -- (i)
kidnapping (two counts); (ii) conspiracy to commit
kidnapping; (iii) armed robbery; (iv) conspiracy to commit
armed robbery; (v) aggravated battery with a deadly weapon
(two counts); (vi) shooting at or from a motor vehicle,
causing or risking great bodily harm; and (vii) aggravated assault
with a deadly weapon (four counts). See PSR ¶
41, at 11. A psychiatric/diagnostic evaluation was performed,
Pagan was found to be incompetent, and the prosecutor was
unwilling to pursue the charges (nolle prosequi).
See PSR ¶ 41, at 11.
reaching age eighteen, Pagan was arrested another nine times
but was not charged as an adult. See PSR
¶¶ 42-50, at 11-14. First, on March 8, 2012, Pagan
was arrested and charged with two counts -- battery and as an
accessory -- in relation to an assault on another inmate at
Bernalillo County Metropolitan Detention Center in
Albuquerque, New Mexico. See PSR ¶ 42, at 11.
The prosecutor was unwilling to pursue the charges (nolle
prosequi). See PSR ¶ 42, at 11. Second, on May
9, 2013, Pagan was arrested for receiving or transferring a
stolen motor vehicle. See PSR ¶ 43, at 11-12.
The court dismissed the charge without prejudice.
See PSR ¶ 43, at 11. Third, on December 3,
2013, Pagan was arrested and charged with two counts --
battery against a household member and criminal damage to
property of a household member. See PSR ¶ 44,
at 12. The case was dismissed without prejudice. See
PSR ¶ 44, at 12. Fourth, on February 6, 2014, Pagan was
arrested and charged with two counts -- receiving or
transferring stolen motor vehicles and driving without a
license. See PSR ¶ 45, at 12. The prosecutor
was unwilling to pursue the charges, and the case was
dismissed. See PSR ¶ 45, at 12. Fifth, on June
5, 2014, Pagan was arrested and charged with aggravated
battery. See PSR ¶ 46, at 13. The court
dismissed the case when a witness failed to appear.
See PSR ¶ 46, at 13. Sixth, on August 8, 2014,
Pagan was arrested and charged with shoplifting alcohol from
a Wal-Mart. See PSR ¶ 47, at 13. The case was
dismissed for lack of prosecution. See PSR ¶
47, at 13. Seventh, on August 13, 2014, Pagan was arrested
and charged with two counts -- robbery and conspiracy to
commit robbery. See PSR ¶ 48, at 13. The case
was dismissed without prejudice when the victim, a necessary
witness, was uncooperative. See PSR ¶ 48, at
13. Eighth, on June 27, 2015, Pagan was arrested and charged
with assault against a household member. See PSR
¶ 49, at 14. The case was dismissed when the prosecution
was unable to proceed. See PSR ¶ 49, at 14.
Ninth and last, on July 20, 2015, Pagan was arrested and
charged with two counts -- larceny and receiving stolen
property. See PSR ¶ 50, at 14. The case was
dismissed without prejudice. See PSR ¶ 50, at
January 27, 2015, Pagan attempted to rob Blake's
Lotaburger, a fast food restaurant, in Albuquerque.
See PSR ¶ 10, at 4. He grabbed a firearm from
his sweatshirt and pointed it at two Lotaburger employees,
demanding money from the cash register. See PSR
¶ 10, at 4. The employees were unable to open the cash
register, and Pagan shot one round into the ceiling above
their heads. See PSR ¶ 10, at 4. Pagan then
demanded money again. See PSR ¶ 10, at 4. The
Lotaburger manager opened the restaurant's back door and
told a drive-thru customer to call law enforcement.
See PSR ¶ 10, at 4. Pagan ran out of the
restaurant, and the drive-thru customer followed him in an
attempt to get Pagan's description. See PSR
¶ 10, at 4. Pagan then shot about nine rounds into the
drive-thru customer's truck, hitting the front
driver's door, the rear door, the driver's side bed
of the truck, and a front tire. See PSR ¶ 10,
at 4. The drive-thru customer was uninjured and returned to
the restaurant in fear of being shot. See PSR ¶
10, at 4.
provisions of the Mandatory Victim Restitution Act of 1996,
18 U.S.C. § 3663A, apply to this offense. See
PSR ¶ 14, at 4. On October 3, 2016, the shift manager at
Blake's Lotaburger at the time of Pagan's robbery
reported that the restaurant had suffered a financial loss
for the damage to the building and the loss of business
resulting from early closure of the restaurant that day.
