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United States v. Gallegos

United States District Court, D. New Mexico

May 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TRINIDAD GALLEGOS Defendant.

          Damon P. Martinez United States Attorney Paul Mysliwiec Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          Kari Converse Assistant Federal Public Defender Albuquerque, New Mexico Attorney for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL BACKGROUND

         In a 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 the police.
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 omitted).

         PROCEDURAL BACKGROUND

         On June 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 at 5.

         The 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.

         The 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.

         The 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 ...


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