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United States v. Warwick

United States District Court, D. New Mexico

June 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM DOUGLAS WARWICK, Defendant.

          ORDER SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S SENTENCING MEMORANDUM AND FORMAL OBJECTIONS TO PRESENTENCE REPORT

         THIS MATTER comes before the Court[1] following a hearing on Defendant's Sentencing Memorandum and Formal Objections to Presentence Report for Defendant William Douglas Warwick (Doc. 130, filed 2/14/18). Having reviewed the pleadings, heard the arguments of counsel, considered the Pre-Sentence Report and Addendums (Docs. 126, 133, 135), and the applicable law, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant's objections to the Pre-Sentence Report (Doc. 126) (hereinafter “PSR”).

         BACKGROUND

         Federal agents searched the residence of William Douglas Warwick (hereinafter “Defendant”) once on August 3, 2016, and once on November 7, 2016, both times recovering firearms and amounts of methamphetamine. On August 3, 2016, law enforcement agents arrived at Defendant's residence, a trailer, in search of Shauna Gutierrez, who was at the time a fugitive. Doc. 91, ¶¶ 3, 6.[2] During the search on August 3, Defendant was detained outside of his home. Doc. 91, ¶¶ 18-19. During that search, agents determined that John Miramontes, who was outside the residence, also lived at the residence in one of the bedrooms, and so agents obtained Mr. Miramontes' consent and signature on the consent-to-search form. Doc. 91, ¶¶ 35, 51. Agents discovered Ms. Gutierrez in a bedroom closet, along with two rifles. Doc. 91, ¶¶ 25-26. Ms. Gutierrez had been living with Defendant since mid-June 2016, after he picked her up while she was hitchhiking. Doc. 91, ¶ 5. Ms. Gutierrez made statements during her interview indicating that she smoked methamphetamine with Defendant daily, and that they had smoked methamphetamine together on that day. PSR, ¶ 13. She also indicated that at that time, she was living with him in his bedroom. PSR, ¶ 13. The firearm seized on August 3 at Defendant's residence was a Marlin Firearms .22LR caliber rifle, which was recovered in the closet of the bedroom to the left of the front entrance. Doc. 91, ¶ 24; PSR ¶ 15.[3] The 20.3 grams of methamphetamine recovered on August 3 were found by agents inside a black leather vest on the floor next to the front door. Doc. 91, ¶ 60; PSR, ¶ 19. Agents seized the firearms recovered during the search, but did not arrest Defendant at that time. Doc. 91, ¶ 73.

         Law enforcement agents returned to Defendant's residence on November 7, 2016, to execute an arrest warrant based Defendant's status as a felon and his possession of the firearms that were seized on August 3. Doc. 91, ¶¶ 73-75. Agents found Defendant outside his residence, working on a motorcycle with a man named Mickey Le. Doc. 91, ¶¶ 75, 77. The agents conducted a protective sweep of the trailer because of perceived danger resulting from the presence of firearms and methamphetamine, and a number of factual circumstances. See Doc. 91. During the sweep, agents discovered two firearms, a Ruger Redhawk .44 magnum revolver and an F.I.E. E15 .22 caliber revolver, in the drawer of the nightstand in Defendant's bedroom. PSR, ¶¶ 17-18; Doc. 91, ¶¶ 91, 94, 96. Also in the nightstand drawer were a jar of marijuana and plastic baggies containing an unknown amount of methamphetamine. PSR, ¶ 17. Agents testified they observed plastic baggies and ammunition. Doc. 91, ¶¶ 97-98. Agents recovered 47.1 grams of methamphetamine in the November 7 search, and there is no dispute that 45.7 grams were on Defendant's person.[4] PSR, ¶ 19; Conditional Plea Agreement, Doc. 123, ¶ 11. Judge Armijo conducted a suppression hearing on May 25, 2017, June 1, 2017, and June 16, 2017, at which time she heard argument and reviewed evidence and testimony from agents and Defendant about the two searches. Judge Armijo granted Defendant's motion to suppress the firearms recovered in the protective sweep on November 7, 2016, on the grounds that the search exceeded constitutional limits imposed by the Fourth Amendment. Doc. 91, filed 8/30/17.

