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United States v. Pagan

United States District Court, D. New Mexico

December 16, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
PETER PAGAN, Defendant.

          Damon 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

         THIS 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 objection.

         FACTUAL BACKGROUND

         The 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.

         Pagan 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.

         Pagan 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.

         Pagan 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.[1] See PSR ¶ 84, at 19.

         Since 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.

         As a 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;[2] 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.

         After 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 14.

         On 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.

         The 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.

         PROCEDURAL BACKGROUND

         The two 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.

         1. Pagan's Plea Agreement.

         On 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 this case:

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 conduct commerce.

         Plea 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, [3] 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.

         2. The PSR's Sentencing Guidelines Calculations.

         The PSR 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.

         Pagan's 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.

         The PSR 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.[4]

         The PSR 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 ΒΆ 103, at 21. The fine range under the ...


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