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United States v. Folse

United States District Court, D. New Mexico

October 5, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
KEVIN FOLSE Defendant.

          Damon P. Martinez United States Attorney William J. Pflugrath Samuel A. Hurtado Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          Ryan J. Villa Law Office of Ryan J. Villa Albuquerque, New Mexico Gregory M. Acton Law Office of Gregory M. Acton Albuquerque, New Mexico Mary V. Carmack-Altwies Mary V. Carmack Law P.C. Albuquerque, New Mexico Sara Nathanson Sanchez Stelzner, Winter, Warburton, Flores, Sanchez & Dawes Albuquerque, New Mexico Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Kevin Folse's Formal Objections to Presentence Report, filed May 15, 2017 (Doc. 223)(“Objections”). The primary issues are: (i) whether Defendant Kevin Folse qualifies for a “career offender” sentencing enhancement under U.S.S.G. § 4B1.1 based on his prior felony convictions for aggravated battery with a deadly weapon and possession of marijuana with intent to distribute, as well as the two carjacking convictions rendered in this case; (ii) whether the Court should apply a 2-level obstruction-of-justice enhancement for witness intimidation under U.S.S.G. § 3C1.1; and (iii) whether the Court should apply a 2-level obstruction-of-justice enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. The Court concludes that all three enhancements apply. First, Folse qualifies as a career offender, because his carjacking conviction in this case is a “crime of violence” under U.S.S.G. § 4B1.2(a), his prior aggravated battery with a deadly weapon conviction was a “crime of violence” under U.S.S.G. 4B1.2(a), and his prior possession of marijuana with intent to distribute conviction is a controlled substance offense under § 4B1.2(b). Second, Folse qualifies for the obstruction-of-justice enhancement, because he asked “Creeper” to tell a potential witness to go “M.I.A.” prior to trial. Third, he qualifies for the obstruction-of-justice reckless-endangerment- during-flight enhancement, because Folse put pedestrians and other drivers at substantial risk of serious injury or death while fleeing police when he threw a gun out of a moving vehicle, drove at high speeds, and ran both a red light and a stop sign.

         FACTUAL BACKGROUND

         The Court takes its factual account from the Presentence Investigation Report, filed May 10, 2017 (Doc. 220)(“PSR”). Later, the Court will note Folse's factual objections and, where necessary to determine whether the disputed sentencing enhancements apply, the Court will resolve them.

         Between June 30 and July 2, 2015, Albuquerque Police Department (“APD”) detectives searched for Folse, a.k.a. “Criminal, ” who was fleeing from law enforcement and had “committed various violent crimes” during flight. PSR ¶ 5, at 4. On July 2, 2015, APD officers stopped a stolen black Cadillac, which Folse “had been driving a few hours earlier.”[1] PSR ¶ 6, at 4. Although the officers determined that Folse was not the driver, the driver stated that he had just purchased the vehicle from Folse and that Folse was located at 1825 Pitt Street NE in Albuquerque, New Mexico. See PSR ¶ 6, at 4. APD dispatched officers to the residence, where they observed an individual matching Folse's description close the front door. See PSR ¶ 7, at 4. The officers failed, however, to positively identify the man. See PSR ¶ 7, at 4. An APD detective then proceeded to the back of the residence and observed an individual -- later identified as Valente Estrada -- looking out the back window. See PSR ¶ 7, at 4. Estrada said the front door was “barricaded” and that he was alone in the residence. PSR ¶ 8, at 5.

         Shortly thereafter, the man first observed at the front door -- later identified as Folse -- “had [Estrada] join four other individuals in the bedroom with Angela Murray, ” Folse's girlfriend, [2] where Folse “proceeded to take all of their cellular telephones and remove[] their batteries . . . .” PSR ¶ 8, at 5. Estrada “observed that Folse had both a knife and a handgun in his possession.” PSR ¶ 8, at 5. To help “ease the tension, ” Estrada offered Folse and the others marijuana and methamphetamine. PSR ¶ 9, at 5. After consuming the methamphetamine, Folse threatened to stab one of the individuals and to hold “everyone in the room at gunpoint for seven hours.”[3] PSR ¶ 9, at 5. Tensions were high, because Murray had challenged Folse to prove that he had not “been with any of the women in the house[.]” PSR ¶ 10, at 5. In response to this challenge, Folse “pulled out his gun and started pistol-whipping one of the females in the home.” PSR ¶ 10, at 5.