See PSR ¶ 15, at 4. The shift manager expressed
interest in providing a verbal victim impact statement, but
has not has responded to a message from the United States
Probation Office (“USPO”), see PSR
¶ 15, at 4-5, but Blake's Lotaburger's human
resource department advised the USPO that restitution will be
requested after it has determined the amount and obtained
documentation, see PSR ¶ 16, at 5. Neither of
the employees manning the cash registers at the time of the
robbery currently work at Blake's Lotaburger.
See PSR ¶ 15, at 5. The USPO left messages with
one of the former cashiers, but has not received a response.
See PSR ¶ 15, at 5. The USPO made contact with
the other former cashier, but that cashier declined to
provide a statement. See PSR ¶ 16, at 5.
charges to which Pagan has pled guilty in this case are: (i)
Interference with Commerce by Threats or Violence; and (ii)
Using, Carrying, and Discharging a Firearm During and in
Relation to a Crime of Violence, and Possessing and
Discharging a Firearm in Furtherance of Such Crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(iii). On November
17, 2015, the United States filed an Indictment in the United
States District Court for the District of New Mexico charging
Pagan with two counts. See Indictment at 1-2, filed
November 17, 2015 (Doc. 3). The first count is Interference
with Commerce by Threats or Violence. See Indictment
at 1-2. The second count is Using, Carrying, and Discharging
a Firearm During and in Relation to a Crime of Violence, and
Possessing and Discharging a Firearm in Furtherance of Such
Crime. See Indictment at 2. The Court will discuss
the remainder of the procedural background in three sections.
First, it will describe Pagan's plea agreement. Second,
it will describe the PSR's sentencing guidelines
calculations. Third, it will discuss Pagan's objection to
the PSR and the attendant hearing on the objection.
Pagan's Plea Agreement.
August 8, 2016, Pagan pled guilty to the two-count
Indictment. See Plea Agreement, filed August 8, 2016
(Doc. 42). In the plea agreement, Pagan specifically admitted
to the following facts related to the charges against him in
At about 8:30 p.m. on January 27, 2015, I entered a
Blake's Lotaburger located at 6215 San Antonio Drive NE,
Albuquerque, New Mexico. The restaurant was not crowded but
still open for business. I entered the restaurant with a
loaded 9mm handgun with the intention of robbing the
restaurant. When I entered, there was a Blake's employee
mopping the floor and I passed him and headed toward the
ordering station where cash registers are located. There were
Blake's employees by the cash registers and I showed my
firearm as I demanded of the employees money from the cash
drawers. The employees began telling me that they
couldn't open the cash drawers because they didn't
have the key to [sic] them and to show them that I was
serious about my demands for the money and that I meant
business, I fired a round from my handgun into the ceiling of
the restaurant just above the employees and the cash
registers. When it became clear that the employees, F.B.,
E.R., and A.L. could not open the cash drawers and give me
the money, I pocketed my handgun in the pouch of my hooded
sweatshirt and ran out of the Blake's Lotaburger. In the
course of my attempted robbery of the restaurant, I tried to
further the attempt by threatened force, violence, and fear
of injury by displaying and discharging my firearm and as a
result of my attempted robbery, the Blake's Lotaburger
closed for business earlier than usual which had a negative
impact on its ability to conduct business and the sale of
food items which obstructed and affected its ability to
Agreement ¶8, at 4. By signing the plea agreement, Pagan
admitted that there was a factual basis for each element of
the crimes to which he was pleading guilty. See Plea
Agreement ¶ 9, at 4. Furthermore, Pagan agreed that the
Court may rely on any of these facts, as well as facts in the
PSR, to determine his sentence, including but not limited to
the advisory guideline offense level. See Plea
Agreement ¶ 9, at 4-5. In the plea agreement, Pagan
stipulated a specific sentence of 27 months imprisonment as
to Count 1 and 120 months imprisonment as to Count 2, for a
total of 147 months imprisonment. See Plea Agreement
¶ 10a, at 5. The Plea Agreement took into account
Pagan's acceptance of responsibility,  with no further
reduction to occur. See Plea Agreement ¶ 10a,
at 5. Pagan agreed to waive his right to appeal his
conviction or sentence under 28 U.S.C. § 1291 or 18
U.S.C. § 3742, see Plea Agreement ¶ 15, at
8, and waived his right to collaterally attack his conviction
or sentence under 28 U.S.C. §§ 2241 or 2255 except
on the issue of defense counsel's ineffective assistance,
see Plea Agreement ¶ 15, at 8. Pagan recognized
that the Plea Agreement already conferred a benefit upon him,
and agreed not to seek a downward departure or variance from
the specific sentence of 147 months. See Plea
Agreement ¶ 13, at 6.
