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United States v. Gallegos

United States District Court, D. New Mexico

May 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MIGUEL ANDREW GALLEGOS, Defendant.

          Damon P. Martinez United States Attorney Shana B. Long Alexander Mamoru Max Uballez Assistant United States Attorneys Albuquerque, New Mexico Attorneys for the Plaintiff.

          Gregory M. Acton Albuquerque, New Mexico Attorney for the Defendant.

          MEMORANDUM OPINION AND ORDER[1]

         THIS MATTER comes before the Court on (i) the Defendant's Sealed Formal Objections to the Presentence Investigative Report, filed May 31, 2016 (Doc. 35)(“Objections”); and (ii) the Defendant's Reply to the United States [sic] Sealed Supplemental Response to Defendant's Formal Objections to the Presentence Report and Motion for Downward Variance Under 18 U.S.C. § 3553(a), filed July 7, 2016 (Doc. 55)(“Reply”). The primary issues are: (i) whether the Court should sustain Defendant Miguel Andrew Gallegos' Objection to a 4-level enhancement under § 2K2.1(b)(6) of the United States Sentencing Guidelines (“USSG”) for vehicle theft; and (ii) whether the Court should sustain Gallegos' Objection to a 4-level enhancement under USSG § 2K2.1(b)(6) for embezzlement. The Court sustains both objections.

         FACTUAL BACKGROUND

         The Court takes its recitation of the facts from (i) the Presentence Investigation Report, filed March 29, 2016 (Doc. 28)(“PSR”); and (ii) the State of New Mexico Uniform Incident Report (taken July 23, 2015), filed July 1, 2016 (Doc. 46-1)(“Police Report”). The Court relies on the PSR's and the Police Report's factual allegations for contextual purposes only, particularly because Gallegos objects to certain of these allegations. The Court will more fully detail Gallegos' version of events in the Procedural Background section, infra.

         On July 24, 2015, the Bernalillo County Sheriff's Office was investigating a vehicle reported stolen from a gasoline station in Albuquerque, New Mexico. See PSR ¶ 8, at 3; Police Report at 2. The vehicle's owner, Yvonne Chacon, reported that she had run out of gas roughly 200 yards away from the gasoline station. See Police Report at 2. Chacon stated that she got out of her vehicle and began to push it toward the station when she was approached by an individual, later identified as Gallegos, who offered to help push the vehicle. See Police Report at 2. Chacon said that, when they arrived at the station, she went inside to pay for gasoline. See PSR ¶ 8, at 3; Police Report at 2. She stated that she left her vehicle's doors unlocked and the keys in the ignition. See Police Report at 2. She stated that, while she was waiting inside to pay for gas, Gallegos stole her vehicle. See PSR ¶ 8, at 3; Police Report at 2. She averred that she did not know Gallegos and that she did not give him permission to take her vehicle. See PSR ¶ 8, at 3; Police Report at 2.

         Shortly thereafter, deputies found the vehicle parked outside a home located a mile away from the gasoline station, with Gallegos sitting inside the vehicle. See PSR ¶ 8, at 3; Police Report at 2. As the deputies approached the vehicle, Gallegos fled on foot. See PSR ¶ 8, at 3; Police Report at 6. A deputy apprehended Gallegos in the home's yard and took him into custody. See PSR ¶ 9, at 3; Police Report at 6. Gallegos was found in possession of a firearm that had been reported stolen. See PSR ¶ 9, at 3.

         On December 1, 2015, a grand jury returned a single-count indictment against Gallegos for unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Indictment at 1, filed December 1, 2015 (Doc. 1). Gallegos entered a guilty plea pursuant to a plea agreement on January 29, 2016. See Plea Agreement at 1, filed January 29, 2016 (Doc. 25)(“Plea Agreement”). In the Plea Agreement, Gallegos plead guilty to being a Felon in Possession of a Firearm and admitted the following facts:

8. By my signature on this plea agreement, I am acknowledging that I am pleading guilty because I am, in fact, guilty of the offense(s) to which I am pleading guilty. I recognize and accept responsibility for my criminal conduct. Moreover, in pleading guilty, I acknowledge that if I chose to go to trial instead of entering this plea, the United States could prove facts sufficient to establish my guilt of the offense(s) to which I am pleading guilty beyond a reasonable doubt, including any facts alleged in the indictment that increase the statutory minimum or maximum penalties. I specifically admit the following facts related to the charges against me, and declare under penalty of perjury that all of these facts are true and correct:
9. As of July 24, 2015, I had been previously convicted of two felonies, child abuse (negligently caused) (no death or great bodily harm), and possession of a controlled substance. Because of these prior felony convictions, I knew that it was unlawful for me to possess a firearm or ammunition.
10. On July 24, 2015, I admit that I had a North American .22 caliber revolver, serial number L161778, in my pocket at the time of my arrest. I further admit that the firearm was loaded with four Federal brand .22 caliber cartridges. This occurred in the District of New Mexico. My possession of the firearm and ammunition affected interstate commerce as neither was manufactured in this District.
11. By signing this agreement, the Defendant admits that there is a factual basis for each element of the crime(s) to which the Defendant is pleading guilty. The Defendant agrees that the Court may rely on any of these facts, as well as facts in the presentence report, to determine the Defendant's sentence, including, but not limited to, the advisory guideline offense level.

         Plea Agreement ¶¶ 8-11, at 3-4.

         PROCEDURAL ...


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