United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Kimberly Brawley
David M. Walsh Assistant United States Attorneys United
States Attorney's Office Albuquerque, New Mexico
Attorneys for the Plaintiff.
C. Serna David C. Serna Attorney at Law Albuquerque, New
Mexico Attorney for the Defendant.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant's
Amended Objections to Presentence Report, Motions for
Downward Variance and Departure, and Motion to Run Sentence
Concurrent to State Sentence, filed August 15, 2016 (Doc.
98)(“Objections”). The Court held a hearing on
August 23, 2016. The primary issues are: (i) whether the
Court should, under U.S.S.G. § 4A1.2(e), assess 3
criminal history points for Defendant Marc Tapia's state
conviction for Aggravated Battery with a Deadly Weapon, which
depends on whether the Court should count that
conviction's sentence as 18 months imprisonment -- as a
state court originally, but incorrectly, imposed -- or as 238
days imprisonment, as the state court originally intended and
recently imposed in an amended judgment; (ii) whether
Tapia's base offense level should be 20, which depends on
whether Tapia has a prior felony conviction for a crime of
violence or a controlled substance offense; (iii) whether to
assess 3 criminal history points for Tapia's
prostitution- and automobile theft-related convictions, which
depends on whether those offenses are relevant to Tapia's
instant offense; (iv) whether Tapia's criminal category
is V or VI; (v) whether the Court will grant a downward
adjustment or additional custody confinement credit, which
depends on whether the prostitution- and automobile
theft-related offenses are relevant to Tapia's instant
offense. The Court concludes that: (i) Tapia's Aggravated
Battery with a Deadly Weapon conviction does not call for 3
criminal history points under U.S.S.G. § 4A1.2(e),
because the Court will use the recently amended sentence --
238 days -- and not the originally imposed 18 month sentence;
(ii) Tapia's base offense level is 20, because
Tapia's controlled substance conviction supports the 20
base offense level pursuant to U.S.S.G. §
2K2.1(a)(4)(A); (iii) the Court assesses 3 criminal history
points for Tapia's prostitution- and automobile
theft-related convictions, because they are not relevant
conduct to his instant offense; (iv) Tapia's criminal
history score is 11, so his criminal history category is V;
and (v) the Court will not grant a downward adjustment or
grant additional custody confinement credit for time served
on Tapia's prostitution- and automobile theft-related
convictions, because the convictions are not relevant conduct
to his instant offense.
April 11, 2012, the Albuquerque Police Department's VICE
unit, working to “apprehend females who were using the
internet . . . to solicit prostitution, ” contacted a
woman named Montana Levasseur and agreed to pay her $300.00
for sex in a hotel room. Presentence Report ¶¶
13-14, at 5, disclosed on October 2, 2017, filed November 21,
2017 (Doc. 117) (“PSR”). Levasseur arrived at the
hotel room with a crate containing two small dogs.
See PSR ¶ 15, at 5. Levasseur called Tapia on
the telephone, and told him that “she was in the room
and was safe.” PSR ¶ 13, at 5. After arresting
Levasseur, APD allowed Levasseur to call Tapia to tell him
that she “got busted, ” and to ask him to come to
the hotel and pick up her dogs. See PSR ¶¶
15-16, at 5-6. Tapia agreed, and, when he arrived at the
hotel in his car, APD officers ordered him to exit the
vehicle, but Tapia tried to drive from the area. PSR ¶
16, at 5-6. Tapia's car stalled, and APD officers
apprehended him. See PSR ¶¶ 16-17, at 5-6.
APD officers found, among other things, a pistol and
ammunition in Tapia's car. See PSR ¶¶
19-20, at 6-7.
November, 2012, a grand jury indicted Tapia for possession of
a firearm and ammunition by a felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). See
Indictment at 1-2, filed November 27, 2012 (Doc. 2).