The PSR's Sentencing Guidelines
states that Pagan's base offense level for a violation of
18 U.S.C. § 1951(a) is 20. See PSR ¶ 20,
at 5. The PSR adds 2 levels under U.S.S.G. 2B3.1(b)(4)(B),
because the USPO states that Pagan “physically
restrained the victim to facilitate commission of the offense
or to facilitate escape . . . .” PSR ¶ 21, at 5.
The PSR subtracts 2 levels under U.S.S.G. § 3E1.1(a) for
Pagan's acceptance of responsibility. See PSR
¶ 26, at 6. The PSR subtracts 1 additional level for
acceptance of responsibility under U.S.S.G. § 3E1.1(b),
because Pagan assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying
authorities of his intention to enter a guilty plea.
See PSR ¶ 27, at 6. The resulting total offense
level in the PSR is 19. See PSR ¶ 28, at 6.
past convictions result in 3 criminal history points.
See PSR ¶¶ 34-35, at 9. Two points derive
from Pagan's receipt of stolen property in 2014 and one
point from Pagan's shoplifting in 2015. See PSR
¶¶ 31-32, at 8. A criminal history score of 3
establishes a criminal history category of II. See
PSR ¶ 35, at 9. The PSR states that, based on a total
offense level of 19 and a criminal history category of II,
the applicable guideline range for Count 1 is 33 months to 41
months imprisonment. See PSR ¶ 92, at 20. The
PSR further states that, based on a total offense level of 19
and a criminal history category of II, the applicable
guideline range for Count 2 is the statutory term of 10
years, which must run consecutively to Count 1, for a total
guideline range of 153 to 161 months. See PSR ¶
92, at 20.
reports that, under 18 U.S.C. § 3583(b), the Court may
impose a term of supervised release for not more than three
years for Count 1 and for not more than five years for Count
2. See PSR ¶ 95, at 20. According to the USPO,
multiple terms of supervised release shall run concurrently.
See PSR ¶ 96, at 20. Under U.S.S.G. §
5D1.2(a), the guideline range for supervised release for
Count 1 is 1 year to 3 years and for Count 2 is 2 years to 5
years. See PSR ¶ 97, at 20. According to the
PSR, Pagan is not eligible for probation on either Count.
See PSR ¶ 98, at 20-21 (citing 18 U.S.C. §
3561(a)(2)-(3)). In light of the offense's nature and
circumstances and Pagan's history and characteristics,
the PSR says that the Court may consider imposing supervision
conditions. See PSR ¶ 101, at 21.
reports that, under 18 U.S.C. § 3571(b), the maximum
fine for Count 1 is $250, 000.00, and the maximum fine for
Count 2 is $250, 000.00. See PSR ¶ 102, at 21.
According to the PSR, a special assessment of $100.00 is
mandatory for Count 1, and another special assessment of one
hundred dollars is mandatory for Count 2. See PSR
¶ 103, at 21. The fine range under the sentencing
guidelines is from $12, 500.00 to $125, 000.00. See
U.S.S.G. §§ 5E1.2(c)(3) and 5E1.2(h)(1).
to the PSR, costs of prosecution shall be imposed on Pagan as
statute requires. See PSR ¶ 105, at 21. The PSR
says that, in determining whether to impose a fine and the
amount of such fine, the Court shall consider, among other
factors, the expected costs to the government of any term of
probation, or term of imprisonment, and term of supervised
release imposed. See PSR ¶ 105, at 21 (citing
U.S.S.G. § 5E1.2(d)(7) & 18 U.S.C. §
3572(a)(6)). The PSR says that these costs may include drug
and alcohol treatment, electronic monitoring, and/or
confinement costs. See PSR ¶ 105, at 21.
According to the PSR, restitution shall be ordered in this
case under 18 U.S.C. § 3663A and U.S.S.G. § 5E1.1.
See PSR ¶¶ 106-07, at 21-22.
probation officer identified Pagan's mental and emotional
condition as potential grounds for departure. See
PSR ¶ 110, at 22. Pursuant to U.S.S.G. § 5H1.3,
mental and emotional conditions may be relevant in
determining whether a departure is warranted, if the
conditions -- individually or in combination with other
offender characteristics -- are present to an unusual degree
and distinguish the case from the typical cases that the
sentencing guidelines cover. See PSR ¶ 110, at
22. During the presentence interview, Pagan reported a
history of Post-Traumatic Stress Disorder
(“PTSD”), Attention Deficit Hyperactive Disorder
(“ADHD”), and Attention Deficit Disorder
(“ADD”). PSR ¶ 111, at 22. A forensic
evaluation diagnosed Pagan with Oppositional Defiant
Disorder; marijuana, alcohol, and inhalant abuse; a learning
disability in reading and writing areas, while ruling out
ADHD. See PSR ¶ 111, at 22. Earlier
psychological testing in 2010 reflected that Pagan was in the
borderline range for intellectual function, and had deficits
in judgment, reasoning, impulse control, ability to plan
ahead, and understanding of cause and effect. See
PSR ¶ 111, at 22. A more recent psychological
evaluation, in 2016, determined that Pagan has a poor
self-image, and that he likely suffers from guilt, despair,
anxiety, and depression, all of which have led to suicide
attempts. See PSR ¶ 112, at 22. Because Pagan has
been in custody in relation to the Blake's Lotaburger
robbery, he has further been diagnosed with opioid
dependence, but the diagnosis ruled out Pagan's
self-reported PTSD. See PSR ¶ 112, at 22.