         Folse eventually decided to leave the residence, but, before leaving, Folse ordered Estrada to hand over the keys to his 2002 silver Saturn passenger vehicle. See PSR ¶ 11, at 5. Estrada complied with Folse's order, fearing that he “had no choice . . . based on the continuous threats and acts of violence against him.” PSR ¶ 11, at 5. Folse and Murray then exited the house, and ordered Estrada and one of Murray's female friends into the Saturn. See PSR ¶ 11, at 5. Estrada and the friend “did not feel they had a choice but to go with Folse . . . .” PSR ¶ 11, at 5.

         APD received information that Folse had departed the house in a silver Saturn. See PSR ¶ 12, at 5. Officers soon caught up to the Saturn and attempted to conduct a traffic stop; Folse refused to yield, however, and, during the ensuing flight, threw a semiautomatic pistol from the vehicle. See PSR ¶ 12, at 5. Folse eventually lost control of the vehicle and “crashed violently, rolling the car onto its roof.” PSR ¶ 13, at 6. As APD arrived on the scene, “the vehicle was still spinning and four individuals emerged from the broken windows.” PSR ¶ 13, at 6.

         Folse and Murray fled on foot. See PSR ¶ 13, at 6. As they entered a residential street, they came upon a 2008 Kia Sorrento sitting in a driveway with the engine running. See PSR ¶ 14, at 6. Folse opened the driver-side door and told Michael B., a juvenile sitting in the passenger seat, that he had “three seconds to get out.” PSR ¶ 14, at 6. Michael B. complied with Folse's order, but as Michael B. was exiting the car, Folse backed the car out of the driveway and clipped Michael B.'s left shoulder with the open car door. See PSR ¶ 14, at 6; id. ¶ 16, at 6. In an interview and later at trial, Michael B. testified that Folse had a firearm; immediately after the incident, however, he told a 911 operator that Folse did not have a firearm. See PSR ¶ 14, at 6; id. ¶ 16, at 6.

         APD officers later located the Kia Sorrento and recognized Folse as the driver. See PSR ¶ 15, at 6. When the officers attempted another vehicle stop, Folse again failed to yield. See PSR ¶ 15, at 6. “A vehicle pursuit ensued, but was discontinued due to the reckless driving by Folse.” PSR ¶ 15, at 6. Folse eventually abandoned the Kia Sorrento on Interstate 40, hopped the freeway retaining wall, and “ran towards a business complex where he was able to get a ride out of the area.” PSR ¶ 15, at 6.

         The next day, on July 3, 2015, APD located Folse at a Seven-Eleven store in Albuquerque. See PSR ¶ 17, at 6. When officers attempted to arrest Folse, he fled the scene in a stolen 1999 Ford F-150 truck.[4] See PSR ¶ 17, at 6. A vehicle pursuit again ensued, but “officers disengaged from the chase because Folse was putting the public at risk of being harmed.” PSR ¶ 17, at 6. Later that day, Isleta Pueblo Police Department officers observed the Ford F-150 truck parked at the Isleta Casino outside Albuquerque. See PSR ¶ 17, at 6. After reviewing security tapes, officers confirmed that Folse was in the Casino. See PSR ¶ 17, at 6. When Folse exited Isleta Casino, officers arrested him without incident. See PSR ¶ 17, at 6. The keys to the stolen F-150 were in his pocket. See PSR ¶ 17, at 6.

         In September 2015, Folse wrote a letter to a friend known as “Creeper, ” asking him “to do what he could in assuring that [Estrada] would not show up to testify.” PSR ¶ 18, at 6. “The letter was given to [Estrada] who then gave it to law enforcement.” PSR ¶ 18, at 6-7.

         PROCEDURAL BACKGROUND

         On July 14, 2015, a grand jury indicted Folse for: (i) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count I); (ii) carjacking a silver Saturn, in violation of 18 U.S.C. § 2119 (Count II); and (iii) using, carrying, and brandishing a firearm in relation to and in furtherance of a crime of violence, i.e., carjacking the Saturn, in violation of 18 U.S.C. § 924(c) (Count III). See Indictment at 1-2, filed July 14, 2015 (Doc. 10)(“Indictment”). On September 9, 2015, a grand jury returned a Superseding Indictment. See Superseding Indictment at 1. The Superseding Indictment preserves the original Indictment's three counts and adds two new counts. Count IV charges Folse with carjacking a 2008 Kia Sorrento, in violation of 18 U.S.C. § 2119, see Superseding Indictment ¶ 4, at 3, and Count V charges Folse with using, carrying, and brandishing a firearm in relation to and in furtherance of a crime of violence, i.e., carjacking the Kia Sorrento, in violation of 18 U.S.C. § 924(c), see Superseding Indictment ¶ 5, at 3. Plaintiff United States of America later dismissed Count V, because it obtained evidence that Folse did not use a firearm in the second alleged carjacking. See United States' Unopposed Motion to Dismiss Count Five of the Superseding Indictment ¶¶ 5-9, at 3, filed October 1, 2015 (Doc. 83). On October 8, 2015, following a three-day trial, a jury convicted Folse on all four remaining counts. See Verdict at 1, filed October 8, 2015 (Doc. 105).