Plaintiff United States of America and Tapia reached a plea
agreement. See Plea Agreement, filed July 30, 2015
(Doc. 48). In the plea agreement, Tapia agrees that,
“[o]n or about April 11, 2012, ” he
“knowingly possessed a loaded Cobra, model C22, .22LR
caliber Derringer” and ammunition in a car he was
driving “prior to being encountered by law
enforcement.” Plea Agreement ¶ 6(a), at 3. Tapia
also admits that “[p]rior to April of 2012, [he]
previously had . . . felony convictions” in the Second
Judicial District, County of Bernalillo, State of New Mexico,
and in the County of Los Angeles, Superior Court of
California. Plea Agreement ¶ 6(a), at 3. Tapia also
waives his right to appeal any conviction, sentence, or fine
“at or under the maximum statutory penalty authorized
by law, ” but reserves the right to appeal “the
sole issue of the Court's application of the definition
of ‘crime of violence' to his base offense level
under U.S.S.G. § 2K2.1(a).” Plea Agreement ¶
14, at 7. Tapia also agreed to waive “any collateral
attack” on any conviction, sentence, or fine pursuant
to 28 U.S.C. §§ 2241, 2255, “or any other
extraordinary writ, except on the issue of defense
counsel's ineffective assistance.” Plea Agreement
¶ 14, at 7.
The Pre-Sentence Report.
United States Probation Office (“USPO”) disclosed
its PSR on October 2, 2015. See PSR at 1. The PSR
set Tapia's Base Offense Level at 20, because Tapia
“committed the instant offense subsequent to sustaining
at least one felony conviction for a crime of violence
offense.” PSR ¶ 28, at 8 (citing U.S.S.G. §
2K2.1). Although the PSR does not expressly state which crime
of violence felony conviction calls for a base level of 20,
the parties' briefing indicates that the felony in
question is Tapia's 1997 conviction for Aggravated
Battery with a Deadly Weapon. See Objections ¶
25(I), at 18 (arguing that Tapia's Aggravated Battery
with a Deadly Weapon conviction calls for 0 criminal history
points such that his base offense level should not be 20);
PSR ¶ 41, at 9-10 (stating that Tapia was
convicted of Aggravated Battery with a Deadly Weapon for
stabbing a man in the chest). The PSR adds 4 levels for
Specific Offense Characteristics, because “the
defendant was found in possession of a firearm and narcotics
with the intent to distribute, classified as a felony.”
PSR ¶ 28, at 8. The PSR subtracts 2 levels, because
Tapia “has clearly demonstrated acceptance of
responsibility, ” and subtracts 1 level further,
because Tapia “has assisted authorities in the
investigation or prosecution of the defendant's own
misconduct by timely notifying authorities of the intention
to enter a plea of guilty.” PSR ¶¶ 35-36, at
8. Accordingly, the PSR calculates Tapia's Total Offense
Level as 21. See PSR ¶ 37, at 8.
also details Tapia's criminal history, see PSR
¶¶ 40-47, at 9-14, for which the USPO assigns a
criminal history score of 14, see PSR ¶ 48, at
14. In 1990, Tapia was sentenced in California Superior Court
to five years imprisonment for Rape in Concern with
Force/Violence, and Robbery. See PSR ¶ 40, at 9
(assigning 0 criminal history points). In 1997, the Second
Judicial District Court, County of Bernalillo, State of New
Mexico, sentenced Tapia to “3 years imprisonment, 18
months suspended, 18 months supervised probation, ” for
“Aggravated Battery with a Deadly Weapon (Great Bodily
Harm).” PSR ¶ 41, at 9-10 (assigning 3 criminal
history points). In 1998, Tapia pled guilty in the North
Judicial District Court in Orange County, California, to
“Corporal Injury [of a] Cohabitant, ” and
“Brandishing a Deadly Weapon.” PSR ¶ 42, at
10 (assigning 0 criminal history points). In 2003, Bernalillo
County's Second Judicial District Court sentenced Tapia
to “18 months custody, 18 months suspended, 3 years
supervised probation, 1 year parole, ” for
“Possession of a Controlled Substance (4th Degree
Felony).” PSR ¶ 43, at 10-11. In 2005, Bernalillo
County's Second Judicial District Court again sentenced
Tapia to “18 months custody, 18 months suspended, 3
years supervised probation, 1 year parole, ” this time
for “False Imprisonment (4th Degree Felony).” PSR
¶ 44, at 11-12 (assigning 2 criminal history points). In
2012, the Bernalillo County Metropolitan Court sentenced
Tapia to “73 days custody” for “Criminal
Damage to Property.” PSR ¶ 46, at 12-13 (assigning
2 criminal history points). In 2013, Bernalillo County's
Second Judicial District Court sentenced Tapia to two and a
half years imprisonment and two years of parole for
“Possession of a Controlled Substance (Felony).”