         On November 13, 2017, Defendant entered a conditional guilty plea with the United States to Count 1 and to a lesser-included charge of Count 3 of the Superseding Indictment. Superseding Indictment, Doc. 36, filed 3/28/17; Doc. 123, filed 11/13/17. Defendant pleaded guilty to Prohibited Person in Possession of Firearms, in violation of 18 U.S.C. § 922(g)(1) and (g)(3), on or about August 3, 2016 (Count 1), and Possession of Methamphetamine, in violation of 21 U.S.C. § 844, on or about November 7, 2016 (lesser-included charge of Count 3). Doc. 123, ¶ 3. Count 1 was possession of the Marlin Firearms .22LR caliber rifle that was recovered during the search of his residence on August 3, 2016. Doc. 123, ¶¶ 4-5, 11. Defendant did not plead guilty to possession of methamphetamine from that date. The lesser-included charge of Count 3 was to possession of 45.7 grams of methamphetamine that were recovered on his person during the search incident to arrest at his residence on November 7, 2016. Doc. 123, ¶¶ 6, 11. Pursuant to the ruling on August 30, 2017 (Doc. 91), the firearms that agents recovered on November 7, 2016 were suppressed, and Defendant did not plead guilty to possession of those.

         After Defendant entered the guilty plea, the United States Probation Officer prepared the Pre-Sentence Investigation Report (“PSR”). Doc. 126, filed 1/4/18. Paragraphs 34 and 35 set forth that Defendant should receive a role reduction of 3 because Defendant accepted responsibility in this matter. With a total adjusted offense level of 23 and a criminal history category of III, the computed guidelines range is 57-71 months. PSR, ¶ 79. Defendant filed his Sentencing Memorandum and Formal Objections to the Presentence Report on February 14, 2018. Doc. 130 (“Memorandum”).

         In his Memorandum, Defendant argues that he should not receive three sentencing enhancements at issue under the United States Sentencing Guidelines (hereinafter “USSG” or “Sentencing Guidelines”). First, Defendant objects to the Government's assertion that the Probation Officer should apply a two-level enhancement under USSG § 3C1.1 for obstruction of justice based on Defendant's testimony at the suppression hearing. Doc. 130 at 4; Doc. 134 at 3. Second, Defendant objects to the four-level enhancement applied under USSG § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony offense. PSR, ¶ 28. Third, Defendant objects to the two-level enhancement under USSG § 2K2.1(b)(1) for possession of three or more firearms as relevant conduct. PSR, ¶ 27. The PSR does not include the enhancement for obstruction, but it does reflect the other two enhancements at issue. Defendant posits that without the enhancements, his sentencing range should be 30-37 months' imprisonment. Doc. 130 at 4. Defendant argues that 30 months' imprisonment is appropriate under 18 U.S.C. § 3553(a) to secure a sentence that would be sufficient, but not greater than necessary. Doc. 130 at 7. The Government asks for a sentence of 60 months, considering Defendant's history and characteristics, plus his testimony at the suppression hearing; if the Court applies the obstruction enhancement, the United States requests a 70-month sentence. Doc. 134 at 4.

         Upon receiving this case, the Court heard argument from the parties on May 30, 2018, regarding defense's objections to the PSR in the Sentencing Memorandum and the Government's response. At the hearing, the Government did not present any evidence, exhibits, or testimony to the Court for consideration in support of the Government's position that these three enhancements should apply. The Court vacated Defendant's sentencing hearing that was set for May 30, 2018, in order to allow the Court additional time to consider the oral and written objections to the PSR submitted by Defendant.

         DISCUSSION

         I. Enhancement for obstruction of justice

          Contrary to the position of the Probation Officer and over Defendant's objection, the United States argues that Defendant should receive a two-point enhancement for obstruction of justice, pursuant to USSG § 3C1.1.[5] The Government asserts that as Judge Armijo found Defendant not credible during his testimony at the suppression hearing, “he testified in a manner consistent with the obstruction of the administration of justice.” Doc. 134 at 3. The United States claims that Defendant's “testimony was designed to sway Judge Armijo to suppress additional evidence and could have resulted in additional evidence being suppress[ed] had she believed him.” Id. The Government still asks the Court to give the reduction for acceptance of responsibility under USSG § 3E1.1, as was included in the plea agreement. Doc. 123, ¶ 13. According to the Government, the sentencing range with the additional two-level enhancement would be 70-87 months. Doc. 134 at 3.

         Defendant argues that the Court should not give the enhancement for obstruction under either the binding authority of United States v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004), or under the persuasive authority of United States v. Hunter, 835 F.3d 1320 (11th Cir. 2016). First, the Court looks to Salazar-Samaniega for the two-part test the Tenth Circuit articulated regarding whether the district court may give the defendant a reduction for accepting responsibility, while also giving the defendant an enhancement for obstruction of justice. 361 F.3d at 1278. The Circuit referenced comment n.4 to USSG § 3E1.1, which provides:

Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.

