United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OVERRULING
DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT
MATTER comes before the Court upon Defendant Nathan
Jensen's (hereinafter “Defendant” or
“Jensen”) sentencing memorandum (Doc.
50), in which he objected to the Pre-Sentence
Investigation Report (the “PSR”) (Doc.
44). For the following reasons, the objections are
pled guilty to possession of a firearm and ammunition by a
person previously convicted of a felony. 18 U.S.C. §
922(g)(1). On April 12, 2017, the United States Probation
Office disclosed the PSR with a finding in paragraph 27 that
Defendant should be sentenced as an Armed Career Criminal
under the Armed Career Criminal Act (“ACCA”). In
addition to a statutory minimum sentence of 15 years, the PSR
also determined that Defendant's advisory sentencing
guideline range is 180-210 months based on an offense level
of 33, minus 3 points for acceptance of responsibility for a
total offense level of 30, and a criminal history category of
VI . This determination was based in part on three prior
felony robbery convictions, one of which occurred when Jensen
was seventeen years old. PSR at paragraphs 33, 39 and
42. Defendant's criminal history score was 26,
which places Defendant in criminal history category VI
regardless of his designation as an Armed Career Criminal.
Stated another way, even if Jensen was not classified as an
Armed Career Criminal, he would still be in Criminal History
Category VI because a defendant only has to have 13 criminal
history points to be in Category VI and Jensen has a total of
26 criminal history points.
11, 2017, while in custody awaiting sentencing on the
underlying offense, Defendant allegedly assaulted a
corrections officer. Probation filed a second addendum to the
PSR on September 13, 2017, recommending that Defendant's
total guideline offense level be increased to Level 33 based
on a denial of acceptance of responsibility as a result of
the alleged assault on a corrections officer. (Doc.
65). Consequently, Probation now maintains that
Defendant's total offense level is 33, which combined
with a criminal history category of VI, establishes an
advisory guideline imprisonment range of 235 to 293 months.
objected to the PSR, stating in part that (1) his first
robbery was committed when he was seventeen years old and
does not count as a “violent felony” under ACCA;
and (2) New Mexico's robbery statute is not a
“violent felony.” Defendant further argues that
Probation incorrectly calculated his criminal history points.
also filed two additional objections, apparently without
consulting his counsel. (Docs. 72 and 73).
The Court does not address these objections in this MOO and
reserves ruling on them at a later time.
Armed Career Criminal Act.
requires a fifteen-year mandatory minimum sentence when the
defendant has three or more qualifying “violent
felonies.” 18 U.S.C. § 924 et seq. The
Armed Career Criminal Act provides:
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or
both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence
of, or grant a probationary sentence to, such person with
respect to the conviction under section 922(g).
§ 924(e)(1) (emphasis added).
violent felony is defined as:
(B) …any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment
for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (ii) is burglary, arson, or extortion,
involves the use of explosives, or otherwise involves
conduct that presents a serious ...