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United States v. Salas

United States District Court, D. New Mexico

May 11, 2017



         THIS MATTER comes before the Court following an evidentiary hearing on April 12, 2017 regarding Defendant's Objections to Presentence Report and Motion for Downward Variance, filed November 3, 2016 (Doc. 35).[1] Having reviewed the pleadings, and heard the testimony and arguments of counsel, the Court OVERRULES Defendant's objections regarding the four-level enhancement under U.S.S.G. §2K2.1(b)(1)(B).


         On April 20, 2016, the defendant pled guilty to a one-count Information (Doc. 28). Count 1 charged Possession of an Unregistered Firearm-Destructive Device, in violation of 26 U.S.C. §§ 5841, 5845(a)(8), 5861(d), and 5871. Specifically, Defendant admitted to unlawfully possessing an unregistered firearm-destructive device (a “pipe bomb”).

         The background facts are set forth in the Defendant's brief (Doc. 35), but the Court presents a brief overview of the pertinent facts here. The offense occurred on November 12, 2015, in Roswell, New Mexico, when Roswell Police arrived at a residence with a search warrant attempting to locate Defendant's brother. Government witness New Mexico State Police Officer Gabriel Luna, [2] who is a certified bomb technician, testified that he was called to the Roswell residence because detectives believed they had located explosive devices. Specifically, during the course of the warrant execution, detectives searched Defendant's bedroom inside the Roswell residence and located several firearms, ammunition, magazines, pressure cookers, detonation cord, and numerous items that could be used to make explosive devices. Detectives also located chemicals, including ammonium nitrate, which can be used as an explosive device. Officer Luna located several books on how to make weapons, including a “Poor Man's James Bond” book which details how to construct improvised explosive devices and booby traps. Officer Luna testified that he eventually found items that he believed to be pipe bombs (Government Exhibits 1 and 2).[3]

         Detectives also located four suspected firearm silencers (Government Exhibits 7, 8, and 30); however, one of the suspected silencers was immediately ruled out. The PSR identifies three suspected firearm silencers, but at the hearing counsel for the government explained that the government is including only two silencers for purposes of the four-level enhancement.[4] One of those silencers contains the words “Sounds of Nature, ”[5] and one contains the words “Hfire” (items j and k listed in the PSR at ¶ 9). Neither device contains a serial number.

         Detectives also located the following materials that were identified as a combination of parts to readily assemble four explosive mines (or “directional mines”) and two explosive bombs (or “pipe bombs”):

• Galvanized steel pipe body with endcaps
• Three (3) wood blocks with steel pipe and large mouse trap as switch
• Live 12 gauge shotgun shell
• Detonation cord (Government Exhibit 34)

(Items w, x, y and z listed in the PSR at ¶ 9). At the hearing, the government's destructive device expert, ATF explosives enforcement officer Danny R. Waltenbaugh, testified in detail regarding the pipe bombs and directional mines. Officer Waltenbaugh specializes in destructive devices, bombs, explosives, and incendiary items. He primarily provides technical and expert support in determining what types of devices are destructive devices under the National Firearms Act. Officer Waltenbaugh explained that a destructive device is defined by the National Firearms Act as any explosive, incendiary or poison gas, bomb, rocket, grenade, missile, mine, or similar device. It also includes things that are a combination of parts that are components that make up what would be assembled into a destructive device. He stated that a pipe bomb is typically a pipe nipple that is sealed on both ends by an end cap, and then it has some form of explosive material or pyrotechnic composition inside of it and some method of initiating that powder inside.

         Officer Waltenbaugh testified at length regarding the four directional mines detectives located in Defendant's bedroom. He elaborated that a directional mine is designed to explode when the victim trips it or steps on it. Specifically, rather than exploding in a general way, a directional mine explodes and causes fragments and shrapnel and injurious type material to be projected in a specific direction.

         Officer Waltenbaugh explained that Government Exhibits 1 and 2 are pipe bombs that were located in Defendant's bedroom, and these items meet the definition of a destructive device under 26 U.S.C. § 5845(f). Exhibit 1 consists of a pipe nipple with two end caps, and explosive materials were found in Defendant's bedroom. More specifically, one of the end caps was drilled with a hole so that a pyrotechnic fuse could be inserted, which was also found in Defendant's bedroom. The end cap could be unscrewed, the pipe filled with explosive powder, the fuse inserted, and these steps would make the item explosive. With regards to Government Exhibit 2, Officer Waltenbaugh elaborated that this item was likewise a combination of parts in order to readily assemble a pipe bomb. Exhibit 2 is similar to Exhibit 1 in that it consisted of a pipe nipple and one end cap had a hole drilled through it to enable a pyrotechnic fuse to be inserted. As with Exhibit 1, it would be filled with explosive powder and could explode with significant force.

         Officer Waltenbaugh testified that Government Exhibits 3 through 6 are combination of parts in order to construct the four directional mines that detectives found in Defendant's bedroom. Each item consists of a block, a length of pipe, some type of a closure, (like a pipe nipple), and a large mouse trap with a spring assembly. In each one of these items, the closing component had a hole made in it of sufficient diameter to accept some type of item like a wire, nail, or firing pin. To operate each device, the pipe would be pounded in place so as not to move. A nail or other item would be placed, and a 12 gauge shotgun shell would fit inside the pipe. The nail would rest against the primer of the shotgun shell. When the wire is tripped, the shotgun shell would fire whatever was contained inside the shell through the tube, projecting it in a specific direction. All four directional mines were of a similar construction, and all were painted camouflage.

         One of the directional mines contained a spent 12 gauge shotgun cartridge inside of it, and gunpowder residue showed the device had been used. Officer Luna also explained earlier in the hearing that another of the directional mines contained a fully intact, live shotgun shell.

         Officer Waltenbaugh concluded that none of the directional mines had any sporting or hunting purposes primarily because the devices were not designed to be held by hand. The four devices are specifically designed to attach to a trip wire in order for the device to be tripped, to explode, and to ...

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