PSR ¶ 45, at 12 (assigning 3 criminal history points).
In 2015, Bernalillo County's Second Judicial District
Court sentenced Tapia to (i) “18 months custody, 1 year
habitual offender enhancement, 1 year parole” for
“Promoting Prostitution (Soliciting Patrons)”;
(ii) “18 months custody, 1 year habitual offender
enhancement, 1 year parole, ” for “Accepting the
Earnings of a Prostitute”; (iii) “18 months
custody, 1 year parole, ” for “Receiving or
Transferring Stolen Motor Vehicle”; (iv) “18
months custody, 1 year parole, ” for “Possession
of a Controlled Substance (Felony-Narcotic)”; and (v)
“18 months custody, 1 year parole, ” for
“Aggravated Fleeing a Law Enforcement Officer, ”
with “said terms . . . to run consecutively, 4 years
and 6 months custody suspended, the actual term to be served
is 5 years custody, 1 year parole, 4 years and 6 months
supervised probation.” PSR ¶ 47, at 13-14
(assigning 3 criminal history points). The USPO issued an
Addendum to the Presentence Report (dated January 25, 2016),
filed November 21, 2017 (Doc. 118)(“First
Addendum”), adding Tapia's medical and employment
information. See First Addendum at 1.
Tapia's First Objections to the PSR.
makes several legal objections to the PSR. See
Objections to Presentence Report, Motions for Downward
Variance and Departure, and Motion to Run Sentence Concurrent
to State Sentence, filed June 6, 2016 (Doc. 88)(“First
Objections”). First, Tapia argues that the United
States Sentencing Guidelines' 2015 edition is applicable
to his case, because the Guidelines provide that a court
shall use the Guidelines' edition in effect when the
defendant is sentenced. See First Objections
¶¶ 1-2, at 3-4 (citing U.S.S.G. 1b1.11(a)).
Tapia argues that Guidelines' commentary and applicable
notes “are authoritative.” First Objections
¶ 3, at 4.
Tapia asserts that he deserves a downward variance in light
of the 22-month “period of delay after the Detainer was
lodged against him” and before he was taken into
federal custody. First Objections ¶¶ 4-10, at 4-8.
Tapia argues that his sentence for
“prostitution-related charges” should not count
as a “prior sentence” calling for 3 criminal
history points, because those charges “aris[e] out of
the circumstances” of the instant firearm-related
offense, and, Tapia argues, the Guidelines indicate that a
“prior sentence” does not include “relevant
conduct to the instant offense.” First Objections
¶ 15, at 11 (citing U.S.S.G. § 4A1.2, Appl. Note
1). Tapia asserts that both his prostitution-related charges
and firearms-related charges derive from the same incident,
because the Albuquerque Police Department discovered the
firearms in his car after they arrested him for the
prostitution-related charges. See First Objections
¶¶ 13-17, at 8-11. Additionally, Tapia argues that
the prostitution-related charges and the firearm-related
charges are not “similar in nature” and, although
the charges “are potentially groupable under U.S.S.G.
§ 3D1.2, ” they are “not groupable in how
they are processed in this case.” First Objections
¶ 16, at 11-12.
Tapia argues that his sentence should run concurrently with
his “undischarged term of imprisonment.” First
Objections ¶¶ 18-24, at 12-14.
Tapia argues that the Court should not assess 3 criminal
points pursuant to U.S.S.G. § 4A1.1(a) -- which adds 3
criminal history points for each prior sentence
“exceeding one year and one month” -- because a
state court judge mistakenly sentenced Tapia to 18 months,
when the judge intended to sentence Tapia to 238 days. First
Objections ¶ 25(A)-(G), at 14-19.
Tapia argues that one of his prior sentences -- the one
rendered in No. T-4-DV-2012-003628 -- did not exceed 60 days
of incarceration, so U.S.S.G. § 4A1.1(c), not §
4A1.1(b), should apply. See First Objections
¶¶ 27-28, at 18-19. Tapia contends that the
Metropolitan Court “changed the amount of time [he]
spent in custody from 73 to 58 days.” First Objections
¶ 27, at 19.
Tapia contends that the Court should grant a downward
variance because of his “paternal responsibilities to a
teenage daughter” such that he would be immediately
released to a halfway house. First Objections ¶ 28-42,
The USPO'S Second Addendum.
USPO responded to Tapia's Objections in its Second
Addendum to the Presentence Report, filed June 30, 2016 (Doc.
90)(“Second Addendum”). The USPO begins by noting
that Tapia argues that the Court should use the 2015
Guidelines to calculate his sentence (“Objection No.
1”), and the USPO responds that, although the 2015
Guidelines were released after it disclosed its PSR, the USPO
confirmed that any changes between the 2014 and 2015
Guidelines do not impact Tapia. See Second Addendum
USPO then states that Tapia “contests the custody
confinement credit” in the PSR, because, as the USPO
characterizes it, Tapia argues that “the two subsequent
state court cases, D-202-CR-2012-3528, and
D-202-CR-2012-03337 are cases that arise out of the same
circumstances as the instant offense on April 11,
2012.” Second Addendum at 1 (“Objection No.
2”). The USPO asserts that Tapia “will receive
custody confinement credit for the instant offense” for
only five days, because the other cases Tapia mentions are
“similar to the instant offense” but “not
related.” Second Addendum at 1-2. The USPO contends:
The conduct in Case No. D-202-CR-2012-3528, occurred between
January 5 and 13, 2012, with the exception of a charge for
receiving/transferring a stolen motor vehicle that occurred
between April 2, 2012, and June 12, 2012. During the instant
offense, discovery materials do not report the defendant was
operating a stolen vehicle he received or transferred. The
conduct in Case No. D-202-CR-2012-03337, occurred on January
Addendum at 1. Consequently, the USPO asserts that Tapia
“will receive custody confinement credit for the
instant offense from April 11, 2012, to April 15, 2012, for a
total of five days.” Second Addendum at 1-2. The USPO
adds that “[d]ue to the defendant being released to
federal custody on a writ of habeas corpus on the
aforementioned cases, the defendant will not receive further
credit.” Second Addendum at 2.
USPO then considers Tapia's argument that those cases --
detailed in PSR's ¶ 47 -- are related such that the
USPO should not assess criminal history points for them
(“Objection No. 3”) and the USPO asserts that,
because they are similar but not related to the instant case,
criminal history points should be applied. See
Second Addendum at 2.
the USPO considers Tapia's assertion that his sentence
should run concurrently to his sentence for Case No.
D-202-CR-2012-03528, and that the Court should adjust
Tapia's sentence for time already served on the state
sentence (“Objection No. 4”). Second Addendum at
2. The USPO states that Tapia's sentence should run
consecutive to Tapia's other sentences, and that no
downward departure pursuant to U.S.S.G. § 5G1.3 applies,
because that state case “is not related to the instant
offense.” Second Addendum at 2. The USPO notes that the
Court has discretion to impose the sentences concurrently.
Second Addendum at 2.
USPO disputes Tapia's contention that it should not
impose 3 criminal history points pursuant to U.S.S.G. §
4A1.2 because of the state court's erroneous sentencing
judgment setting his sentence at 18 months instead of 238
(“Objection No. 5”). Second Addendum at 2-3. The
USPO asserts that, per U.S.S.G. § 4A.1.2, criminal
history points are based on the pronounced sentence, and not
on the time served. See Second Addendum at 3 (citing
U.S.S.G. § 4A.1.2, App. No. 2).
the USPO considers Tapia's Objection to the 2 criminal
history points imposed for a sentence of more than 60 days in
case No. T-4-DV-2012-003628, because that sentence was
adjusted to fewer than 60 days (“Objection No.
6”). Second Addendum at 3. The USPO concludes that
“[a]fter review of the amended judgment, the defendant
will be assessed one criminal history point rather than
two.” Second Addendum at 3.
