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United States v. Tapia

United States District Court, D. New Mexico

February 12, 2018

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

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's oral Objections to the Presentence Investigation Report, disclosed on October 2, 2017, filed November 21, 2017 (Doc. 117)(“PSR”). The Court held a sentencing hearing on December 15, 2017. See Sentencing Minute Sheet, filed December 15, 2017 (Doc. 123). The primary issues are: (i) how many criminal history points the Court should assess for Defendant Marc Tapia's convictions for promoting prostitution, accepting the earnings of a prostitute, transferring or receiving stolen vehicles, possession of a controlled substance, and aggravated fleeing from a law enforcement officer, which depends on whether the sentences were suspended and whether the offenses were relevant conduct to the instant offense; and (ii) whether the Court should adjust Tapia's sentence in light of the time served for his promoting prostitution and accepting the earnings of a prostitute convictions, which depends on whether those offenses are relevant conduct to the instant offense. The Court concludes that: (i) the Court will not assess 3 criminal history points for Tapia's receiving or transferring a stolen motor vehicle conviction, because his sentence was suspended, but it will assess 3 criminal history points for Tapia's accepting the earnings of a prostitute conviction, because that offense is not relevant conduct to the instant offense; and (ii) the Court will adjust Tapia's sentence downward in light of the time Tapia served on his promoting prostitution sentence, because that offense was partially within the relevant conduct for the instant offense.

         FACTUAL BACKGROUND

         On April 11, 2012, Albuquerque, New Mexico, Police Department's VICE unit officers, 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. PSR ¶¶ 13-14, at 5. Levasseur met with an undercover officer in a hotel room, arriving with 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. APD detectives entered the hotel room and arrested Levasseur. See PSR ¶ 14, at 5. APD allowed Levasseur to call Tapia on the telephone; she told him that she “got busted” and asked him to come to the hotel and pick up her dogs. 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. See PSR ¶ 16, at 5-6. Tapia attempted to drive away, but his 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

         The Court provided a comprehensive history of this case's procedural background in its Second Amended Memorandum Opinion and Order, filed December 14, 2017 (Doc. 122) (“Sentencing MOO”). The USPO assessed 3 criminal history points for Tapia's convictions in Case No. D-2020-CR-2012-3528, which included convictions for promoting prostitution, accepting the earnings of a prostitute, transferring or receiving stolen vehicles, possession of a controlled substance, and aggravated fleeing from a law enforcement officer; Tapia was sentenced to 5 years imprisonment for that case. See PSR ¶ 47, at 13. In the Sentencing MOO, the Court determined that it lacked sufficient evidence to conclude that all the conduct in Case No. D-202-CR-2012-3528 was temporally distinct from the instant offense, but could conclude that the receiving or transferring a stolen motor vehicle violation did not happened on the same day as the instant offense. See Sentencing MOO at 46 (noting that the instant offense's discovery does not indicate that the car Tapia was driving was stolen). The Court also decided that it would not grant a downward adjustment to Tapia's sentence pursuant to U.S.S.G. § 5G1.3(b), because Tapia did not prove that his prostitution-related convictions from Case No. D-202-CR-2012-3528 were relevant conduct to the instant offense. See Sentencing MOO at 47-48. The Court held a sentencing hearing on December 15, 2017. See Draft Hearing Transcript, taken December 15, 2017 (“Tr.”).[1] Tapia made two objections to the Sentencing MOO. See Tr. at 3:1-4:6 (Serna); id. at 4:15-16 (Serna). First, he argued that the Court should assess 1 criminal history point -- not 3 criminal history points -- for Tapia's receiving or transferring a stolen motor vehicle conviction in Case No. D-202-CR-2012-3528, because that conviction's sentence was suspended. See Tr. at 3:1-5 (Serna); id. at 20:3-22 (Serna). Tapia entered into evidence several documents relating to that case: (i) the grand jury indictment, see Grand Jury Indictment at 1 (dated July 26, 2012)(Hearing Exhibit A)(“State Indictment”) (charging Tapia with human trafficking, two counts of promoting prostitution, accepting earnings of a prostitute, receiving or transferring stolen motor vehicles, and possession of a controlled substance); (ii) Jury Verdicts (dated May 28, 2014)(Hearing Exhibit C); (iii) and the Judgment, Sentence, and Order Partially Suspending Sentence (dated April 30, 2015)(Hearing Exhibit D)(“State Sentence”)(listing Tapia sentences for each conviction). Tapia argued that the State Sentence shows that the state court suspended Tapia's receiving or transferring stolen motor vehicles sentence, because the state court suspended all sentences besides the sentences for promoting prostitution and accepting the earnings of a prostitute. See Tr. 17:1-18:14 (Serna, Cruz). Tapia asserts that those convictions' sentences received habitual offender enhancements, and, under New Mexico law, courts cannot suspend sentences that receive habitual offender enhancements. See Tr. at 17:1-9 (Serna, Cruz). According to Tapia, the state court must have suspended the other sentences, including Tapia's receiving or transferring stolen motor vehicles sentence, because it sentenced Tapia to 5 years imprisonment -- the prostitution-related sentences' sum -- and issued a suspended sentence of four years and six months -- the remaining sentences' sum. See Tr. at 17:9-18:14 (Serna, Cruz). Tapia contends that suspended sentences call for 1 criminal history point. See Tr. at 20:4-7 (Serna).