         The United States Probation Office (“USPO”) filed a Presentence Investigation Report on May 10, 2017. PSR at 1. In the PSR, the USPO notes that, with respect to the violation of 18 U.S.C. § 924(c) in Count III, U.S.S.G. § 2K2.4 provides that the guideline sentence is a minimum seven-year term of imprisonment. See PSR ¶¶ 25-26, at 7-8. The PSR then groups Counts I and II for guideline calculation purposes pursuant to U.S.S.G. § 3D1.2(c). See PSR ¶ 27, at 8. For these two counts, the PSR calculates an adjusted offense level of 30, including a base offense level of 20, a 4-level enhancement under § 2B3.1(4)(A) for abduction of Estrada, a 2-level enhancement under § 2B3.1(b)(5) for carjacking the Saturn, a 2-level obstruction-of-justice enhancement under § 3C1.1 for witness intimidation, and a 2-level enhancement under § 3C1.2 for reckless endangerment during flight. See PSR ¶¶ 28-35, at 8. Regarding Count IV, the PSR calculates an adjusted offense level of 24, including a base offense level of 20, a 2-level enhancement under § 2B3.1(b)(5) for carjacking the Kia Sorrento, and a 2-level obstruction-of-justice enhancement under § 3C1.2 for reckless endangerment during flight. See PSR ¶¶ 36-41, at 9. Given the multiple counts of conviction, the PSR calculates a combined adjusted offense level of 31. See PSR ¶¶ 42-45, at 9.

         Finally, the PSR notes that Folse is a career offender under § 4B1.1(a), because (i) he was at least eighteen years old when he committed the two federal carjackings; (ii) those carjackings are crimes of violence; and (iii) he has at least two prior felony convictions for a crime of violence or a controlled substance offense. See PSR ¶ 46, at 9. See also PSR ¶ 115, at 26 (noting that Folse has prior felony convictions for possession of marijuana with intent to distribute and aggravated battery with a deadly weapon). The PSR accordingly calculates a criminal history category of VI under § 4B1.1(b). See PSR ¶ 62, at 14. The PSR provides, however, that the total offense level remains 31, because, under § 4B1.1(b), “if the offense level that is otherwise applicable is greater than the offense level listed in the table, ” the Court should “use the otherwise applicable offense level.” PSR ¶ 47, at 9. The PSR notes that, here, the otherwise applicable offense level -- 31 -- is greater than the offense level listed in the table. See PSR ¶ 47, at 9. The PSR adds that, pursuant to § 4B1.1(c), the applicable guideline range for a career-offender defendant convicted under 18 U.S.C. § 924(c) is determined as follows:

In the case of multiple counts of conviction, the guideline range shall be the greater of (A) the guideline range that results by adding the mandatory minimum consecutive penalty required by the 18 U.S.C. § 924(c) to the minimum and maximum of the otherwise applicable guideline range, which results in a range of 272 months to 319 months; and (B) the guideline range determined using the table in U.S.S.G. § 4B1.1(c)(3), which is 360 months to life.

PSR ¶ 47, at 9-10. The PSR concludes that, “[s]ince it is the greater of the two options, the guideline range shall be determined under 4B1.1(c)(3).” PSR ¶ 47, at 9. Thus, the PSR calculates a guideline imprisonment range of 360 months to life. See PSR ¶ 97, at 23. The PSR notes, however, that, if he were not a career offender, Folse's total offense level of 31 and criminal history category of VI would yield a guideline imprisonment range of 188 to 235 months, plus a consecutive 84-month term for the 18 U.S.C. § 924(c) violation in Count III, resulting in an effective guideline range of 272 to 319 months. See PSR ¶ 97, at 23.

