United States District Court, D. New Mexico
Paul Mysliwiec Attorney for Plaintiff
Devon Fooks Attorney for Defendant
MEMORANDUM OPINION AND ORDER
VÁZQUEZ United States District Judge
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.
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.
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.
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.
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.
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
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential ...