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United States v. Tapia

United States District Court, D. New Mexico

December 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARC TAPIA, a/k/a Mark Anthony Russel, a/k/a, Mark Lovato, a/k/a Anthony Tapia Defendant.

          James 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

          David C. Serna David C. Serna Attorney at Law Albuquerque, New Mexico Attorney for the Defendant

          SECOND AMENDED MEMORANDUM OPINION AND ORDER [1]

         THIS 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; (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 18 under U.S.S.G. § 2K2.1(b)(6)(B), because Tapia committed the firearm offense in connection with another felony offense; (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.

         FACTUAL BACKGROUND

         On 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.

         PROCEDURAL BACKGROUND

         In 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.

         1. The Pre-Sentence Report.

         The 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.

         The PSR 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.

         2. Tapia's First Objections to the PSR.

         Tapia 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)).

         Second, Tapia argues that Guidelines' commentary and applicable notes “are authoritative.” First Objections ¶ 3, at 4.

         Third, 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.

         Fourth, Tapia argues that his sentence for “prostitution-related charges”[2] 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.

         Fifth, Tapia argues that his sentence should run concurrently with his “undischarged term of imprisonment.” First Objections ¶¶ 18-24, at 12-14.

         Sixth, 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.

         Seventh, 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.

         Eighth, 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, at 19-23.

         3. The USPO'S Second Addendum.

         The 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 at 1.

         The 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.”[3] 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 5, 2012.

         Second 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.

         The 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.

         Next, 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.

         The 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).

         Next, 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.

         The 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.

         The 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.

         The 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.

         4. The United States' Response.

         The 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 continues:

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 custody.

USA Response at 2.

         5. Tapia's Objections Supplement.

         Tapia 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[4]: 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).

         6. Tapia's Amended Objections to the PSR.

         In his 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.

         Tapia 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).

         Tapia 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.

         Finally, 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.

         7. The USPO's Third Addendum.

         The USPO submitted its Third Addendum to the Presentence Report, filed August 18, 2016 (Doc. 100)(“Third Addendum”). The USPO begins by again disputing Tapia's Objection No. 5 that the Court should not impose 3 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 days. Third Addendum at 1. 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 Third Addendum at 2-4 (citing U.S.S.G. § 4A.1.2, App. No. 2). The USPO asserts that in the United States Court of Appeals for the Tenth Circuit, “shorten[ing] the term of custody imposed based on the amount of custody time . . . served for reasons unrelated to . . . innocence or errors of law” is not a valid basis by which a court can exclude a sentence from its criminal history calculations. Third Addendum at 2 (citing United States v. Paul Pech-Aboytes, 562 F.3d 1234 (10th Cir. 2009)).

         Next, the USPO reconsiders Tapia's Objection No. 6 contesting the 2 criminal history points imposed for a sentence of more than 60 days, because that sentence was adjusted to fewer than 60 days. See Third Addendum at 2. The USPO states that, “[b]ased on the additional information added to Response No. 5, since the disclosure of the Second Addendum, the defendant will be assessed the 2 criminal history points as initially applied in the presentence report.” Third Addendum at 2-3.

         The USPO then considers Tapia's argument that he does deserve, pursuant to U.S.S.G. § 2K2.1(a)(6), a 20 point base offense level, because his felony sentencing was for only 238 days, not 18 months. (“Objection No. 15”). See Third Addendum at 3. The USPO states that, as discussed in the USPO's response to Tapia's Objection No. 6, the ...


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