         1. Folse's Objections to the PSR.

         Folse filed his formal objections to the PSR on May 15, 2017. See Objections at 1. Folse makes three primary objections. See Objections at 2-22. First, Folse argues that the career offender enhancement under § 4B1.1(a) does not apply, because (i) his prior felony conviction for aggravated battery with a deadly weapon is not a “crime of violence” under § 4B1.2(a); (ii) his prior conviction for possession of marijuana with intent to distribute should not be considered a “controlled substance offense” under § 4B1.2(b); and (iii) the carjackings for which he was convicted in this case do not constitute crimes of violence under § 4B1.2(a). See Objections at 2-17. Second, Folse contends that the 2-level obstruction-of-justice enhancement under § 3C1.2 for reckless endangerment during flight is not warranted, because his driving, while admittedly unsafe, was not “reckless” as § 3C1.2 requires. Objections at 18-19. Third, Folse avers that the 2-level obstruction-of-justice enhancement under § 3C1.1 for witness intimidation is not warranted, because he did not “threaten, intimidate, or unlawfully influence” a witness, nor did he enlist “Creeper” to do so. Objections at 19-22. In light of these objections, Folse disputes the PSR's guideline imprisonment calculation, and proffers an alternative calculation. See Objections at 23-24. Finally, Folse objects to several factual statements in the PSR. See Objections at 24-27. The Court discusses all these objections in turn.

         a. Objections to the “Career Offender” Enhancement.

         For context, Folse begins by noting that a “defendant who qualifies for the Career Offender enhancement faces a significantly longer sentence of imprisonment than one who does not.” Objections at 3. He notes that, “[r]egardless of a career offender's actual criminal history category, the Guidelines assign him the highest possible Criminal History Category: Category VI.” Objections at 3 (citing U.S.S.G. § 4B1.1(b)). Moreover, he notes, the “Career Offender guideline is particularly onerous for a defendant convicted under 18 U.S.C. § 924(c), ” because it imposes a guideline range of 360 months to life for such offenders. Objections at 3. Here, he asserts, neither his conviction for aggravated battery with a deadly weapon, nor his conviction for possession of marijuana with intent to distribute, justify the career offender enhancement. See Objections at 3-4.

         First, Folse argues that his felony conviction for aggravated battery with a deadly weapon is not a “crime of violence” under § 4B1.2(a). Objections at 4. Section 4B1.2(a), he notes, defines “crime of violence” as an offense punishable by a term of imprisonment exceeding one year that (i) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; or (ii) is one of several enumerated offenses. Objections at 2.[5] He argues that, because his conviction is not an enumerated offense under § 4B1.2(a)(2), it can “only trigger application of the Career Offender guideline . . . [if it] ‘has as an element the use, attempted use, or threatened use of physical force against the person of another.'” Objections at 4 (quoting U.S.S.G. § 4B1.2(a)(1)). Although he admits that courts in the United States District of New Mexico have concluded that “New Mexico aggravated battery constitutes a ‘crime of violence, '” he contends that “there is no controlling law on this point from the Tenth Circuit.” Objections at 4. Moreover, he contends, “there are compelling reasons” to conclude that his aggravated battery conviction “should not qualify as a crime of violence because it does not satisfy the ‘force clause.'” Objections at 4. He supports this argument by discussing his aggravated battery charge, New Mexico aggravated battery law, and § 4B1.2's “force clause.” Objections at 4-13.

         Folse initially notes that, in 2008, he pled no contest to a charge that he

did touch or apply force to Bronson Sanchez, with a handgun, an instrument or object which, when used as a weapon, could cause death or great bodily harm, intending to injure Bronson Sanchez, or another, and used a firearm, contrary to Section 30-3-5(A) & (C) and Section 31-18-16 NMSA 1978.

