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United States v. Jensen

United States District Court, D. New Mexico

November 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NATHAN JENSEN, Defendant.

          MEMORANDUM OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT

         THIS 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 OVERRULED.

         BACKGROUND

         Defendant 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.

         On May 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.

         Defendant 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.

         Defendant 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.

         DISCUSSION

         I. Armed Career Criminal Act.

         ACCA 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).

         A violent felony[1] 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 ...

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