United States District Court, D. New Mexico
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
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.
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.
Agreement ¶¶ 8-11, at 3-4.