         Objections at 4 (citation omitted). He then notes that aggravated battery in New Mexico “consists of the unlawful touching or application of force to the person of another with intent to injure, ” and that such battery is a third-degree felony if it “inflict[s] great bodily harm” or is committed “with a deadly weapon” or “in any manner whereby great bodily harm or death can be inflicted . . . .” Objections at 5 (emphases omitted)(citing N.M. Stat. Ann. § 30-3-5(A), (C)). Folse notes that a “deadly weapon, ” in turn, is defined as “any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm, ” Objections at 5 (emphasis omitted)(citing N.M. Stat. Ann. § 30-1-12(B)), and argues that this definition applies to “‘offenses involving both use and possession of deadly weapons, '” Objections at 5 (quoting United States v. Silva, 608 F.3d 663, 670 (10th Cir. 2010)(emphasis omitted)). Thus, Folse contends, “an unloaded firearm[] automatically count[s] as a deadly weapon, ” but, “because ‘firearm' is listed under Section 30-1-12(B), the charge of aggravated battery with a firearm as a deadly weapon does not require any showing that the firearm (loaded or unloaded) ‘could cause death or bodily harm.'” Objections at 5-6 (emphases in original)(quoting State v. Murillo, 2015-NMCA-046, ¶ 21, 347 P.3d 284, 291). Essentially, he explains, firearms “are separated by a semicolon in Section 30-1-12(B) from the listed weapons ‘include[d]' in the definition of instruments ‘capable of producing death or great bodily harm, ' and therefore firearms . . . are not defined by Section 30-1-12(B) as per se ‘capable of producing death or great bodily harm.'” Objections at 6. In support of this argument, he notes that the Court of Appeals of New Mexico has concluded that “‘Section 30-1-12(B) expressly designates unloaded firearms to be deadly weapons as a matter of law, regardless of their manner of use in any particular crime.'” Objections at 6 (quoting State v. Fernandez, 2007-NMCA-091, ¶ 12, 164 P.3d 112, 115)(emphasis omitted).

         Extrapolating from this analysis, Folse argues that aggravated battery with great bodily harm “is a distinct crime from” aggravated battery with a deadly weapon. Objections at 7. He argues that, “[u]nlike aggravated battery with great bodily harm, aggravated battery with a deadly weapon does not have as an element the intent to injure (and in fact actually injuring) in a way likely to result in death or great bodily harm.” Objections at 7 (emphases, footnote, and citations omitted). Here, he argues, he “was not convicted of a crime containing as an element the intent to injure ‘in a way that would likely result in death or great bodily harm.'” Objections at 7. His conviction's elements, he notes, include: (i) unlawful touching or application of force to another; (ii) with intent to injure; and (iii) with a firearm. See Objections at 7.

         Turning to his objection to the § 4B1.1 enhancement, Folse argues that his prior aggravated battery conviction is not a “crime of violence, ” because the crime's elements “do not necessarily involve the ‘use, attempted use, or threatened use of physical force against the person of another.'” Objections at 8 (quoting U.S.S.G. § 4B1.2(a)(1)). He contends that “physical force” in this context means “‘violent force -- that is, force capable of causing physical pain or injury to another person.'” Objections at 10 (emphasis in original)(quoting Johnson v. United States, 559 U.S. 133, 140 (2010)(“Johnson I”)). He concludes that, given this analysis, “a careful examination of recent decisions finding that New Mexico's crime of aggravated battery with a deadly weapon does qualify as a ‘crime of violence' actually demonstrates why this offense should not constitute a crime of violence.” Objections at 8 (emphasis in original). He notes, for example, that the Honorable James A. Parker, Senior United States District Judge, recently concluded that aggravated battery with a deadly weapon is a crime of violence. See Objections at 8 (citing Vasquez v. United States, 2017 U.S. Dist. LEXIS 4135, at *12 (D.N.M. 2017)(Parker, J.)). He argues that Judge Parker based this conclusion on two recent United States Court of Appeals for the Tenth Circuit cases holding that aggravated assault with a deadly weapon constitutes a crime of violence. See Objections at 8 (relying on United States v. Mitchell, 653 F. App'x 639 (10th Cir. 2016); United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010)). Those cases, he avers, “focus on the ‘threat' of physical force in determining that the statutes at issue necessitated ‘violent force[.]'” Objections at 8 (emphasis in original). He notes that New Mexico state courts, by contrast, “have held that it is possible to commit battery without threatening a person.” Objections at 10 (citing State v. Branch, 2016-NMCA-071, ¶ 27, 387 P.3d 250, 258). Thus, he argues, “the logic employed in Mitchell and Silva --which focuses on a threat of force -- does not translate to New Mexico aggravated battery with a deadly weapon.” Objections at 10. Similarly, he avers, the Tenth Circuit's decision in United States v. Maldonado-Palma, 839 F.3d 1244 (2016), holding that aggravated assault with a deadly weapon is a crime of violence, is inapposite, because: (i) unlike that crime, aggravated battery with a deadly weapon “does not require ‘use' of a deadly weapon, ” but rather that a defendant “touch[] a person ‘with' a firearm or deadly weapon, ” Objections at 12; and (ii) a defendant can “commit aggravated battery without also committing aggravated assault, ” Objections at 13 (citation omitted).

