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United States v. Gross

United States District Court, D. New Mexico

December 16, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BILLY GROSS, Defendant.

          Damon P. Martinez United States Attorney Paul H. Spiers Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorney for Plaintiff

          Kari Converse Federal Public Defender Albuquerque, New Mexico Attorney for Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Objections to Presentence Investigation Report, filed November 2, 2016 (Doc. 36)(“Objections”). The Court held a hearing on November 22, 2016. The primary issue is whether the Plaintiff United States of America breached its plea agreement with Gross that a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) “is inapplicable to the sentencing in this matter.” Presentence Investigation Report ¶ 4, at 3, filed October 16, 2016 (Doc. 34)(“PSR”). Because the Court concludes that the United States' approval of the PSR's application of the 4-level enhancement under § 2K2.1(b)(6)(B) was a breach of the United States' plea agreement, and that the Court should recuse itself from Gross' case as a result of the breach, the Court will not further rule on Gross' Objections. The Court orders that the United States withdraw the Response by the United States to the Defendant's Sentencing Memorandum and Request for a Sentence Variance, filed October 17, 2016 (Doc. 41)(“Response”), and resubmit a response that corresponds with its obligation in ¶ 8(b) of the Plea Agreement, see Plea Agreement ¶ 8(b), at 5-6, filed August 18, 2016 (Doc. 31)(“Plea Agreement”). The Court also orders Gross to withdraw his Reply RE Government Response to Objections to PSR, filed November 18, 2016 (Doc. 45)(“Reply”), and resubmit a reply in response to the United States' new response ordered above. Further, the Court orders that the United States withdraw the Letter from Presiliano Torrez, filed October 18, 2016 (Doc. 46)(“Torrez Letter”). The Court will thus recuse itself and have this matter submitted to a new judge untainted by the arguments made in the withdrawn response.

         FACTUAL BACKGROUND

         In the Plea Agreement, Gross admitted the following facts:

         On August 7, 2015, I drove a Chevrolet pickup truck at a high rate of speed in the area of Foothill Road SW and Arenal Road SW in Albuquerque, New Mexico which is an area within Bernalillo County. My high-rate of speed driving caught the attention of a Bernalillo County Sheriff s Office (BCSO) deputy and the deputy tried to traffic stop me so I sped up to get away from him. Though I didn't know that the truck that I was driving was stolen, I figured that the deputy was trying to stop me because there was something wrong with the truck and I was not interested in being traffic stopped so I tried to evade the deputy. In the course of my evasion, I ditched the pickup truck and then ran, jumped fences and ran some more along a ditch bank. As I ran along the ditch bank I got rid of my gun that I was carrying - a working Jimenez Arms, model J.A., 22, .22LR caliber semi-automatic pistol, serial number 1125499. I kept with me the pistol's magazine loaded with four Winchester brand .22LR caliber cartridges. (I understand that having possession of this gun and the ammunition had an affect [sic] in interstate commerce because I understand that for the gun to be in my possession in New Mexico interstate commerce had to have been affected since guns and ammunition are not manufactured in New Mexico and that in order for them to be present in New Mexico interstate commerce had to have brought them here.) Tiring from fleeing and being chased by the deputy, I tried to lose him by crouching behind a vehicle parked in the driveway of a residence on Foothill Road. This crouching behind a parked vehicle didn't work and the deputy caught up with me and arrested me. The deputy recovered, from the ground around where I was crouched hiding, the pistol's magazine loaded with four rounds of Winchester brand .22LR caliber ammunition. I told the deputy, when he asked about it, that I had a gun but that I threw it away on the ditch bank during the ditch bank chase because I knew that my felony conviction history and my firearm possession on that day (or on any other day at any time) carried negative implications with regard to a future felony conviction such as described within and by this plea agreement. The deputy went back and recovered my pistol.

         On August 7, 2015, I had previously sustained three felony convictions in the State of New Mexico, a 2005 conviction for Possession with Intent to Distribute Controlled Substances, a 2007 conviction for Possession of Burglary Tools and another 2007 conviction for Rceiving [sic] or Transferring a Stolen Vehicle.

         Plea Agreement at 3-4. Further, according to the PSR, “[i]n the immediate area to where the defendant was arrested, deputies located a magazine to a firearm with four 22 mm rounds of ammunition, a small baggie with black tar substances (heroin), and keys with a Chevrolet symbol on them.” PSR ¶ 10, at 4. “The defendant also advised while running he dropped heroin and the firearm because he did not want to pick up new charges.” PSR ¶ 11, at 4.

