United States District Court, D. New Mexico
P. Martinez United States Attorney Paul Mysliwiec Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the Plaintiff.
Converse Assistant Federal Public Defender Albuquerque, New
Mexico Attorney for the Defendant.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United States'
Objection to Presentence Investigation Report, filed July 15,
2016 (Doc. 48)(“Objections”). The Court held a
sentencing hearing on August 24, 2016. The primary issues
are: (i) whether, under § 2K2.1(6)(B) of the United
States Sentencing Guidelines (“U.S.S.G.”), a
defendant must use a firearm as an “instrumentality of
committing other offenses” for the firearm's
possession to be “connected with” the other
offenses; and (ii) whether the Court should apply a 4-level
enhancement to Defendant Trinidad Gallegos' offense level
under § 2K2.1(6)(B), because he possessed a shotgun in
connection with other felony offenses. The Court concludes
that § 2K2.1(6)(B) does not require that a firearm be
used as an instrumentality in committing other offenses for
that section's enhancement to apply. Nevertheless, the
Court declines to apply the enhancement, because
Gallegos' possession of a shotgun did not make easier or
embolden his commission of the other felony offenses, and
thus, the shotgun was not possessed “in connection
with” those offenses. Accordingly, the Court will
overrule the United States' Objections.
Plea Agreement, filed November 19, 2015 (Doc. 26)(“Plea
Agreement”), Gallegos admitted the following facts:
On August 20, 2014, police officers showed up at my house at
5115 Hattiesburg Ave NW, in Albuquerque, in Bernallilo [sic]
County, in the District of New Mexico. I, TRINIDAD GALLEGOS,
pulled up in my driveway in my tow truck, and in my truck I
knowingly possessed a loaded Mossberg model 500A shotgun,
serial number L746500, loaded with 12 gauge shotgun shells. I
saw BCSO officers pointing guns at me and quickly backed out
of my driveway. Just as I reached the street, another
vehicle, which I now know was driven by an HSI officer,
collided with me. One of the BCSO officers shot at me, and a
bullet entered and exited my left thigh, and entered my right
thigh. After being shot, I continued to try to get away,
driving the tow truck backwards down the street, and I
crashed into another vehicle. I got out of the tow truck and
ran away, breaking into people's homes to try to escape
Prior to August 20, 2014, I had been convicted of possession
with intent to distribute marijuana, domestic violence,
forgery, possession with intent to distribute
methamphetamine, uttering counterfeit securities, forgery,
and being a felon in possession of a firearm, so I know I was
not allowed to possess the shotgun on August 20, 2014.
I have been informed that police examined the firearm and
ammunition and determined that they both meet the statutory
definitions of a firearm and ammunition. I have also learned
that the firearm and ammunition were manufactured outside the
state of New Mexico and that the firearm and ammunition
therefore had to have been previously shipped or transported
in interstate commerce to be physically present and in my
possession on August 20, 2014, in Bernalillo County, in the
District of New Mexico.
Plea Agreement at 3-4 (paragraph lettering and bolding
24, 2015, a grand jury returned a two-count indictment
against Gallegos. See Indictment at 1, filed June
24, 2015 (Doc. 1)(“Indictment”). Count I charges
Gallegos with using a deadly or dangerous weapon,
i.e., a tow truck, to forcibly assault, resist,
oppose, impede, intimidate, and interfere with Homeland
Security Investigations Special Agent Brett Finn in his
performance of official duties, in violation of 18 U.S.C.
§§ 111(a)(1) and (b). See Indictment at 1.
Count II charges Gallegos with being a felon in possession of
a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). See Indictment
at 1-2. The Indictment also includes a forfeiture allegation
that Gallegos shall forfeit the firearm and ammunition
involved in the felon-in-possession offense in Count II,
pursuant to 18 U.S.C. § 924(d)(1). See
Indictment at 2. On November 19, 2015, pursuant to a plea
agreement, Gallegos entered a guilty plea as to Count II.
See Plea Agreement at 2. In light of evidence that
Finn intentionally collided with Gallegos to prevent him from
fleeing the scene, the Plea Agreement stipulates that the
United States will not attempt to prove that Gallegos
“was solely responsible for the collision which is the
basis of Count I of the indictment[.]” Plea Agreement
United State Probation Office (“USPO”) filed a
Presentence Investigation Report on June 24, 2016.
See Presentence Investigation Report at 1, filed
June 24, 2016 (Doc. 41-1)(“PSR”). In the PSR, the
USPO calculates a base offense level of 14, with a 2-level
enhancement under U.S.S.G. § 3C1.2 for obstruction of
justice, a 2-level reduction under § 3E1.1(a) for
acceptance of responsibility, and a 1-level reduction under
§ 3E1.1(b) for assisting authorities in investigating or
prosecuting the case, for a total offense level of 13.
See PSR at 8-9. The PSR calculates a criminal
history category of V, see PSR at 19, and a
guideline imprisonment range of 100 to 125 months,
see PSR 32. In light of the Plea Agreement and
pursuant to rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure, the PSR recommends a sentence of 96 months.
See PSR at 35.
United States filed its Objections to the PSR on July 15,
2016. See Objections at 1. In its Objections, the
United States asserts that Gallegos “possess[ed] [a]
shotgun in connection with other felonies, and should receive
an offense level upgrade therefor.” Objections at 1.
The United States identifies three felonies with which
Gallegos' shotgun possession was allegedly connected.
See Objections at 2-3. First, the United States
avers that, while Gallegos “was possessing the instant
shotgun and fleeing from law enforcement, he drove his truck
into a truck driven by Special Agent Brett Finn . . .
.” Objections at 2. The United States notes that Count
I -- the felony assault charge based on this alleged conduct
-- has been dismissed, but maintains that, “[f]or
purposes of U.S.S.G. § 2k2.1(6)(B), . . . Defendant
committed that assault[.]” Objections at 2. Second, the
United States contends that “[t]he fleeing from law
enforcement itself, while driving the tow truck and after
being given signals to stop, constituted the New Mexico state
felony of Aggravated Fleeing from Law Enforcement[.]”
Objections at 2. This state felony, the United States
asserts, “was committed while possessing the instant
shotgun and in furtherance of Defendant's desire not to
be caught with the shotgun.” Objections at 2. Third,
the United States notes that, while Gallegos was fleeing on
foot, he “broke into numerous homes in his . . . quest
to avoid capture by the police.” Objections at 2. The
United States contends that “[t]he breaking and
entering into those homes violated NMSA § 30-14-8,
another state felony.” Objections at 2. The United
States concludes that, because Gallegos “committed that
Breaking and Entering felony as part of his continued attempt
to avoid capture for the illegal possession of the shotgun,
the break-ins were connected to the possession of that
shotgun, and should result in an offense level increase for
the gun count under U.S.S.G. § 2K2.1(6)(B).”
Objections at 2-3.
United States notes that the USPO “takes the position
that because the shotgun was not used to drive the truck, and
was not used to facilitate the physical break-in, the
offenses are not connected.” Objections at 3. The
United States “disagrees, and takes the position that
the firearm need not be used as an instrumentality of
committing the other offenses for its possession to be
connected to the other offenses under U.S.S.G. §
2K2.1(6)(B).” Objections at 3. Thus, the United States
“requests the Court find that the commission of ...