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United States v. Bhakta

United States District Court, D. New Mexico

October 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RUPESH BHAKTA, Defendant.

          James D. Tierney Acting United States Attorney Rumaldo R. Armijo Assistant United States Attorney Albuquerque, New Mexico Attorneys for the Plaintiff

          Wayne Baker Law Office of Wayne Baker Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER [1]

         THIS MATTER comes before the Court on the Defendant's Sentencing Memorandum with Objections to Presentence Investigation Report, filed July 1, 2017 (Doc. 64)(“Objections”). The Court held a sentencing hearing on July 11, 2017. The primary issue is whether the Court should count two of Defendant Rupesh Bhakta's prior sentences separately under § 4A1.2(a)(2) of the United States Sentencing Guidelines (“U.S.S.G.”). Because the Court concludes that Bhakta was not sentenced on the same day for the two offenses at issue, despite also finding by a preponderance of the evidence that a clerical error apparently contributed to Bhakta's sentencings on different dates for those two offenses, the Court -- in its consideration of U.S.S.G. § 4A1.2(a)(2)'s plain language -- will overrule Bhakta's objection and count Bhakta's sentences separately.

         FACTUAL BACKGROUND

         In a plea agreement, filed December 8, 2016 (Doc. 33)(“Plea Agreement”), Bhakta admitted the following facts:

On or about February 16, 2016, in San Juan County, in the District of New Mexico, I, along with another person, unlawfully, knowingly and intentionally distributed a controlled substance, that is, a mixture and substance containing a detectable amount of methamphetamine, to a law enforcement Detective of the Farmington, New Mexico Police Department. Following my arrest, I was read my Miranda warning by a law enforcement officer. I waived my rights and admitted to the crime. The methamphetamine I sold to the Detective field tested positive for methamphetamine. I acknowledge that the government can prove that it was in fact methamphetamine.

Plea Agreement ¶ 8, at 3-4.

         PROCEDURAL HISTORY

         On February 25, 2016, Plaintiff United States of America, through Special Agent Jeffrey S. McKinley, filed a Criminal Complaint (dated February 16, 2016), filed February 25, 2016 (Doc. 1)(“Complaint”), describing probable cause that Bhakta and his co-defendant had committed drug crimes in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(b), which make unlawful the distribution of methamphetamine, and of 31 U.S.C. § 846, which makes unlawful the conspiracy to distribute methamphetamine. Complaint at 1-2. On March 23, 2016, a grand jury returned a five-count Indictment, filed March 23, 2016 (Doc. 13)(“Indictment”), charging Bhakta and a co-defendant, in relevant part, for his conduct when he,

[o]n or about February 16, 2016, in San Juan County, in the District of New Mexico . . . unlawfully, knowingly and intentionally combined, conspired, confederated, agreed, and acted interdependently with each other, and with other persons known and unknown to the Grand Jury, to commit an offense against the United States, distribution of 50 grams and more of a mixture and substance containing methamphetamine contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(b)[, i]n violation of 21 U.S.C. § 846.

Indictment at 2-3. The Indictment also charges Bhakta, in relevant part, for his conduct when he:

On or about February 16, 2016, in San Juan County, in the District of New Mexico . . . unlawfully, knowingly and intentionally distributed a controlled substance, 50 grams and more of a mixture and substance containing a detectable amount of methamphetamine[, i]n violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(b), and 18 U.S.C. § 2.

Indictment at 3. On December 8, 2016, the United States filed, against Bhakta alone, an Information, filed December 8, 2016 (Doc. 30)(“Information”), charging Bhakta as follows:

On or about February 16, 2016, in San Juan County, in the District of New Mexico, the defendant, RUPESH BHAKTA, unlawfully, knowingly and intentionally distributed a controlled substance, a mixture and substance containing a detectable amount of methamphetamine. In violation of 21 U.S.C. §§ 841 (a)(l) and (b)(l)(C), and 18 U.S.C. § 2.

Information at 1. In light of the Information, Bhakta waived his “right to prosecution by indictment and consent[ed] to prosecution by information.” Waiver of Indictment, filed December 8, 2016 (Doc. 31)(“Waiver”). Accordingly, on December 8, 2016, pursuant to the Plea Agreement, Bhakta entered a guilty plea as to the Information's allegations of violations of “21 U.S.C. §§ 841 (a)(1) and (b)(1)(C), that being Distribution of a Mixture or Substance Containing Methamphetamine; and 18 U.S.C. § 2, that being Aiding and Abetting.” Plea Agreement ¶ 3, at 2.

         On February 22, 2017, the United States Probation Office (“USPO”) disclosed the Presentence Investigation Report, filed February 22, 2017 (Doc. 42)(“PSR”). The PSR first explains that the Plea Agreement has

already conferred a benefit on the defendant. In return, for the benefit conferred on the defendant by entering into the plea agreement, the defendant agrees not to seek a downward departure or variance from the range of twenty-four (24) to sixty (60) months as agreed to by the parties pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.

PSR ¶ 5, at 4. The PSR also explains Bhakta has agreed to “waive all rights conferred by 18 U.S.C. § 3742.” PSR ¶ 6, at 4. The PSR calculates a base offense level of 24 and then applies a “Chapter Four Enhancement, ” because:

The defendant was at least 18 years old at the time of the instant offense of conviction; the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense; therefore, the defendant is a career offender. The offense level for a career offender is 32 because the statutory maximum term of imprisonment is 20 years. USSG §4B1.1(b).

PSR ¶ 26, at 7. After applying a 3-level reduction for Bhakta's acceptance of responsibility, the PSR arrives at a total offense level of 29. See PSR ¶¶ 27-29, at 7. After reviewing Bhakta's criminal history, the PSR computes a criminal history score of 7, which, “[a]ccording to the sentencing table in USSG Chapter 5, Part A, . . . establishes a criminal history category of IV.” PSR ¶¶ 37-38, at 10. The PSR also explains that Bhakta “is a career offender” and thus determines that the “criminal history category is VI” under “USSG § 4B1.1(b).” PSR ¶ 39, at 10. In relevant part, the PSR identifies Bhakta's New Mexico state Robbery and New Mexico state Drug Trafficking offenses as bases for computing Bhakta's subsequent criminal history score of seven and for applying the career offender designation. See PSR ¶¶ 34-35, at 8-9. The PSR states: “Based upon a total offense level of 29 and a criminal history category of VI, the guideline imprisonment range is 151 months to 188 months.” PSR ¶ 71, at 17.

         Bhakta advances one legal objection to the PSR's calculation of his guideline imprisonment range. See Objections at 7. Bhakta states:

A clerical error in the state system, resulting in separate sentencing dates, should not form the basis for “Career Offender” designation. The PSR calculates the defendant as a Career Offender (PSR ¶ 26) because the current conviction is a controlled substance felony offense and the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense. There is no disputing that the current conviction is a felony controlled substance offense, however, the defendant should not be deemed a ...

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