         Second, Folse argues that his prior felony conviction for possession of marijuana with intent to distribute “should not qualify as a ‘controlled substance offense'” under § 4B1.2(b). Objections at 13. He notes that, in 2007, he pled guilty to possession of marijuana with intent to distribute, a fourth-degree felony under N.M. Stat. Ann. § 30-31-22(A)(1), and that he received a suspended eighteen-month sentence, with eighteen months unsupervised probation. See Objections at 13-14. He concedes that “technically this offense of conviction meets the definition of ‘controlled substance offense' under § 4B1.2(b), ” but contends that “there are compelling policy reasons as to why this offense should not be used to trigger an enhancement as severe as the Career Offender guideline.” Objections at 14. He argues, first, that, “in New Mexico, a first offense of possession with intent to distribute marijuana is treated as the lowest degree of felony, so low that it is treated the same as simple possession (eight ounces or more) of marijuana.” Objections at 14 (citing N.M. Stat. Ann. § 30-31-22(A)(1); N.M. Stat. Ann. § 30-31-23(B)(3)). Second, he contends that “marijuana is now legal under state law for recreational purposes” in several states and that it is legal “for medical purposes in multiple other states, including New Mexico.” Objections at 14 (citing N.M. Stat. Ann. § 23-2B-1). He contends that he “suffers from a medical condition . . . which would qualify him for lawful medical marijuana use under this law, ” although he concedes that there is no evidence that he “applied for or obtained a New Mexico medical marijuana card[.]” Objections at 14-15. Nevertheless, he asserts, it would be “unfair to use this relatively minor offense -- which punishes conduct that could have been legal as to him -- to significantly enhance his sentence.” Objections at 15. Third, he says that the Court has distinguished “between controlled substance offenses involving possession of marijuana” and “other substances such as narcotic drugs.” Objections at 15. He notes, for example, that, in United States v. Rodriguez, 147 F.Supp. 1278 (D.N.M. 2015)(Browning, J.), the Court criticized a “trend in the United States of inconsistent enforcement of federal marijuana laws, ” and concluded that the defendant, charged with possession of fifty kilograms or more of marijuana with intent to distribute, did not pose a “danger to the community.” Objections at 15 (quoting United States v. Rodriguez, 147 F.Supp. at 1281)(internal quotation marks omitted).

         Finally, Folse argues that his “instant convictions for carjacking do not constitute a crime of violence for purposes of the Career Offender enhancement.” Objections at 17. He notes that, for the § 4B1.1 enhancement to apply, the “instant offense of conviction must meet the definition of ‘crime of violence' or ‘controlled substance offense' under the guideline.” Objections at 16. The Tenth Circuit, he contends, has not yet decided whether “federal carjacking is determined to be a crime of violence under the ‘force clause' of § 4B1.2.” Objections at 16. He admits that the Tenth Circuit has held that “federal carjacking constitutes a crime of violence under 18 U.S.C. § 924(c)(3) because it ‘carries with it a substantial risk of the use of physical force.'” Objections at 16 (quoting United States v. Brown, 200 F.3d 700, 706 (10th Cir. 1999)). He contends, however, that “this language is akin to the ‘residual clause' language that was deleted from the Career Offender guideline in the August 1, 2016 amendment to the Guidelines, and therefore, cannot be used as a basis for application of the guideline to Mr. Folse.” Objections at 16. Moreover, he argues, although the Career Offender guideline's “enumerated offenses” provision includes “robbery, ” the Tenth Circuit has concluded that “robbery and carjacking are not identical offenses.” Objections at 16 (citing United States v. Rushing, 210 F. App'x 767, 770 (10th Cir. 2006)). Last, he contends that carjacking is not a crime of violence, because it “may be committed by ‘intimidation, ' rather than by force and violence.” Objections at 17 (quoting United States v. Malone, 222 F.3d 1286, 1291 (10th Cir. 2000)). Thus, he concludes, carjacking “may be accomplished without the ‘use, attempted use, or threatened use of physical force against the person of another.'” Objections at 17 (quoting U.S.S.G. § 4B1.2(a)).

         b. Objections to the Obstruction-of-Justice Enhancement for Reckless Endangerment.

         Turning to the PSR's obstruction-of-justice enhancement for reckless endangerment, Folse notes that § 3C1.2 “provides for a two-point enhancement ‘if the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.'” Objections at 18 (quoting United States v. Buckley, 2000 U.S. App. LEXIS 11799, at *11 (10th Cir. 2000)). Folse contends that the “risk” which the defendant creates must be such that to “‘disregard that risk [would] constitute[] a gross deviation from the standard of care that a reasonable person would exercise in such a situation.'” Objections at 18 (quoting United States v. Buckley, 2000 U.S. App. LEXIS 11799, at *11). Folse further contends that “‘[t]he standard of care envisioned by the Guidelines is that of the reasonable person, not the reasonable fleeing criminal suspect.'” Objections at 18 (quoting United States v. Buckley, 2000 U.S. App. LEXIS 11799, at *11-12).

