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United States v. Velasquez

United States District Court, D. New Mexico

May 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE VELASQUEZ, Defendant.

          AUSA Paul Mysliwiec Attorney for Plaintiff

          AFPD Devon Fooks Attorney for Defendant

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ United States District Judge

         THIS MATTER comes before the Court on Defendant Jose Velasquez's Objections to Presentencing Report, Sentencing Memorandum and Request for Variance (Doc. 53) (“Request for Variance”) filed January 20, 2017, and the Government's Motion to Strike Defendant's Motion for Downward Variance (Doc. 54) (“Motion to Strike”) filed January 30, 2017. For the reasons set forth below, the Government's Motion to Strike is denied and Mr. Velasquez's Request for Variance is granted.

         Background

         On September 10, 2015, an Indictment was filed in this Court charging Mr. Velasquez with one count of Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). (Doc. 4). On May 12, 2016, Mr. Velasquez entered into a Plea Agreement with the Government pursuant to Fed. R. Crim. P. 11(c)(1)(C), . (Doc. 44). In the Plea Agreement, the parties stipulated that a sentence of fifteen years was the appropriate disposition of the case, and no further reduction would occur. Id. at 4. Additionally, Mr. Velasquez agreed not to seek a downward departure or variance from the Guideline History Category, and further agreed that if he did so, the Government would have the right to treat the plea agreement as null and void and to proceed to trial on all charges before the Court. Id. at 5.

         On September 2, 2016, the United States Probation Office filed a Presentence Investigation Report (“PSR”) in which it concluded that Mr. Velasquez was an armed career criminal and subject to an enhanced sentence under the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). (Doc. 47 at 6). This conclusion was based on three previous state court criminal convictions: a 2006 conviction for Armed Robbery; a 2007 conviction for Armed Robbery with a Deadly Weapon; and a 2013 conviction for Aggravated Battery Upon a Peace Officer. Id. at 9. As a result, the Probation Office recommended a five-year enhancement, for a total sentence of 15 years.

         In his Request for Variance, Mr. Velasquez argued that he could not be sentenced as an armed career criminal under the ACCA because in Johnson v. United States, __ U.S. __, 135 S.Ct. 2251 (June 26, 2015), the United States Supreme Court had struck down the residual clause of the act (18 U.S.C. § 924(e)(2)(B)(ii)), and his state convictions for armed robbery were not “violent felonies” under § 924(e)(2)(B)(i). (Doc. 53 at 1-8). He asked that he be sentenced to no more than eight years imprisonment. Id. at 15.

         The Government moved to strike Mr. Velasquez's request for a downward variance, arguing it was filed in violation of his promises in the plea agreement. (Doc. 54 at 1). Alternatively, the Government requested that if the Court rejects the plea agreement, it explicitly note that it is doing so at Mr. Velasquez's written motion, and that Mr. Velasquez may choose to plead guilty without an agreement or proceed to trial. Id. at 2.

         Discussion

         The ACCA provides that a person who violates 18 U.SC. § 922(g) and has three prior convictions for a “violent felony” or “serious drug offense” is subject to a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e)(1). Under the ACCA, the term “violent felony” means

Any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, or attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential ...

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