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United States v. Gallegos

United States District Court, D. New Mexico

October 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD ANTHONY GALLEGOS, Defendant.

          James D. Tierney Acting United States Attorney Kimberly A Brawley Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Aric G. Elsenheimer Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Objections to Presentence Report and Sentencing Memorandum, filed May 5, 2017 (Doc. 25)(“Objection”). The Court held a hearing on May 23, 2017. The primary issue is whether Defendant Richard Anthony Gallegos was previously “convicted as an adult” under U.S.S.G. § 4A1.2(d) when he was convicted for robbery and aggravated battery with a deadly weapon in state court. The Court concludes that, because Gallegos' previous sentence was an adult sentence of imprisonment exceeding one year and one month, U.S.S.G. § 4A1.2(d) applies, and Gallegos was previously convicted as an adult. The Court will therefore overrule Gallegos' Objection.

         FACTUAL BACKGROUND

         The Court draws its facts from the Defendant's Plea Agreement, filed December 14, 2016 (Doc. 18)(“Plea Agreement”). In the Plea Agreement, Gallegos declared the following facts to be true:

On or about September 14, 2016, in Bernalillo County, in the District of New Mexico, I, Richard Gallegos, after having been convicted of felony crimes, knowingly possessed, in and affecting interstate commerce, a firearm and ammunition. The firearm was a Smith and Wesson model M&P 9c, 9mm semiautomatic pistol, bearing serial number HBA1641 and eleven (11) rounds of Winchester brand 9mm caliber ammunition.

         Plea Agreement ¶ 8, at 4.

         PROCEDURAL BACKGROUND

         After an Information charged Gallegos on one count of Felon with Possession of a Firearm and Ammunition, he pled guilty. The United States Probation Office (“USPO”) disclosed a Presentence Investigation Report, filed February 24, 2017 (Doc. 21)(“PSR”), which added 3 criminal history points pursuant to U.S.S.G 4(A)(1).1(a). Gallegos objected to the addition of those points, and the USPO responded.

         1. Indictment and Plea.

         On December 14, 2016, an Information was filed in the United States District Court for the District of New Mexico charging Gallegos with Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See PSR ¶ 1, at 3. On December 14, 2016, Gallegos pled guilty to that charge. See PSR ¶ 2, at 3. Gallegos represents that his plea “is freely and voluntarily made.” Plea Agreement ¶ 18, at 7.

         2. PSR.

         The USPO disclosed the PSR. See PSR at 1. In calculating Gallegos' criminal history, the PSR notes Gallegos' convictions in the Second Judicial District Court, County of Bernalillo, State of New Mexico, Docket No. D-202-JR-1998-03061, for robbery and aggravated battery with a deadly weapon, because on November 5, 1999, Gallegos was sentenced as an adult. See PSR ¶ 30, at 6. The PSR assesses 3 criminal history points pursuant to § 4A1.1(a).

         3. Gallegos&# ...


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