United States District Court, D. New Mexico
S. Tierney Acting United States Attorney Presiliano Torrez
Lynn Wei-Yu Wang Assistant United States Attorneys United
States Attorney's Office Albuquerque, New Mexico
Attorneys for the Plaintiff
J. Padilla Federal Public Defender Federal Public
Defender's Office Albuquerque, New Mexico Attorney for
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Objections to the Presentence Report, filed July 25, 2017
(Doc. 60)(“Objections”). The primary issues are:
(i) whether the Court should apply a 2-level enhancement
under U.S.S.G. § 2K2.1(b)(3)(B), because Defendant Lucas
Maldonado's offense involved a destructive device; (ii)
whether the Court should apply a 4-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B), because Maldonado used or
possessed a firearm in connection with another felony
offense; and (iii) whether the Court should apply a 2-level
enhancement under U.S.S.G. § 3C1.2, because Maldonado
recklessly created a substantial risk of death or serious
bodily injury to another person while fleeing law
enforcement. The Court concludes that enhancements are
warranted under U.S.S.G.§ 2K2.1(b)(3)(B), §
2K2.1(b)(6)(B), and § 3C1.2, so the Court overrules
Objections involve two incidents Maldonado had with state
law-enforcement agents -- separate from the offense of
conviction -- in which the state either released Maldonado or
he evaded arrest. See Presentence Investigation
Report ¶¶ 11-15, at 5-6, filed April 7, 2017 (Doc.
54)(“PSR”). The first incident occurred on
February 8, 2013, and involved Maldonado refusing to comply
with a traffic stop. See PSR ¶ 11, at 5. While
Maldonado was traveling at a high rate of speed, a New Mexico
police officer signaled Maldonado to pull over. See
PSR ¶ 11, at 5. Instead of complying, Maldonado zipped
away from the officer at over 100 miles per hour.
See PSR ¶ 11, at 5. Maldonado eventually lost
control of the car, and jumped from the moving vehicle.
See PSR ¶ 11, at 5. He sprinted from the scene
with a black backpack and dropped a magazine loaded with .45
caliber ammunition as he ran. See PSR ¶ 11, at
5. He then hurdled a wall. See PSR ¶ 11, at 5.
Maldonado escaped arrest. See PSR ¶ 11, at 5. A
.45 caliber handgun was later recovered near the wall
Maldonado vaulted. See PSR ¶ 11, at 5. A second
magazine with nine rounds of 9mm ammunition was located in
the front seat of the car. See PSR ¶ 11, at 5.
Maldonado's charge for this offense remains pending.
See PSR ¶ 11, at 5.
second incident happened on January 31, 2014, and concerned a
stolen car, more firearms, and methamphetamine. See
PSR ¶ 12, at 5. An Albuquerque police officer,
conducting a random parking lot patrol, found Maldonado
entering a stolen vehicle with his eight-year-old son, who
was wearing a backpack. See PSR ¶ 12, at 5. The
officer searched the backpack and discovered two unloaded
AK-47 magazines, a loaded .233 caliber machine pistol, and a
cache of more ammunition of varying calibers. See
PSR ¶ 12, at 5. A search of Maldonado yielded forty
grams of methamphetamine. See PSR ¶ 12, at 5.
Maldonado was arrested, but his case was subsequently
dismissed. See PSR ¶ 12, at 5. The charges,
however, were later refiled, and that case remains pending.
See PSR ¶ 12, at 5.
was involved in two other relevant incidents, one in
February, 2014, and the other in June, 2015. See
Superseding Indictment at 1-3, filed July 30, 2015 (Doc.
11)(“Indictment”). In February, 2014, Bernalillo
County detectives observed Maldonado visiting the residence
of a known methamphetamine dealer and stopped Maldonado in
his vehicle after he left the home. See PSR ¶
13, at 5. A pat-down search yielded an empty gun holster on
Maldonado's belt. See PSR ¶ 13, at 5. The
detectives later uncovered a loaded Ruger model P345 .45
caliber pistol on the car's passenger side floorboard.
See PSR ¶ 15, at 6. The pistol fit
Maldonado's holster. See PSR ¶ 22, at 8. A
records check revealed that Maldonado was a convicted felon.
See PSR ¶ 15, at 6. Maldonado was charged with
being a felon in possession of a firearm, and subsequently
released on bond. See PSR ¶ 15, at 6.
2015, the Bernalillo County Sherriff's Department
(“BCSO”) learned that Maldonado was living in,
and distributing methamphetamine, from an apartment in
southwest Albuquerque. See PSR ¶ 16, at 6. On
June 10, 2015, BCSO detectives spotted Maldonado leaving that
apartment with a woman, Lorraine Duran, and observed
Maldonado placing items into a black Honda Accord.
See PSR ¶ 16, at 4; Plea Agreement at 4, filed
February 9, 2017 (Doc. 51)(“Plea”). Detectives
subsequently approached and arrested Maldonado. See
PSR ¶ 16, at 4. When the detectives looked in the
vehicle, they saw a black semiautomatic handgun on the
vehicle's center console. See PSR ¶ 17, at
6; Plea at 4. Bureau of Alcohol, Tobacco, and Firearm agents
subsequently appeared at the scene and also observed the gun
in the car. See PSR ¶ 17, at 6.
obtaining a search warrant, ATF agents recovered the gun and
also discovered a firearm magazine in a backpack found in the
car's backseat. See PSR ¶ 19, at 7; Plea at
4. The handgun was a loaded Smith & Wesson model SW40VE
.40 caliber pistol and it had one round in the chamber.
See PSR ¶ 19, at 7; Plea at 4. The firearm
magazine was loaded with twelve rounds of .40 caliber
ammunition, and it fit the .40 caliber pistol. See
PSR ¶ 19, at 7; Plea at 4. An ATF agent later tested the
gun, and it functioned as designed. See PSR ¶
20, at 7; Plea at 4.
was also a briefcase and body armor in the black Honda
Accord. See PSR ¶ 17, at 6. The briefcase had a
small baggie containing a material suspected to be heroin,
glass pipe, and syringes. See PSR ¶ 19, at 7.
The body armor was labelled with the Defendant's alias
--“Ruckus.” See PSR ¶ 19, at 7.
agents also searched Maldonado's apartment. See
PSR ¶ 18, at 6-7. In plain view was a modified
“sawed off” shotgun. PSR ¶ 18, at
Agents later determined that the shotgun was a Savage Arms
model 311A 12-gauge double-barrel shotgun with a barrel
length of eighteen inches, an overall length of twenty-eight
inches, and a bore diameter of .73 inches. See PSR
¶¶ 18-20, at 7. Agents also recovered two rounds of
12-gauge ammunition from the apartment. See PSR
¶ 18, at 7.
Court overrules Maldonado's Objections that are not moot.
The Court concludes that it should apply a 2-level
enhancement under U.S.S.G. § 2K2.1(b)(3)(B), because a
shotgun with a bore diameter of .73 inches is a destructive
device. A 4-level enhancement for possessing a firearm in
connection with another felony offense under U.S.S.G. §
2K2.1(b)(6)(B) is appropriate, because the January, 2014
offense was highly similar to the offense of conviction, and
similar offenses were repeated over time. Finally, the Court
applies a 2-level enhancement under U.S.S.G. § 3C1.2,
because Maldonado recklessly created a substantial risk of
death or serious bodily injury to another person by fleeing
from law enforcement in a car at over 100 miles per hour.
That offense was also highly similar to the offense of
THE COURT OVERRULES MALDONADO'S OBJECTION TO A 2-LEVEL
ENHANCEMENT UNDER ...