United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's Objections
to the Presentence Report Concerning Prior Conviction (Doc.
29), and Defendant's Objections to Proposed Conditions of
Supervised Release in the Presentence Report (Doc. 30). On
September 7, 2016, the Court continued the sentencing hearing
and ordered counsel to submit supplemental briefs. No
supplemental briefs were filed and the sentencing hearing has
been reset for April 4, 2017. Having considered the
submissions of counsel and being fully advised, the Court
will overrule Defendant's Objections.
Indictment charged Defendant with (1) being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2); and (2) possession of a
firearm with an obliterated serial number, in violation of 18
U.S.C. §§ 922(k) and 924(a)(1)(B). (Doc. 12.) On
November 6, 2013, Plaintiff pleaded guilty to both counts
pursuant to a plea agreement. (Doc. 23.) The plea agreement
stipulated that Defendant would be sentenced to fifteen
years, or 180 months. (Id.) The plea agreement was
negotiated based on the assumption that Defendant would be
classified as an armed career criminal. (Doc. 26.)
Subsequently, it was determined that Defendant should not be
classified as an armed career criminal and Defendant's
advisory guideline sentencing range was amended to 110 to 120
months. (Id.) On February 18, 2015, Defendant filed
an unopposed Motion to Withdraw Plea Agreement Only, in which
he asked to proceed to sentencing based on his guilty plea,
and requested that the Court impose a sentence of 110 months.
(Id.) On September 12, 2016, the Court granted
Defendant's Motion to Withdraw Plea Agreement Only. (Doc.
Presentence Report grouped the two counts and determined that
the base offense level for the crime of being a felon in
possession of a firearm was 24 because Defendant had
committed that offense “subsequent to sustaining at
least two felony convictions for either a crime of violence
or a controlled substance offense.” U.S.S.G. §
2K2.1(a)(2). (See also PSR ¶15). Notably, the
Presentence Report found that Defendant had three prior
convictions that qualify as crimes of violence: (1)
retaliation against a federal officer by threatening or
injuring a family member; (2) conspiracy to commit robbery;
and (3) armed robbery. (PSR ¶15). After assessing a
four-level special-offense-characteristic increase because
the firearm had an obliterated serial number, see
U.S.S.G. § 2K2.1(b)(4)(B), the Presentence Report
credited Defendant with 3 points for acceptance of
responsibility and concluded that his total offense level was
25. Due to his prior convictions, Defendant was placed in
criminal history category VI. A total offense level of 25 and
a criminal history category VI result in a guideline
sentencing range of 110 to 120 months.
objects to the conclusion that his prior conviction for
conspiracy to commit robbery qualifies as a crime of violence
for purposes of U.S.S.G. § 2K2.1(a)(2). (Doc. 29.) The
Government responds that Defendant's prior conviction for
conspiracy to commit robbery qualifies as a crime of violence
within the meaning of U.S.S.G. § 2K2.1(a)(2). (Doc. 33.)
Additionally, Defendant objects to the standard conditions of
release. (Doc. 30.) However, at the hearing of September 7,
2016, defense counsel acknowledged that the proposed
conditions were standard. The Government filed a response
stating that the proposed conditions of release are proper.
Defendant has at least two prior felony convictions that
qualify as crimes of violence.
asserts that his prior conviction for conspiracy to commit
armed robbery in violation of New Mexico law does not qualify
as a crime of violence within the meaning of U.S.S.G. §
2K2.1(a)(2). It is not necessary to determine whether this
prior conviction qualifies as a crime of violence, however,
because Defendant does not dispute that he has two other
felony convictions that qualify as crimes of violence. (Doc.
§ 2K2.1(a)(2) provides that a base offense level of 24
applies “if the defendant committed any part of the
instant offense subsequent to sustaining at least two felony
convictions of either a crime of violence of a controlled
substance offense . . . .” U.S.S.G. § 2K2.1(a)(2).
Defendant does not dispute that his prior felony convictions
of (1) retaliation against a federal officer by threatening
or injuring a family member, and (2) armed robbery qualify as
crimes of violence within the meaning of U.S.S.G. §
2K2.1(a)(2). In that Defendant has at least two prior felony
convictions that qualify as crimes of violence, the
Presentence Report correctly determined that Defendant's
base offense level is 24.
The special conditions of release proposed in the Presentence
Report are proper.
objects to several standard conditions of supervised release
proposed in the Presentence Report including (1) obtaining
the probation officer's permission before leaving the
jurisdiction; (2) reporting to the probation officer; (3)
being truthful and following the instructions of the
probation officer; (4) supporting his dependents and meeting
family responsibilities; (5) maintaining lawful employment;
(6) reporting changes in residence to the probation officer;
(7) refraining from the excessive use of alcohol; and (8) not
frequenting places where controlled substances are illegally
sold, used, distributed, or administered. (Doc. 30.)
courts have broad discretion to impose special conditions of
supervised release. See United States v. Mike, 632
F.3d 686, 692 (10th Cir. 2011). The limits of that discretion
are prescribed by 18 U.S.C. § 3583(d), which requires
the conditions (1) be reasonably related to the nature and
circumstances of the offense, the defendant's history and
characteristics, the deterrence of criminal conduct, the
protection of the public from further crimes of the
defendant, or the defendant's educational, vocational,
medical, or other correctional needs; (2) involve no greater
deprivation of liberty than is reasonably necessary to
achieve the purpose of deterring criminal activity,
protecting the public, and promoting the defendant's
rehabilitation; and (3) be consistent with any pertinent
policy statements issued by the Sentencing Commission.
See 18 U.S.C. §§ 3553(a), 3583(d);
Mike, 632 F.3d at 692. The proposed conditions of
release to which Defendant objects are standard conditions of
supervised release that satisfy the statutory requirements.
Accordingly, Defendant's objections are without merit.