USSG § 3E1.1 n.4. In Salazar-Samaniega, the Tenth Circuit ruled that

in determining whether a case is “extraordinary” so as to merit both a § 3E1.1 reduction and a § 3C1.1 enhancement, the sentencing court must consider the totality of the circumstances, including, but not limited to 1) whether the obstruction of justice was an isolated incident or an on-going, systematic effort to obstruct the prosecution, and 2) whether defendant voluntarily terminated his obstructive conduct and truthfully admitted the conduct comprising the offense of conviction.

361 F.3d at 1280. Thus, the Tenth Circuit put forward two factors for the district court to consider, but also noted that courts may have non-listed considerations about whether the circumstances are sufficiently “extraordinary” to give the enhancement and the reduction. Id.

         Defendant also points to the more recent Hunter case out of the Eleventh Circuit, which is factually similar, but is only persuasive authority to this Court. 835 F.3d 1320 (11th Cir. 2016). In Hunter, the Government breached the plea agreement because it failed to recommend the reduction for acceptance of responsibility that was included in the plea agreement, and the Government instead argued for the enhancement for obstruction of justice because the court found the defendant's testimony not credible at the suppression hearing. Id. at 1323. The circuit stated that “[w]hether the government violated the agreement is judged according to the defendant's reasonable understanding at the time he entered his plea.” Id. at 1324; accord United States v. Rockwell Int'l Corp., 124 F.3d 1194 (10th Cir. 1997). The Eleventh Circuit explained that “if, at the time it offered the plea agreement, the government was aware of facts that would allow it to . . . avoid its promise therein, then it would be extending an illusory promise.” 835 F.3d at 1326. The circuit noted that the Government was in fact already aware of the court's findings regarding the defendant's testimony from the suppression hearing at the time it offered the plea agreement. Id. Thus, the Hunter court determined that the Government breached the agreement because the defendant would not have reasonably understood such an “empty promise.” Id.

         Considering Salazar-Samaniega and Hunter, the Court agrees with Defendant that imposition of the enhancement for obstruction of justice would be improper in this case. Under the Salazar-Samaniega test, and considering the totality of the circumstances, the Court does not find that this is an “extraordinary” case that would allow for the imposition of the enhancement alongside the promised reduction. Although, at the hearing, the United States referenced a number of instances in which Judge Armijo ruled Defendant's testimony was not credible, [6] the Court agrees with the Probation Officer that these instances do not rise to an “ongoing, systemic effort to obstruct justice.” USSG § 3C1.1; see Second Addendum to the Pre-Sentence Report, Doc. 135. Furthermore, under the rationale employed in Hunter, imposing the enhancement for obstruction would render the plea agreement illusory based on a reasonable understanding of the promises it contained regarding a reduction for acceptance of responsibility. Notably, the Government was aware of Defendant's testimony and Judge Armijo's findings before Defendant entered the plea agreement, as was the case in Hunter. Thus, the Court sustains Defendant's objection to the United States' request that the Court impose the two-level enhancement for obstruction of justice under USSG § 3C1.1.

         II. Enhancement for possession of a firearm in connection with another felony

         USSG § 2K2.1(b)(6)(B) sets forth that this enhancement should be applied if “the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” The Government asserts that the Probation Officer correctly applied the four-level enhancement under USSG § 2K2.1(b)(6)(B). PSR, ¶ 28. Defendant objects on the grounds that the Government has not shown by a preponderance of the evidence that Defendant's charged possession of a firearm was “in connection with another felony offense, ” that being the possession of methamphetamine. Doc. 138 at 4. For the reasons below, the Court finds that the Government has not carried its burden to show that this enhancement applies to Defendant's possession of these firearms because 1) the Government has not provided a sufficient record to prove by a preponderance of the evidence that Defendant possessed methamphetamine on August 3, and 2) the Government has not shown that the possession of the firearms facilitated another felony on November 7.

         A.Sentencing Guidelines' language

         First, the Sentencing Guidelines' language provides application of this enhancement to use or possession of “any firearm” and not only the charged firearm. USSG § 2K2.1(b)(6)(B); see United States v. Jardine, 364 F.3d 1200, 1208 (10th Cir. 2004) (adopting the Eight Circuit's interpretation of “any firearm” as “including that firearm or ammunition used by a defendant in connection with another offense, even if different from the particular firearm or ammunition upon which defendant's felon-in-possession conviction is based”), vacated on other grounds, 543 U.S. 1102 (2005). This aligns with the intended effects of considering relevant conduct, as opposed to only charged conduct, for the purposes of sentencing. USSG § 2K2.1 cmt. n.14(E) (“In determining whether subsections (b)(6)(B) and (c)(1) apply, the court must consider the relationship between the instant offense and the other offense, consistent with relevant conduct principles.”). The commentary to § 2K2.1 ...


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