         PROCEDURAL BACKGROUND

         On August 18, 2016, the United States and Gross entered into a plea agreement. See Plea Agreement at 1. In the Plea Agreement, the United States stipulated:

In view of the Memorandum Opinion and Order issued in United States vs. Lopez, 2015WL5090699 and in the ambiguous context of the defendant stating that he believed that the pickup truck referred to in the admission of facts contained in paragraph six in the plea agreement was not a stolen vehicle in a stolen status, it is regarded that the United States Sentencing Guidelines § 2K2.1(b)(6)(B) is inapplicable to the sentencing in this matter.

         Plea Agreement ¶ 8(b), at 5-6 (emphasis added). The United States Probation Office (“USPO”) then disclosed its first PSR on October 19, 2016. See PSR at 1. In the PSR, the USPO recognized the provision in ¶ 8(b) of the Plea Agreement, providing the language word-for-word in the PSR's recitation of the charge and conviction. See PSR ¶ 4, at 3. The PSR, though, applied the enhancement nonetheless, stating:

Specific Offense Characteristics:
The defendant used or possessed the firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense. The defendant was in possession of a stolen motor vehicle; however, both parties have agreed the defendant did not know the vehicle was stolen and an increase would not apply pursuant to a Memorandum and Opinion Order in U.S. v. Lopez (2015WL5090699). It is also noted, the defendant was also in possession of heroin (felony offense) during the instant offense while in possession of the firearm, therefore an increase of four offense levels is applied. USSG 2K2. (b)(6)(B).

PSR ¶ 18, at 5.

         The USPO disclosed a revised PSR on November 7, 2016. See Presentence Investigation Report, filed November 7, 2016 (Doc. 37)(“Revised PSR”). The Revised PSR makes some minor unrelated additions, but includes the same provision referencing ¶ 8(b) of the Plea Agreement, as well as the provision that, nonetheless, applies the enhancement on the basis of the heroin possession. See Revised PSR ¶ 4, at 4; ¶ 29, at 6-7. For clarity, regarding the revisions, the USPO provides:

The offense conduct section of the report was amended. This section includes the statement made by the defendant, as reported in a deputy's police report and that it was also heard on the arresting deputy's belt tape recording device. An acceptance of responsibility statement was added, as provided by the defendant and his attorney. The warrant for arrest in case number D-202-CR-201602724 was amended to reflect the defendant's warrant was based on Grand Jury Indictment, and not for failing to appear. Minor corrections to the name of the defendant's girlfriend and age of the defendant's children were amended to reflect current age and proper spelling. Also attached to the re-disclosed Presentence Report is an upDated:tachment A to reflect the updated conditions of supervision. As of November 1, 2016, the 2016 guidelines manual went into effect and all mandatory, standard, and special conditions of supervision were modified. Therefore, an upDated:tachment A to the presentence report is attached to reflect the new conditions of supervision, which the Court may consider imposing in this case.

         Revised PSR at 1. Using the slightly different language from that within the PSR, the Revised PSR applies the enhancement, despite referencing ¶ 8(b) of the Plea Agreement, stating:

Specific Offense Characteristics:
The defendant used or possessed the firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense. The defendant was in possession of a stolen motor vehicle; however, both parties have agreed the defendant did not know the vehicle was stolen and an increase would not apply pursuant to a Memorandum and Opinion Order in U.S. v. Lopez (2015WL5090699). The United States Probation Office holds the position the defendant did know, or should have known the vehicle he was in, was stolen by the evidence provided through discovery. It is also noted, the defendant was also in possession of heroin (felony offense) during the instant offense while in possession of the firearm, therefore an increase of four offense levels is applied. USSG 2K2. (b)(6)(B).

         Revised PSR ¶ 29, at 6-7. Thus, because Gross was “in possession of the firearm” in connection with his “possession of heroin (felony offense), ” the USPO nonetheless applies the enhancement.

         Revised PSR ¶ 29, at 6-7. Notably, the Revised PSR, like the PSR, notes that, while Gross was allegedly also “in possession of a stolen motor vehicle, ” the parties “have agreed the defendant did not know the vehicle was stolen and an increase would not apply pursuant to a Memorandum Opinion and Order in U.S. v. Lopez (2015WL5090699).” Revised PSR ¶ 29, at 6-7. The Revised PSR, however, further maintains that Gross knew the vehicle was stolen. See Revised PSR ¶ 29, at 6-7.

         On November 2, 2016 -- before the USPO disclosed its Revised PSR -- Gross filed his Objections to the PSR. Gross, in part, objects to the 4-level enhancement under § 2K2.1(b)(6)(B), which applies to possession of any firearm “in connection to another felony.” U.S.S.G. § 2K2.1(b)(6)(B)(“If the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense . . . .”). As discussed, both the Revised PSR and PSR ostensibly apply the enhancement, despite recognizing ¶ 8(b) of the Plea Agreement, because Gross was “in possession of the firearm” in connection with his “possession of heroin (felony offense).” Revised PSR ¶ 29, at 6-7; PSR ¶ 18, at 5; Addendum to the Presentence Report at 1, filed November 7, 2016 (Doc. 39)(“Addendum”).

