United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Samuel A. Hurtado
Assistant United States Attorney United States Attorney's
Office Albuquerque, New Mexico Attorneys for the Plaintiff
A. Baiz Assistant Federal Public Defender Federal Public
Defender's Office Albuquerque, New Mexico Attorneys for
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiff
United States' Sentencing Memorandum, filed August 22,
2016 (Doc. 61)(“Sentencing Memorandum”). The
Court held a Sentencing Hearing on March 21, 2017. The
primary issues are whether, when calculating Defendant Grant
Hykes' offense level under United States Sentencing
Guidelines (“U.S.S.G.”), the Court should: (i)
apply a 3-level enhancement for deliberately targeting a
government employee, see U.S.S.G. § 3A1.2; and
(ii) apply a 2-level enhancement for reckless endangerment
during flight, see U.S.S.G. § 3C1.2. The Court
concludes that neither enhancement is appropriate.
November 9, 2015, Detective Jerry Koppman, a Bernalillo
County Sherriff's Deputy, saw, outside of his residence,
a white man parked on a unique sport motorcycle. The man
aroused Koppman's suspicions, Koppman exited his
residence to accost the man, and the unknown man quickly and
recklessly departed the area on the motorcycle. The next day,
a confidential informant called Koppman in a panic,
indicating Hykes was sick of Koppman interfering with him,
and was threating to kill Koppman and Koppman's family.
The following day, Koppman observed the unknown man again
parked in front of Koppman's house, and Koppman again
left his residence to accost the unknown man. When the
unknown man again fled on his motorcycle, Koppman followed in
an unmarked vehicle, and the unknown man took deliberate and
sudden evasive action.
November 12, 2015, the next day, the Bernalillo County
Sherriff's Office (“BCSO”) began to
investigate one of Hykes' social media profiles and found
a photograph that Hykes had posted approximately ten months
earlier that showed Hykes holding a large-caliber revolver to
his head. The BCSO also discovered that Hykes is a convicted
felon and located Hykes in a restaurant parking lot near his
mother's 2008 silver Ford F-150 truck. When detectives
approached Hykes, he threw a loaded 9mm handgun into the
truck's bed. When detectives later searched the truck
with the verbal and written consent of Hykes' mother, the
truck's owner, they discovered a .50-caliber rifle with a
mounted scope behind the truck's seat.
Hykes' arrest, detectives found a text message on
Hykes' cellular telephone in which Hykes bragged that he
had drawn a weapon on Koppman the prior day, November 11,
2015. Hykes admits that the text message referred to the
incident where Koppman followed a suspicious motorcycle. A
woman, who was with Hykes during that incident and when Hykes
was arrested, told detectives that she was aware that Hykes
had a gun on his person just before he was arrested. The
detectives determined that Hykes was a felon in possession of
1, 2016, Hykes pleaded guilty to one count of being a felon
in possession of a firearm and ammunition contrary to 18
U.S.C. § 922(g)(1). See Plea Minute Sheet,
filed June 1, 2016 (Doc. 55). On August 11, 2016, the United
States Probation Office (“USPO”), in its
Presentence Report, filed August 11, 2016 (Doc.
57)(“PSR”), calculated a base offense level of 20
and applied a 3-level reduction for acceptance of
responsibility for a total offense level of 17. Because Hykes
had a criminal history category of II, the USPO calculated a
guidelines range of 27 to 33 months of imprisonment,
see PSR ¶ 98, at 23, up to 3 years of
supervised release, see PSR ¶ 101, at 24, and a
$100.00 special assessment, see PSR ¶ 106, at
24. Hykes is not eligible for probation. See PSR
¶ 103, at 24.
August 18, 2016, the United States requested an evidentiary
hearing as part of Hykes' sentencing hearing, because it
intended to present evidence from Koppman that indicated that
Hykes should be assessed two sentencing enhancements that the
PSR did not identify: (i) a 3-level enhancement for
deliberately targeting a government employee under U.S.S.G.
§ 3A1.2; and (ii) a 2-level enhancement under U.S.S.G.
§ 3C1.2 for reckless endangerment during flight. If the
Court applied the two requested enhancements, Hykes'
total offense level would be 22, so ___ given Hykes'
category II criminal history ___ Hykes' guidelines
sentencing range would be 46 to 57 months.
August 22, 2016, the United States filed the Sentencing
Memorandum, which reiterates the United States' request
for the two sentencing enhancements. The United States argues
engaged in uniquely egregious conduct which had a negative
impact on other people. Specifically, defendant took
affirmative steps to follow through with his plan to rob and
kill Det. Koppman. Defendant's brazen acts of terrorizing
Det. Koppman ___ a government officer ___ and his family are
disturbing and unacceptable. Det. Koppman endured a quality
of life that was meaningfully worse because of what defendant
did. It also impacted Det. Koppman financially. Because of
defendant's treachery, Det. Koppman was forced to quickly
relocate his family for safety reasons to a new home. As a
result, Det. Koppman had to sell his old home for a reduced
price, losing a large amount of money in the process.
Memorandum at 7-8. The United also argues that the
enhancement for reckless endangerment in flight is
appropriate, because Hykes created a public danger when he
drove his motorcycle recklessly when fleeing Koppman on
November 11, 2015.
December 6, 2016, the USPO declined to modify its PSR to
include the two requested enhancements. See Addendum
to the Presentencing Report at 1-2, filed December 6, 2016
(Doc. 70)(“PSR Addendum”). The PSR Addendum
indicates that the 3-level enhancement for targeting a
government officer or employee is inappropriate, because: (i)
the offense of being a felon in possession of a firearm is
not an offense against a person; (ii) there is no indication
that Hykes knew that he was going to encounter Koppman in the
restaurant parking lot where he was arrested; and (iii) there
is no evidence that Hykes was motivated to possess a firearm
at that time by Koppman's status as a police officer.
See PSR Addendum at 1. The PSR Addendum also
indicates that the 2-level enhancement for reckless
endangerment during flight is likewise inappropriate,
because: (i) Hykes did not attempt to flee when he was
arrested for the ...