Juvenile history records indicate that multiple cases were
dismissed after Pagan was found incompetent. See PSR
¶ 112, at 22.
concludes, however, that a downward departure based on mental
and emotional condition is not warranted. See PSR
¶ 113, at 22-23. The PSR states that Pagan will be able
to receive mental health treatment while in the Bureau of
Prisons' custody and while on supervised release.
See PSR ¶ 113, at 23. Furthermore, the PSR says
that Pagan agreed not to seek a downward departure from the
agreed sentence. See PSR ¶ 113, at 22-23. The
PSR notes that Pagan was helping to care for his two children
with Blea before his arrest and that this parental
responsibility may warrant a sentence outside of the advisory
guideline system. See PSR ¶ 114, at 23-24.
Pagan's Objection to the Presentence
November 2, 2016, Pagan filed a Defendant's Objection to
Presentence Report. See Defendant's Objection to
Presentence Report, filed November 2, 2016 (Doc.
49)(“Objection”). Pagan objects to PSR ¶ 21,
which assesses 2 offense levels for “restraint of
victim” under U.S.S.G. § 2B3.1(b)(4)(B).
See Objection at 1. Pagan argues that Application
Note 4 to U.S.S.G. § 2K2.4 states that the Court should
“not apply any specific offense characteristic”
involving a weapon if the case also includes a conviction
under 18 U.S.C. § 924(c). Objection at 1 (quoting
Application Note 4 to U.S.S.G. § 2K2.4). Pagan asserts
that, in light of the fact that this case involves a ten-year
mandatory minimum under 18 U.S.C. § 924(c) for discharge
of a firearm, the 2-level enhancement for restraint of a
victim constitutes impermissible double counting and should
be struck from the PSR. See Objection at 1.
According to Pagan, the factual basis for the restraint of
victim enhancement is the use of the same firearm that is the
basis of the 924(c) count and, as such, is inappropriate.
See Objection at 1-2.
argues that “physically restrained” has a
specific meaning under the sentencing guidelines, which
define it as “the forcible restraint of the victim such
as by being tied, bound, or locked up.” Objection at 2.
Pagan asserts that nothing like that happened when he robbed
the Blake's Lotaburger. See Objection at 2.
According to Pagan, a specific offense characteristic's
purpose is to distinguish between cases based on conduct.
See Objection at 2. As a practical matter, Pagan
argues, cases such as United States v. Miera, 539
F.3d 1232 (10th Cir. 2008), have expanded the definition of
restraint of the victim so broadly that the expansion amount
to judicial amendment of the sentencing guidelines to change
the base offense level for robbery from 20 to 22.
See Objection at 2. Pagan compares the base offense
levels for larceny or theft -- 6 or 7 --with the base offense
level for robbery -- 20, and argues that the level is so much
higher for robbery, because robbery necessarily involves some
amount of threat or violence. See Objection at 2.
Pagan insists that enhancing the base offense level is
inappropriate merely when the victim of a robbery feels that
the very show of force that makes the offense a robbery
“restrains” him or her. Objection at 2. Pagan
urges the Court to honor the specific definition of restraint
of the victim in the sentencing guidelines and to decline to
apply the 2-level enhancement in this case.
final note, Pagan argues that United States v. Miera
requires “something more” than discharging,
brandishing, or displaying a firearm for the restraint of the
victim enhancement to apply. Objection at 3 (quoting 539 F.3d
at 1234). Pagan says that, in United State v. Miera,
the defendants instructed the victims to put their hands up
and not to move. See Objection at 3. Pagan
reemphasizes that he did not issue any direct order to the
victims in this case except for his order for them to hand
over the money. See Objection at 3. Moreover,
according to Pagan, he did not tie, bind, or lock up the
victims. See Objection at 3. Pagan asserts,
therefore, that the case's facts do not support an
enhancement for restraint of the victim.
LAW REGARDING THE SENTENCING GUIDELINES
United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court of the United States of America severed the
mandatory provisions from the Sentencing Reform Act, Pub. L.