         The Addendum to the Revised PSR disagrees with the parties' agreement that Gross did not know the vehicle was stolen and addresses the application of § 2K2.1(b)(6)(B) in that context. See Addendum at 1-2. Accordingly, the Addendum provides:

The United States Probation Office maintains the position, the application of USSG § 2K2.1(b)(6)(B) is appropriate. The vehicle the defendant was driving was stolen. The defendant claims he did not know the vehicle was stolen; however, he is unable to provide specifics of a vehicle purchase. Furthermore, evidence in discovery provides several pieces of information that infers the vehicle was stolen. The evidence clearly shows the defendant eluded law enforcement in a dangerous and reckless manner and began doing this behavior, just prior to law enforcement engaging their emergency lights. The defendant further evaded law enforcement by running on foot. Second, when arresting officers began questioning the defendant about why he ran, the defendant reported to law enforcement it was because he did not have registration for the vehicle. Third, the vehicle is painted white, over an original blue color. Fourth, the steering column in the vehicle is damaged and held together by black tape. Lastly, the VIN did not match the paperwork to the vehicle. It is clear, the defendant did know or did have reason to know the vehicle he was driving, was stolen. The defendant, through counsel also rejects the application of USSG § 2K2.1(b)(6)(B) based on the possession of heroin. The objection notes “simple possession of heroin” is not a felony offense under federal law. It is noted the defendant was charged with Possession of a Controlled Substance (heroin) in violation N.M. Stat. 30-31-23D (4th degree felony), punishable by up to 18 months imprisonment. Application Note 14(c) of USSG § 2K2.1 describes “another felony offense” for the purposes of subsection (b)(6)(B), means any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained. The defendant, through counsel contends there is insufficient evidence before the Court to show the possession of the firearm facilitated his possession of a stolen motor vehicle and possession of heroin. Several circuits have held that “possession of a firearm” may facilitate an offense by emboldening the possessor to commit the offense. The defendant was in possession of a firearm and a loaded magazine. A reasonable person could find that the firearm gave the defendant a sense of security -- emboldening him -- to venture from his home with drugs and a stolen motor vehicle. Courts have also held that if a drug user chooses to carry his illegal drugs out into public with a firearm, there are many ways in which the weapon can facilitate the drug offense and dangerously embolden the defendant.

         Addendum at 1-2. Thus, despite the Plea Agreement's stipulation that “it is regarded that the United States Sentencing Guidelines § 2K2.1(b)(6)(B) is inapplicable to the sentencing in this matter, ” the Revised PSR and Addendum nonetheless applies § 2K2.1(b)(6)(B), because Gross was “in possession of the firearm” in connection with his “possession of heroin (felony offense).” Revised PSR ¶ 29, at 6-7.

         The United States filed its Response on October 17, 2016. See Response at 1. In the Response, the United States provides: “The United States has reviewed the presentence report and agrees with the analysis therein. The Defendant's total adjusted offense level is 23 and his criminal history category is IV, thus resulting in a United States Sentencing Guideline (USSG) sentencing range of 70 months to 87 months of imprisonment.” Response ¶ 1, at 1-2. The Response does not thereafter address the provision in ¶ 8(b) of the Plea Agreement or the USPO's application of § 2K2.1(b)(6)(B), which results in the offense level calculation of 23. See Response at 1-6.

         Gross filed his Reply to the Response on November 18, 2016. See Reply at 1. The Reply maintains, in relevant part, that “[t]he government conceded that this enhancement was inapplicable, ” in the Plea Agreement, and thus “should be held to its agreement.” Reply at 2-3. The Reply thus requests the offense level be adjusted to 19 after removal of the 4-level enhancement. See Reply at 5.

         On November 18, 2016, the Court, after reviewing the relevant filings, issued a minute order requesting more information from the parties. See Court's Minute Order, filed November 18, 2016 (Doc. 42)(“Court's Minute Order”). The Court's Minute Order provides:

pursuant to the direction of District Judge James O. Browning, requesting that in preparation for today's sentencing the United States and the United States Probation Office identify specifically which statute and/or statutes they contend the Defendant was violating when he possessed the firearm, such that U.S.S.G. Section 2K2.1(b)(6)(B) applies. The United States and the U.S.P.O. should then give the Court a copy of the statute or statutes so that the Court can determine whether all the elements of the alleged crime or crimes are met.