         Folse argues that, here, his conduct during the vehicle pursuits involving the Saturn and the Kia Sorrento was not “reckless” as § 3C1.2 defines that term. Objections at 19. Folse contends that there is no evidence that he “aimed either of the vehicles at anyone, or even came close to colliding with anyone . . . .” Objections at 19. Folse contends that the evidence indicates, “[a]t most, . . . [that he] drove in excess of the speed limit and ran one stop sign and one red light.” Objections at 19. As to the Saturn, Folse concedes that his “excess speed resulted in the [] vehicle . . . flipping over on a sharp curve, ” but emphasizes that “no injuries were reported.” Objections at 19. With respect to the Kia Sorrento, Folse concedes that he “accelerated very rapidly” and “drove in excess of the speed limit (possibly about 60 mph) and weaved in and out of traffic.” Objections at 19. Folse argues that, although “these facts certainly do not paint a picture of particularly safe driving practices, and may rise to the level of negligence, it does not reflect a ‘gross deviation from the standard of care that a reasonable person would exercise in such a situation.'” Objections at 19.

         c. Objections to the Obstruction-of-Justice Enhancement for Witness Intimidation.

         Turning next to the obstruction-of-justice enhancement for witness intimidation, Folse notes that § 3C1.1 provides a 2-level enhancement if (i) “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction”; and (ii) “the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct[, ] or (B) a closely related offense[.]” Objections at 19-20 (quoting U.S.S.G. § 3C1.1)(internal quotation mark omitted). Folse emphasizes that the § 3C1.1 enhancement requires that the “defendant must have deliberately - - not accidentally, incidentally, or mistakenly -- done some act with the specific purpose of thwarting the investigation and prosecution.” Objections at 20 (quoting United States v. Welbig, 2015 U.S. Dist. LEXIS 66185, at *59-60 (D.N.M. 2015)(Browning, J.)(citation omitted)). Folse concludes that § 3C1.1 requires “extreme conduct.” Objections at 20.

         Here, Folse contends, the letter to Creeper did “not threaten, intimidate, or unlawfully influence” Estrada, nor did it “enlist ‘Creeper' to do so.” Objections at 22. Rather, Folse asserts, the letter “asks ‘Creeper' to talk (‘rap') to [Estrada] and tell him to ‘go MIA' and ‘chill for a while.'” Objections at 22. Folse contends that, “[a]t most, this language can be interpreted as asking an intermediary to suggest to a witness that the witness not appear in court.” Objections at 22. Folse reasons that “[s]uch a suggestion could be motivated by a number of things, including a concern that the witness may not be truthful in his testimony and may intend to inculpate the defendant in order to exculpate himself.” Objections at 22. In Folse's view, “[t]his conduct should not be deemed to rise to the level of obstruction so as to trigger this enhancement.” Objections at 22.

         d. Folse's Alternative Guideline Imprisonment Calculation.

         In light of his objections to the career-offender enhancement and to the two obstruction-of-justice enhancements, Folse contends that the PSR improperly calculates his guideline imprisonment range at 272 to 319 months without the career-offender enhancement, and at 360 months to life with the career-offender enhancement. See Objections at 23. Folse argues that, without the objectionable enhancements, his offense level is 28. See Objections at 23. Folse further contends that his “actual criminal history score is seven (7), which yields a Criminal History Category of IV.” Objections at 23 (citing PSR ¶¶ 60-61, at 14). Thus, Folse asserts, “[w]ith a criminal history category of IV, and an offense level of 28, Mr. Folse's guideline range would be 110-137 months.” Objections at 24. Folse adds that, given the mandatory seven-year sentence for his conviction pursuant to 18 U.S.C. § 924(c), his effective guideline range is 194 to 221 months. See Objections at 24.

         e. Folse's Factual Objections.