No. 98-473, 98 Stat. 1976, 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. at 261.
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
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
(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, §
3553(a) directs sentencing courts to consider: (i) the
Guidelines; (ii) the offense's nature 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),
the Guidelines are no longer mandatory, both the Supreme
Court of the United States and the United States Court of
Appeals for the Tenth Circuit have clarified that, while the
Guidelines are one of several factors which § 3553(a)
enumerates, they are entitled to considerable deference.
See Rita v. United States, 551 U.S. 338, 349
(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)(6). See United States v. Booker, 543 U.S. at
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; Gall v. United
States, 552 U.S. 38, 46-47 (2007); Kimbrough v.
United States, 552 U.S. 85, 90-91 (2007). Instead, the
trial court must undertake the § 3553(a) balancing of
factors without any presumption in favor of the
advisory Guidelines sentence. See Rita v.
United States, 551 U.S. at 351; Gall v. United
States, 552 U.S. at 46-47; Kimbrough v. United
States, 552 U.S. at 90-91.
REGARDING THE BURDEN OF PROOF REQUIRED FOR ENHANCEMENTS UNDER
Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court reaffirmed the principle that it is permissible
for sentencing judges “to exercise discretion -- taking
into consideration various factors relating both to offense
and offender -- in imposing judgment within the range
prescribed by statute.” 530 U.S. at 481. The Supreme
Court cautioned, however, that the Constitution of the United
States of America limits this discretion and that the Sixth
Amendment requires that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. at
490. In Blakely v. Washington, 542 U.S. 296 (2004),
the Supreme Court elaborated on its holding in Apprendi
v. New Jersey, stating that the “statutory maximum
for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant.” 542
U.S. at 303 (emphasis omitted)(citations that, because the
sentencing guidelines are no longer mandatory,
“Apprendi does not apply to the present
advisory-Guidelines regime.” United States v.
Ray, 704 F.3d 1307, 1314 (10th Cir. 2013). See
United States v. Booker, 543 U.S. at 259
(“[W]ithout this provision [of the Guidelines statute]
-- namely, the provision that makes the relevant sentencing
rules mandatory and imposes binding requirements on all
sentencing judges -- the statute falls outside the scope of
Apprendi's requirement.” (alterations
omitted)(internal quotations marks omitted)). The Supreme
Court has recently held that the requirements in Apprendi
v. New Jersey apply to facts that increase a
defendant's mandatory minimum sentence. Alleyne v.
United States, 133 S.Ct. 2151, 2155 (2013).
United States v. Magallanez, 408 F.3d 672 (10th Cir.
2005), the Tenth Circuit held that Blakely v.
Washington and United States v. Booker had not
changed the district court's enhancement-findings
analysis. See United States v. Magallanez, 408 F.3d
at 684-85. United States v. Magallanez involved
plain-error review of a drug sentence in which a jury found
the defendant, Magallanez, guilty of conspiracy to possess
with intent to distribute and to distribute methamphetamine.
See 408 F.3d at 676. As part of its verdict, the
jury, through a special interrogatory, attributed to the
defendant 50-500 grams of methamphetamine; at sentencing,
however, the judge -- based on testimony of the various
amounts that government witnesses indicated they had sold to
the defendant -- attributed 1200 grams of methamphetamine to
the defendant and used that amount to increase his sentence
under the Guidelines. See United States v.
Magallanez, 408 F.3d at 682. The district court's
findings increased the defendant's Guidelines sentencing
range from 63 to 78 months to 121 to 151 months. See
United States v. Magallanez, 408 F.3d at 682-83. The
Tenth Circuit stated that, both before and after
Congress' passage of the Sentencing Reform Act,
“sentencing courts maintained the power to consider the
broad context of a defendant's conduct, even when a
court's view of the conduct conflicted with the
jury's verdict.” United States v.
Magallanez, 408 F.3d at 684. Although United States
v. Booker made the Guidelines “effectively
advisory, ” the Tenth Circuit in United States v.
Magallanez reaffirmed that “district courts are
still required to consider Guideline ranges, which are
determined through application of the preponderance standard,
just as they were before.” 408 F.3d at 685 (citation
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, 519
F.3d 1096, 1105 (10th Cir. 2008)(quoting United States v.
Washington, 11 F.3d 1510, 1516 (10th Cir.
1993)). “[T]he application of an enhancement
. . . does not implicate the Supreme Court's holding in
Apprendi v. New Jersey.” United States v.