USPO then considers Tapia's factual objections regarding
the events recounted in PSR's ¶ 53 (“Objection
No. 7”) and ¶ 56 (“Objection No. 8”)
-- describing violent altercations -- which Tapia contends
never happened. The USPO states that it will not change those
paragraphs, because the USPO drew the facts from police
reports, and the “identifiers listed in the APD report
are consistent with the identifiers reported by the
defendant.” Second Addendum at 3.
USPO considers Tapia's Objection to the PSR's ¶
67 -- which states that Tapia failed to report his
residential address, as required for sex offenders
(“Objection No. 9”). Second Addendum at 4.
Although Tapia contends that he did not need to update his
address, the USPO states that it will keep the information in
the PSR, because, “[a]ccording to law enforcement
records, the defendant did not properly report his residence
as required.” Second Addendum at 4. The USPO then
considers Tapia's objection to the PSR's ¶ 69
(“Objection No. 10”), which lists a dismissed
charge for failure to register as a sex offender, and the
USPO states that “[b]y way of this addendum it is noted
the defendant was in custody when the charge was
filed.” Second Addendum at 4. The USPO also asserts
that it will retain references to Tapia's alleged
possession of a stolen 2007 John Deer Excavator, even though
Tapia contends he never was in possession of the 2007 John
Deer Excavator (“Objection No. 11”). Second
Addendum at 4.
USPO next states that it will add certain facts that Tapia
alleges into the PSR, by way of the Second Addendum.
See Second Addendum at 4-5. Specifically, the USPO
states that it adds: (i) that Tapia witnessed his
mother's boyfriend shoot himself in the head
(“Objection No. 12”); (ii) that Jimmy Russell,
Tapia's adoptive father, never hit or abused Tapia, and
that Tapia's uncles hit and abused him, and encouraged
his cousins to fight regularly (“Objection No.
13”); and (iii) that he had a brief relationship with a
woman, and they had a daughter named Vanessa, and the woman
placed Vanessa up for adoption while Tapia was incarcerated,
against Tapia's wishes (“Objection No. 14”).
Second Addendum at 4-5.
The United States' Response.
United States filed its Response on August 10, 2016.
See United States' Response to Defendant's
Objections to Presentence Report and Sentencing Memorandum,
filed August 10, 2016 (Doc. 97)(“USA Response”).
The United States asserts that it “concurs with the
responses of the United States Probation Office, with the
sole caveat that the United States does not object to having
the Defendant sentenced within the sphere of a criminal
category of v.” USA Response at 2. The United States
This would trigger a guideline range of 70-87 months.
Consistent with the plea agreement, the United States does
not oppose having Defendant's sentence run concurrently
to any undischarged term of state imprisonment. The United
States has also agreed to recommend a sentence at the low end
of the applicable range, thereby arriving at the 70 month
recommendation. Consideration was given to some of the delay
that occurred with respect to bringing Defendant into federal
USA Response at 2.
Tapia's Objections Supplement.
supplemented his Objections on July 12, 2016. See
Supplement to Objections to Presentence Report, Motions for
Downward Variance and Departure, and Motion to Run Sentence
Concurrent to State Sentence, filed August 12, 2016 (Doc.
93)(“Supp. Objections”). Tapia first argues that
his felony conviction for Aggravated Battery with a Deadly
Weapon, see PSR ¶ 41, at 9-10, does not meet
either § 4A1.2(e)(1) or (e)(2), so § 4A1.2(e)(3)
applies: the conviction is not a “prior
sentence” pursuant to § 4A1.2(a), and therefore
does not call for any criminal history points pursuant to
§ 4A1.1(a) or (b). See Supp. Objections at 1-2.
Second, Tapia argues that, because his Aggravated Battery
with a Deadly Weapon conviction calls for no criminal history
points, the USPO should apply a base offense level of 18,
pursuant to § 2K2.1(a)(5), because § 2K2.1(a)(4)(A)
-- which calls for a 20 point base offense level if the
defendant has a previous crime of violence felony conviction
-- applies only when that felony conviction receives criminal
history points under § 4A1.1(a), (b), or (c).
See Supp. Objections at 1-2 (citing U.S.S.G. §
2K2.1 App. No. 10).