         Folse closes by noting his objections to several factual statements in the PSR which, he argues, lack support in evidence adduced either at trial or in investigative reports. See Objections at 24-26. First, he contends that there is no evidence that he “was observed driving a stolen black Cadillac on July 2, 2015 or at any time.” Objections at 24 (citing PSR ¶ 6, at 4). Second, he objects to the PSR's assertion that someone “who matched the description of Folse” closed the front door at 1825 Pitt Street NE in Albuquerque, New Mexico, PSR ¶ 7, at 4, because “that person was never positively identified as Mr. Folse, ” Objections at 24. Third, he asserts that there is no evidence that he held people “at gunpoint” inside the home. Objections at 25 (citing PSR ¶ 9, at 5). Fourth, he avers that the PSR's statements regarding his “pistol-whipping one of the females in the home, ” PSR ¶ 10, at 5, are irrelevant to determining his sentence, and says that, regardless, the statements should be excluded from the PSR pursuant to rule 32(d)(3)(C) of the Federal Rules of Criminal Procedure, [6]because the statements, if disclosed, “might result in physical or other harm to the defendant or others, ” Objections at 25. Fifth, he objects to the statements that APD “confirmed that Folse was the driver” of the Saturn and that officers saw him throw a gun from the Saturn, PSR ¶ 12, at 5, because “no witnesses from APD testified that they observed and identified Mr. Folse as the driver of the Saturn, ” or that “they had seen Mr. Folse throw a gun from the Saturn, ” Objections at 25. Sixth, he objects to the statement that people at the home were “kidnapped, ” PSR ¶ 13, at 6, because he “was never charged with or convicted of kidnapping, and the testimony adduced at trial does not establish the crime of kidnapping, ” Objections at 25. Seventh, he objects to the statement that he pointed a gun at Michael B., because the United States “dismissed Count VI, the § 924(c) brandishing charge in connection with the second carjacking, based on the 911 audio recording in which M[ichael]” said that Folse did not have a gun. Objections at 25-26 (citing PSR ¶ 16, at 6). Eighth, he objects to the statement that he stole the Cadillac, because “he was never positively identified as the perpetrator of that crime.” Objections at 26 (citing PSR ¶ 50, at 10). Last, he objects to the statements that he was identified as the driver of the Cadillac on June 30, 2015, and that he ran a red light and almost struck the APD officer, because “[t]he police reports corresponding to that incident do not contain a positive identification of Mr. Folse as the driver of that vehicle during that incident.” Objections at 26 (citing PSR ¶ 51, at 10).

         2. The USPO's Third Addendum.

         The USPO responds to Folse's Objections by way of an addendum to the PSR. See Third Addendum to the Presentence Report at 1, filed May 10, 2017 (Doc. 222)(“Third Addendum”).[7] T h e USPO responds first to Folse's objection to the 2-level obstruction-of-justice enhancement for witness intimidation. See Third Addendum at 4-5. The USPO argues that the § 3C1.1 enhancement should apply, because Folse asked “Creeper” to “do what he could to assure that [Estrada] would not show up to testify.” Third Addendum at 4. The USPO contends that Application Note (K) to § 3C1.1 provides that “threatening the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of conviction is obstruction.” Third Addendum at 4. Next, the USPO responds to Folse's objection to the 2-level obstruction-of-justice enhancement for reckless endangerment under § 3C1.2. See Third Addendum at 4-5. The USPO asserts that the § 3C1.2 enhancement should apply, because Folse “recklessly created a substantial risk of death or serious bodily injury . . . in the course of fleeing from” APD officers. Third Addendum at 4.

         Finally, the USPO responds to Folse's objection to the career-offender enhancement under § 4B1.1. See Third Addendum at 5-6. First, the USPO contends that Folse's prior conviction for possession of marijuana with intent to distribute qualifies as a “controlled substance offense, ” because it is a fourth-degree felony punishable by 18 months imprisonment. Third Addendum at 5-6. Second, the USPO asserts that Folse's prior conviction for aggravated battery with a deadly weapon qualifies as a “crime of violence.” Third Addendum at 6. The USPO notes that, under § 4B1.2, an offense is a crime of violence if its “statutory definition contains any of the elements within the elements clause, which states, has the use, attempted use, or threatened use of physical force against the person of another.” Third Addendum at 6. The USPO contends that New Mexico aggravated battery meets this definition, because, under N.M. Stat. Ann. § 30-3-5(C), “a person commits aggravated battery when inflicting great bodily harm or does so with a deadly weapon or in the manner whereby great bodily harm or death can be inflicted.” Third Addendum at 6.

         RELEVANT LAW REGARDING THE GUIDELINES

         In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1976, thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Act intact, including 18 U.S.C. § 3553: “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. at 261.

         Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary” to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just ...

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