Reyes-Vencomo, No. CR 11-2563 JB, 2012 WL 2574810, at *3
(D.N.M. June 26, 2012)(Browning, J.). The Tenth Circuit
applies Apprendi v. New Jersey's requirement
that a fact be submitted to a jury only where the fact would
increase a defendant's sentence “above the
statutory maximum permitted by the statute of
conviction.” United States v. Price, 400 F.3d
844, 847 (10th Cir. 2005). Accord United States v.
Ray, 704 F.3d at 1314. A defendant may only assert an
error under Apprendi v. New Jersey where the fact at
issue increased his sentence beyond the statutory maximum.
See United States v. O'Flanagan, 339 F.3d 1229,
1232 (10th Cir. 2003)(holding that a defendant could not
assert an error under Apprendi v. New Jersey because
“his sentence does not exceed the statutory
maximum”); United States v. Hendrickson, No.
12-5016, 2014 WL 6679446, at *6 (10th Cir. Nov. 25,
2014)(unpublished)(holding that, after Alleyne v. United
States, “[i]t is well-established that sentencing
factors need not be charged in an indictment and need only be
proved to the sentencing judge by a preponderance of the
evidence”). As the Court has noted:
The Court explained that, although the decision of the
Supreme Court of the United States in Alleyne v. United
States, . . . 133 S.Ct. 2151 . . . (2013), expands the
rule from Apprendi v. New Jersey, 530 U.S. 466 . . .
(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,
United States v. Cervantes-Chavez, No. CR 14-0259
JB, 2014 WL 6065657, at *14 (D.N.M. Nov. 3, 2014)(Browning,
Court sustains Pagan's objection to the 2-level
enhancement for physical restraint. The Court concludes that
physical restraint is not an intrinsic element of armed
robbery and, therefore, is not incorporated into the base
offense level for armed robbery under the sentencing
guidelines. Accordingly, the physical restraint enhancement
does not constitute impermissible double counting.
Nevertheless, Pagan did not physically restrain anyone during
his commission of the armed robbery, so the physical
restraint enhancement does not apply to this case.
PHYSICAL RESTRAINT IS NOT INCORPORATED INTO THE ACT OF ARMED
ROBBERY, SO THE PHYSICAL RESTRAINT ENHANCEMENT IS NOT
not every double counting is improper,  the Tenth Circuit
repeatedly has held that enhancements constitute improper
double counting if they replicate an intrinsic element of the
offense being punished. See, e.g.,
United States v. Wolfe, 435 F.3d 1289, 1292 (10th
Cir. 2006); United States v. Reyes Pena, 216 F.3d
1204, 1209 (10th Cir. 2000). Pagan asserts that the 2-level
enhancement for physical restraint constitutes improper
double counting in this case, arguing that physical restraint
is an intrinsic element of armed robbery. See
Objection at 1-2.
Tenth Circuit disagrees. In a 1997 case, the Tenth Circuit
considered a bank robbery in which one of the robbers held a
gun to the security guard's head. See United States
v. Fisher, 132 F.3d 1327, 1328 (10th Cir.
1997)(“Fisher”). In an opinion that
then-Chief Judge Seymour wrote and Judges Porfilio and Murphy
joined, the Tenth Circuit concluded that the robbery did not
intrinsically require the physical restraint of a gun to the
guard's head. See 132 F.3d at 1329. More
recently, the Tenth Circuit again considered a bank robbery,
this time one in which an accomplice blocked the bank door
and ordered the bank occupants not to move. See United
States v. Miera, 539 F.3d at 1233. In an opinion that
Judge Ebel wrote and that Judges Kelly and O'Brien
joined, the Tenth Circuit concluded that blocking the door --
which the Tenth Circuit concluded was a physical restraint --
was not an intrinsic part of the robbery. See 539
F.3d at 1234-36.
Court also addressed whether physical restraint is an
intrinsic element of armed robbery just a few months ago.
See United States v. Duran, 2016 WL 5395276 (D.N.M.
Aug. 8, 2016)(Browning, J.). In that case, the defendants
robbed a Walgreens of oxycodone at gunpoint. See
2016 WL 5395276, at *1. One defendant jumped over the counter
and held a gun to the pharmacist, demanding that she give him
all the oxycodone pills. See 2016 WL 5395276, at *1.
The USPO added a 2-level enhancement for physical restraint,
but Duran -- like Pagan in this case -- objected that
U.S.S.G. § 3A1.3 foreclosed the enhancement, because he
asserted that “physical restraint” is intrinsic
to armed robbery. 2016 WL 5395276, at *1. The Court disagreed
and overruled Duran's objection, concluding that U.S.S.G.
§ 2D1.1 did not specifically incorporate the element of
physical restraint and the enhancement therefore is not
double counting. See 2016 WL 5395276, at *7.