         Second, Tapia argues that the Court should issue a downward departure pursuant to U.S.S.G. § 5G1.3 for time served on Tapia's prostitution-related convictions, because those offenses are relevant conduct to the instant offense. See Tr. at 23:24-24:5 (Serna). Tapia entered into evidence several documents relating to Tapia's April 11, 2012, arrest: (i) his Bail Bond (dated April 14, 2012)(Hearing Exhibit B); (ii) his Bail Bond Application (dated April 14, 2012) (Hearing Exhibit B); (iii) his Bail Bond Receipt (dated April 14, 2012)(Hearing Exhibit B), (iv) Charges/Warrants/Bond Information Summary (dated April 13, 2012)(Hearing Exhibit B); and (v) the Albuquerque Police Department's Supplementary Offense Report (dated April 17, 2012)(Hearing Exhibit E)(“APD Supp. Report”). Tapia argues that his promoting prostitution conviction is relevant conduct to the instant offense, because these documents show that Tapia's April 11, 2012, arrest for promoting prostitution led APD officers to discover the firearm at issue in Tapa's being a felon in possession of a firearm offense. See Tr. at 24:15-30:20 (Serna, Walsh). Tapia also argues that his accepting the earnings of a prostitute offense is also relevant conduct to the instant offense, because the woman who paid for Tapia's bond following his April 11, 2012 arrest raised that money by working as a prostitute. See Tr. at 27:18-28:5 (Serna). Tapia asserts that he is not getting good time credit for his prostitution-related convictions, and, therefore, the Court should grant a downward departure pursuant to § 5G1.3(d) app. n.4(E). See Tr. at 30:24-31:13 (Serna).

         The United States countered that Tapia's prostitution-related offenses were not relevant conduct to the instant offense, because (i) the State Indictment's allegation that Tapia committed those offenses within a several-months long time range indicates that the prosecutors intended to present evidence within that time range, not just from the April 11, 2012 incident; and (ii) prostitution and firearm possession are not similar offenses. See Tr. at 35:4-36:4 (Walsh).

         LAW REGARDING THE BURDEN OF PROOF REQUIRED FOR ENHANCEMENTS UNDER THE GUIDELINES

         In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court of the United States reaffirms the principle that it is permissible for sentencing judges “to exercise discretion -- taking into consideration various factors relating both to offense and offender -- in imposing judgment within the range prescribed by statute.” 530 U.S. at 481. The Supreme Court cautioned, however, that the Constitution of the United States of America limits this discretion and its Sixth Amendment requires that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. at 490. In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court elaborated on its holding in Apprendi v. New Jersey, stating that the “‘statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. at 303 (emphasis and citations omitted). Apprendi v. New Jersey does not, however, “apply to the present advisory-Guidelines regime, ” because the sentencing guidelines are no longer mandatory. United States v. Ray, 704 F.3d 1307, 1314 (10th Cir. 2013)(citing United States v. Booker, 543 U.S. 220, 259 (2005)). More recently, the Supreme Court held that Apprendi v. New Jersey's requirements apply to facts that increase a defendant's mandatory minimum sentence. See Alleyne v. United States, 570 U.S. 99 (2013).

         In United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005), the Tenth Circuit held that Blakely v. Washington and United States v. Booker do not change the district court's enhancement findings analysis. See United States v. Magallanez, 408 F.3d at 684-85. United States v. Magallanez involves plain-error review of a drug sentence in which a jury found the defendant guilty of conspiracy to possess with intent to distribute, and to distribute, methamphetamine. See 408 F.3d at 676. As part of its verdict, the jury, through a special interrogatory, attributed to the defendant 50-500 grams of methamphetamine; at sentencing, however, the judge -- based on testimony of the various amounts that government witnesses indicated they had sold to the defendant -- attributed 1200 grams of methamphetamine to the defendant and used that amount to increase his sentence under the Guidelines. See 408 F.3d at 682. The district court's findings increased the defendant's Guidelines sentencing range from 63 to 78 months to 121 to 151 months. See 408 F.3d at 682-83. On appeal, the Tenth Circuit stated that, both before and after Congress' passage of the Sentencing Reform Act, 18 U.S.C. § 3553, “sentencing courts maintained the power to consider the broad context of a defendant's conduct, even when a court's view of the conduct conflicted with the jury's verdict.” 408 F.3d at 684. Although United States v. Booker made the Guidelines ranges “effectively advisory, ” the Tenth Circuit reaffirms that “district courts are still required to consider Guideline ranges, which are determined through application of the preponderance standard, just as they were before.” United States v. Magallanez, 408 F.3d at 685 (citation omitted).