Tapia's Amended Objections to the PSR.
Amended Objections, Tapia repeats arguments from his First
Objections, with some additions and revisions. See
Objections ¶¶ 1-42, at 3-23. Regarding his argument
for a downward variance in light of a delay in taking him
into federal custody, Tapia adds that, despite his
“repeated attempts to bring himself into Federal
custody, ” more than 23 months have passed since his
indictment. Objections ¶ 7, at 6. Tapia also asserts
that his attorney “made calls to the U.S. Marshal and
to the Assistant U.S. Attorney . . . regarding his case on
March 11, 2013.” Objections ¶ 7, at 6.
also supplements his argument that his
“prostitution-related charges” should not count
as a “prior sentence” calling for 3 criminal
history points. See First Objections ¶ 15, 11.
Tapia adds that, if the Court concludes that the
prostitution-related sentence is a prior sentence, the Court
should assess, pursuant to U.S.S.G. § 4A1.1(c), only 1
point, and not 3 points, because Tapia appealed that
sentence, and, under New Mexico law, “all appeals have
the effect of a stay of execution of the sentence during the
pendency of the appeal.” Objections ¶ 17, at 11
(citing N.M. Stat. § 31-11-1A).
also argues that because he was “convicted of charges
arising on the same date and time from the same circumstances
and incident as the present case, . . . [he] should be
credited a minimum of 30 months towards his federal
sentence.” Objections ¶ 21, at 13.
Tapia supplements his argument that the Court should not
assess 3 points pursuant to U.S.S.G. § 4A1.1(a) --
assessing 3 points for each prior sentence “exceeding
one year and one month” -- by explaining that a state
court judge mistakenly sentenced Tapia to 18 months, when the
judge indented to sentence Tapia to 238 days. First
Objections ¶ 25(A)-(G), at 14-19. Tapia states that, on
August 11, 2016, the Honorable Benjamin Chavez, District
Judge of the Second Judicial District, State of New Mexico,
“signed an Order correcting the previously filed
Judgment and Sentence to accurately reflect that the sentence
imposed by the Court was a term of 238 days, not 18
months.” Objections ¶ 25(A), at 14. Tapia provided
the Court with a copy of the Amended Judgment, Partially
Suspended Sentence & Commitment Pro Nunc Tunc, filed
August 15, 2016 (Doc. 98-6)(“Amended Judgment”),
which states that “[T]he Defendant is sentenced to the
custody of the Department of Corrections to be imprisoned for
a term of 3 years of which 28 months and 3 days is suspended
for an actual term of imprisonment of 238 days” and
that “Defendant is to receive 238 days pre-sentence
confinement credit.” Amendment Judgment at 1. In light
of the Amended Judgment, Tapia contends, that sentence does
not call for a 3-point assessment pursuant to U.S.S.G. §
4A1.2(e)(1), because it did not exceed a year and one month,
nor is a 3-point assessment appropriate pursuant to U.S.S.G.
§ 4A1.2(e)(2), because the sentence was not imposed
within 10 years of the instant offense. Objections ¶
25(H), at 18. Tapia further contends that because his prior
sentence does not call for 3 points pursuant to U.S.S.G.
§ A1.2(e), his base offense level must be reduced
“from 20 under U.S.S.G. § 2K2.1(a)(4)(A) to 18
under U.S.S.G. § 2K2.1(a)(5).” Objections ¶
25(I), at 18 (citing U.S.S.G. § 2K2.1, App. No. 10).
Tapia concludes that his base level should, in the end, be
18, because: (i) U.S.S.G. § 2.K2.1(a)(5) “is not
applicable because the derringer pistol possessed by Mr.
Tapia, has a rifled bore, [and] is not a firearm described in
26 U.S.C. § 5845(A)”; (ii) U.S.S.G. §
2K2.1(a)(6) “is not applicable because Mr. Tapia does
not meet the criteria”; and (iii) applying U.S.S.G.
§ 2K2.1(b)(6)(B) calls for increasing Tapia's base
offense level by 4 “to a level 16, ” and, because
“this resulting offense level is less than level 18, it
should be increased to level 18.” Objections ¶
25(J)-(O), at 19.