Court sees no reason to diverge from Court of Appeals
precedent or from the position it established a few months
ago. Physical restraint is not an intrinsic element of armed
robbery and, therefore, is not incorporated into the
guideline's base offense level. Accordingly, the 2-level
enhancement for physical restraint does not constitute double
counting in armed robbery cases.
PAGAN DID NOT PHYSICALLY RESTRAIN THE
logical corollary to the above conclusion is that some armed
robberies do not involve physical restraint. To determine
whether physical restraint was present during the robbery, a
court must turn to U.S.S.G. § 1.B1.1. That section
defines physical restraint, for the purposes of the 2-level
enhancement, as “the forcible restraint of the victim
such as by being tied, bound, or locked up.”
See Application Note 1(K) to U.S.S.G. § 1B1.1
considered Fisher in 1997, the Tenth Circuit read
the phrase “being tied, bound, or locked up” as
an indication that keeping someone from doing something is
inherent within the concept of restraint. 132 F.3d at 1329.
Three years later, another bank robbery case allowed the
Tenth Circuit to clarify this stance. See United States
v. Pearson, 211 F.3d 524, 527 (10th Cir. 2000). In that
case, a robber held a gun on two bank employees to keep them
from moving while his accomplice took a third employee to the
bank vault. See 211 F.3d at 527. In an opinion that
Judge Brorby wrote, and that Judges Kelly and Murphy joined,
the Tenth Circuit held that an instruction not to move was an
example of an act that kept others from doing something and,
therefore, was by definition an example of physical
restraint. See 211 F.3d at 527. The Tenth Circuit
contrasted this verbal order with the mere act of brandishing
a gun, which in isolation does not keep anyone from doing
[W]e agree with the Ninth Circuit, and conclude that physical
restraint with a gun is conduct distinct from either the
actual discharge, “otherwise use, ” or
brandishing, display or possession of a gun, as contemplated
by § 2B3.1(b)(2)(A)-(F), and § 2K2.4, comment.
(n.2). In other words, those acts alone do not automatically
create a situation where physical restraint of an individual
occurs. Instead, something more must be done with the gun to
physically restrain them.
United States v. Pearson, 211 F.3d at 527. The Tenth
Circuit confirmed this distinction eight years later when it
considered Miera, holding that blocking a bank door
to prevent egress -- but not brandishing a gun by itself --
was an example of physical restraint. See 539 F.3d
case, Pagan brandished a gun, discharged rounds into the
restaurant ceiling, and riddled drive-thru customer
W.H.'s car with bullets. See PSR ¶ 10, at
4. Pagan did not, however, tie, bind, or lock up anyone. Nor
did he physically restrain anyone even under the Tenth
Circuit's expansive interpretation of the term. Pagan did
not instruct the Blake's Lotaburger employees not to
move, nor did he keep anyone from leaving the premises.
Indeed, the manager exited the restaurant through the back
door, and drive-thru customer W.H. followed Pagan when Pagan
left the premises -- Pagan did not follow W.H. See
PSR ¶ 10, at 4.
ORDERED that Peter Pagan's Objection to Presentence
Report, filed November 2, 2016 (Doc. 49), is sustained.
In his capacity as a game warden, Pagan
has been responsible for distributing games to fellow
detainees. See PSR ¶ 84, at 19.
The PSR reports this charge as
“Shooting At Or From A Motor Vehicle - Great Bodily
Harm.” PSR ¶ 41, at 11. It does not clarify
whether Pagan inflicted or risked inflicting “great
bodily harm.” PSR ¶ 41, at 11. The probation
office requested an incident report but did not receive one.
See PSR ¶ 41, at 11.
Pagan provides the following statement
accepting responsibility for the offense:
On January 27, 2015, I tried to rob the Lota Burger
[sic] on San Antonio in Albuquerque. I was scared and
frustrated and fired a shot into the ceiling of the store. I
never did get any money and I just ran away.
I am very sorry to have Dated this. I don't know
what I was thinking. I was just desperate and stupid. I am
sorry that I scared the guys who were working there and I am
just glad nobody got hurt.
I know I have a drug problem. I did really well when I
was in treatment or under supervision and I would like to get
more help to keep this sort of thing from happening
PSR ¶ 17, at 5.
The PSR sets forth these conditions in
Attachment A to the PSR. See Attachment A to the
Presentence Report, filed October 13, 2016 (Doc.
The PSR caveats that Pagan's
suicide attempts may be a means of seeking attention rather
than a true attempt at death. See PSR ¶112, at
Attorneys and courts often say that the
“Guidelines” are advisory, but it appears more
appropriate to say that the resulting Guideline ranges are
advisory. Gall v. United States, 522 U.S. at 46
(“As a result of our decision [in United States v.