         The Tenth Circuit, while “recognizing ‘strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof, '” has “long held that sentencing facts in the ‘ordinary case' need only be proven by a preponderance.” United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008)(quoting United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993)).[2] “[T]he application of an enhancement . . . does not implicate the Supreme Court's holding in Apprendi v. New Jersey.” United States v. Reyes-Vencomo, 2012 WL 2574810, at *3 (D.N.M. 2012)(Browning, J.). The Tenth Circuit applies Apprendi v. New Jersey's requirement that a fact be submitted to a jury only where the fact would increase a defendant's sentence “above the statutory maximum permitted by the statute of conviction.” United States v. Price, 400 F.3d 844, 847 (10th Cir. 2005). Accord United States v. Ray, 704 F.3d at 1314. A defendant may assert an error under Apprendi v. New Jersey only where the fact at issue increased his sentence beyond the statutory maximum. See United States v. O'Flanagan, 339 F.3d 1229, 1232 (10th Cir. 2003)(holding that a defendant could not assert an error under Apprendi v. New Jersey, because “his sentence does not exceed the statutory maximum”); United States v. Hendrickson, 592 Fed.Appx. 699, 705 (10th Cir. 2014)(unpublished)(holding that, after Alleyne v. United States, “[i]t is well-established that sentencing factors need not be charged in an indictment and need only be proved to the sentencing judge by a preponderance of the evidence”).[3] The Court has noted:

[A]lthough the decision of the Supreme Court of the United States in Alleyne v. United States, . . . 133 S.Ct. 2151 . . . (2013), expands the rule from Apprendi v. New Jersey, 530 U.S. 466 . . . (2000)(holding that facts that increase the maximum sentence a defendant faces must be proven to a jury beyond a reasonable doubt), to cover facts that increase the mandatory minimum sentence, as well as the maximum sentence, it does not prohibit district judges from continuing to find advisory sentencing factors by a preponderance of the evidence. See [United States v. Sangiovanni, ] 2014 WL 4347131, at *22-26 [(D.N.M. 2014)(Browning, J.)].

United States v. Cervantes-Chavez, 2014 WL 6065657, at *14 (D.N.M. 2014)(Browning, J.).

         In United States v. Ulibarri, 115 F.Supp.3d 1308 (D.N.M. 2015)(Browning, J.), the Court considered the United States' assertion that the defendant deserved 8 additional offense levels for threatening to cause physical injury to a person in order to obstruct justice. See 115 F.Supp.3d 1336-37 (citing U.S.S.G. § 2J1.2(b)(1)(B)). The Court stated that, for the offense levels to apply,

the United states must prove two elements by a preponderance of the evidence. First, K. Ulibarri's offense must involve “threatening to cause physical injury to a person.” U.S.S.G. § 2J1.2(b)(1)(B). This element requires that K. Ulibarri “communicate[d an] intent to inflict [physical injury] on another[.]” Black's Law Dictionary 1618 . . . . Second, K. Ulibarri must have made that threat “in order to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(1)(B).

United States v. Ulibarri, 115 F.Supp.3d at 1336. The Court determined that, although the United States showed that the defendant “communicated an intent to inflict physical injury” on someone, the United States failed to prove, by a preponderance of the evidence, that the defendant “did so to obstruct the administration of justice.” 115 F.Supp.3d at 1336. The Court concluded that, because the United States failed to meet its burden on this second element, it would not impose the additional 8 offense levels under U.S.S.G. § 2J1.2(b)(1)(B). See United States v. Ulibarri, 115 F.Supp.3d at 1336.

         LAW REGARDING RELEVANT CONDUCT FOR SENTENCING

         In calculating an appropriate sentence, the Guidelines consider a defendant's “offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1, n.1(H). In United States v. Booker, the Supreme Court notes:

Congress' basic statutory goal -- a system that diminishes sentencing disparity --depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction. That determination is particularly important in the federal system where crimes defined as, for example, “obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any article or commodity in commerce, by . . . extortion, ” . . . can encompass a vast range of very different kinds of underlying conduct.

543 U.S. at 250-51 (emphasis in original)(quoting 18 U.S.C. § 1951(a)). The Supreme Court's reasoning in United States v. Booker suggests that the consideration of real conduct is necessary to effectuate Congress' purpose in enacting the Guidelines.

         Section 1B1.3(a) provides that the base offense level under the Guidelines “shall be ...


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