         Court's Minute Order. Both the USPO and United States responded to the Court's Minute Order in preparation for the hearing. See Second Addendum to the Presentence Report, filed November 18, 2016 (Doc. 43)(“Second Addendum”); Torrez Letter (providing the United States' Response in a document signed by Assistant United States Attorney Presiliano A. Torrez). The Second Addendum answers:

The United States Probation Office has applied a four level increase to the defendant's offense level pursuant to USSG 2K2.1(b)(6)(B) as the defendant was driving a stolen motor vehicle while he was a felon in possession of a firearm. Furthermore, the defendant was in possession of heroin while he was a felon in possession of a firearm. The defendant was charged with Receiving/Transferring a Stolen Motor Vehicle (NM Statute 30-16D-4) and Possession of a Controlled Substance (NM Statute 30-31-23D). It is under these premises USSG 2K2.1(b)(6)(B) was applied.

         Second Addendum at 1. The Torrez Letter answers:

         Pursuant to the Court's request, the United States identifies the criminal statutes which we contend the defendant violated when he possessed the firearm in this case. In that connection, the United States identifies the following statutes:

1. NMSA § 30-31-6(B)(l0), which identifies heroin as a Schedule I substance;
2. NMSA § 30-31-23(A), which makes it unlawful for a person to possess a controlled substance . . .;
3. NMSA § 30-31-23(F)(4), which makes it unlawful to possess any amount of a controlled substance enumerated in Schedule I. Hence, the possession of any amount of heroin in the State of New Mexico is a felony.

Torrez Letter at 1.

         Before sending out the Court's Minute Order, the Court researched Gross' objection to the PSR's application of the enhancement on the basis of Gross' possession of heroin. The Objections rely on Lopez v. Gonzalez, 549 U.S. 47 (2006), in which the Supreme Court of the United States held that, while a drug conviction was a felony under state law, where it was a misdemeanor at federal law, the conviction would not qualify as a controlled substance aggravated felony disqualifying the defendant from discretionary cancellation of removal. See Objections at 6. See also Lopez v. Gonzalez, 549 U.S. at 55, 60 (“In sum, we hold that a state offense constitutes a ‘felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law.”). The Court's research indicated that the “defendant was charged with Possession of a Controlled Substance (heroin) in violation of N.M. Stat. 30-31-23D (4th degree felony), punishable by up to 18 months imprisonment.” Addendum at 2. Application Note 14(C) addresses this situation, stating that “‘another felony offense, ' for purposes of subsection (b)(6)(B), means any federal, state, or local offense, other than explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or conviction obtained.” U.S.S.G. § 2K2.1 App. Note 14(C). N.M. Stat. Ann. § 30-31-23(E) is the operative statutory provision with respect to schedule I narcotics, referencing N.M. Stat. Ann. § 30-31-23(D), and provides that possession “of a narcotic drug enumerated in Schedule I or II or a controlled substance analog of a narcotic drug enumerated in Schedule I or II is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.” N.M. Stat. Ann. § 31-18-15 provides that the basic sentence of imprisonment “for a fourth degree felony, [is] eighteen months imprisonment.” N.M. Stat. Ann. § 30-31-6(B)(10) identifies heroin as a Schedule I narcotic.

         Gross also objected to § 2K2.1(b)(6)(B)'s application, because “Probation alleges no nexus between either offense and the firearm.” Objections at 7. Regarding the drug offense, Gross argues that “personal quantities of drugs are NOT included as an offense where the connection is presumed from the proximity, and nothing in the police interrogation of Mr. Gross or any other report remotely suggests any connection . . . .” Objections at 7. The Court's research in this respect indicated that the Application Notes appeared to address the situation here, providing that the enhancement applies “in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs . . . because the presence of the firearm has the potential of facilitating another felony offense . . . .” U.S.S.G. § 2K2.1 App. Note 14(B)(emphasis added). The Tenth Circuit, as well, has stated that carrying a firearm has the potential to facilitate mere possession of drugs. See United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012). The Defendant in United States v. Justice “was carrying methamphetamine on his person.” 679 F.3d at 1255. The Tenth Circuit stated that “a reasonable person could find that the firearms gave him a sense of security emboldening him to venture from his home with drugs that someone might wish to take from him by force.” United States v. Justice, 679 F.3d at 1255.

When the defendant is out and about, with drugs on his person and a loaded firearm within easy reach, one can infer that the proximity of the weapon to the drugs is not coincidental and that the firearm “facilitated, or had the potential of facilitating, ” the drug offense by emboldening the possessor.

United States v. Justice, 679 F.3d at 1255.

         The Court held a hearing on November 22, 2016. See Transcript of Hearing, taken November 22, 2016 (“Tr.”).[1] The Court began the hearing by indicating that “I am prepared to proceed, but it seems to me that we may have an issue about whether I'm the appropriate judge if the United States has breached its plea agreement[.] [I]t would seem to me that I might need to determine that issue [first]. . . .” Tr. at 1:25-2:9 (Court). Accordingly, Gross maintained that “it's very clear in the plea agreement that the Government agreed not to assert that Mr. Gross possessed . . . a gun in the course of another felony . . . and I'd ask if the Government would be willing to withdraw its ...


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