Booker], the Guidelines are now advisory [.]”);
United States v. Leroy, 298 F. App'x 711, 712
(10th Cir. 2008)(unpublished)(“[T]he Guidelines are
advisory, not mandatory.”); United States v.
Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)(“[T]he
sentence ultimately imposed by the district court was based
on a correctly calculated Guidelines range, a stated
consideration of the § 3553(a) factors, and an
understanding that the Guidelines are advisory.”). The
Court must consider the Guidelines, see Gall v. United
States, 522 U.S. at 46 (“It is . . . clear that a
district judge must give serious consideration to the extent
of any departure from the Guidelines . . . .”), and
must accurately calculate the Guidelines range, see Gall
v. United States, 522 U.S. at 49 (“[A] district
court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.”). The
Court is not mandated, however, to apply a sentence within
the calculated omitted)(internal quotation marks omitted). In
United States v. Booker, the Supreme Court held
Guidelines range. See United States v.
Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir.
2005)(“[D]istrict courts post-Booker have
discretion to assign sentences outside of the
Guidelines-authorized range . . . . ”). Accord
United States v. Chavez-Rodarte, No. CR 08-2499 JB, 2010
WL 3075285, at *2-3 (D.N.M. July 16, 2010)(Browning,
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) factors taken 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. §
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, ” 11 F.3d at 1516, the Tenth Circuit has since
classified its holding as leaving “open the possibility
that due process may require proof by clear and convincing
evidence before imposition of a Guidelines enhancement that
increases a sentence by an ‘extraordinary or
dramatic' amount, ” United States v. Ray,
704 F.3d at 1314 (quoting United States v. Olsen,
519 F.3d at 1105). See United States v. Olsen, 519
F.3d at 1105 (affirming the preponderance of the evidence
standard for sentencing facts that increase a sentence in the
“‘ordinary case'” (quoting United
States v. Washington, 11 F.3d at 1516)). The Tenth
Circuit has not yet found that an “extraordinary or
dramatic” instance warrants a higher standard of proof
for certain facts that enhance a defendant's sentence.
United States v. Olsen, 519 F.3d at 1105 (explaining
that it need not determine whether a higher standard of proof
is required to sentence a defendant for committing perjury in
relation to a grand jury investigation, because the
enhancement did not require the district court to determine
that the defendant committed murder, but only that he
obstructed a homicide investigation); United States v.
Constantine, 263 F.3d 1122, 1125 n.2 (10th Cir.
2001)(affirming a preponderance of the evidence standard for
facts that enhance a defendant's offense level 4 levels);
United States v. Valdez, 225 F.3d 1137, 1143 n.2
(10th Cir. 2000)(rejecting the defendant's argument that
a dramatic increase in a sentence because of a sentencing
judge's finding of additional amounts of methamphetamine
associated with acquitted charges entitled the defendant to a
clear-and-convincing evidence standard at sentencing, and
noting that the Tenth Circuit “foreclosed by binding
precedent” this argument); United States v.
Washington, 11 F.3d at 1516 (finding that a district
court need not find by any more than a preponderance of the
evidence the amount of cocaine a defendant distributed, even
though its findings increased the defendant's sentence
from twenty years to consecutive forty-year terms).
United States v. Hendickson is
an 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 precedential,
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
United States v. Austin, 426 F.3d 1266, 1274
(10th Cir. 2005)(citations omitted). The Court finds that
United States v. Hendrickson; United States v.
Powers, 578 F. App'x 763 (10th Cir.
2014)(unpublished); United States v. Schmidt, 353 F.
App'x 132 (10th Cir. 2009)(unpublished); United
States v. Leroy, 298 F. App'x 711 (10th Cir.
2008)(unpublished); United States v. Banda, 168 F.
App'x 284 (10th Cir. 2006)(unpublished); United
States v. Duncan, 99 F. App'x 196 (10th Cir.
2004)(unpublished); United States v. Hinshaw, 166
F.3d 1222, 1999 WL 9762 (10th Cir. Jan. 12, 1999)(table
opinion)(unpublished); and United State v. Webster,
No. 94-3186, 68 F.3d 484 (10th Cir. Oct. 20, 1995)(table
opinion)(unpublished), have persuasive value with respect to
material issues, and will assist the Court in its preparation
of this Memorandum Opinion and Order.
“Most circuits have held that
double counting is permissible where each of the multiple
guidelines sections applicable to a single act serves a
distinct purpose or represents a discrete harm, or where the
guideline specifically contemplates this, or where the
enhancements reflect ‘conceptually separate'
notions relating to sentencing.” Author's
Discussion § 6 to U.S.S.G. § 1.B1.1 (internal