United States District Court, D. New Mexico
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 ...