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United States v. Pena

United States District Court, D. New Mexico

October 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TOMMY PEÑA, Defendant.

          MEMORANDUM OPINION AND ORDER OVERRULING THE UNITED STATES' OBJECTIONS TO THE SENTENCING GUIDELINES CALCULATION IN THE ADDENDUM TO PRESENTENCE REPORT

         THIS MATTER comes before the Court following a hearing on the United States' Objections to the PSR and Sentencing Memorandum (Doc. 200, filed 6/8/18), Defendant's Sentencing Memorandum (Doc. 205, filed 7/26/18), and the United States' Objections to Addendum to Presentence Report (Doc. 214, filed 9/8/18). The Court has reviewed the parties' pleadings, including Defendant's Response to the Addendum to the Presentence Report and United States' Objections (Doc. 216, filed 9/26/18), as well as the reports from the United States Probation Office (Docs. 182, 190, 212), and heard the arguments of counsel at the September 10, 2018 hearing and considered the applicable law. For the reasons stated below, the Court overrules the Government's objections to 1) the single grouping of the counts of conviction and 2) the non-application of the enhancement in U.S.S.G. § 2K2.1(b)(6)(B). The Court has determined that in the matter of resentencing Defendant Tommy Pena under the 2016 United States Sentencing Guidelines, the offense level is 22 and the criminal history category is IV, and therefore the correctly calculated advisory Sentencing Guidelines range is 63-78 months. Including the mandatory 60-month consecutive sentence for the conviction in Count 4 under 18 U.S.C. § 924(c), the total adjusted advisory Sentencing Guidelines range is 123-138 months' imprisonment. The Court reserves judgment on the United States' request for an upward variance until the Court pronounces the sentence in this matter.

         STATEMENT OF THE CASE

         Based on the series of events that transpired between April 6, 2010, and April 19, 2010, Defendant was found guilty by this Court of four counts of being a felon in possession of a firearm and/or ammunition in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) (Counts 6, 8, 14, 15), one count of conspiracy to commit carjacking in violation of 18 U.S.C. § 371 (Count 1), one count of carjacking and aiding and abetting in violation of 18 U.S.C. § 2119 and § 2 (Count 2), one count of possession of methamphetamine in violation of 21 U.S.C. § 844(a) (Count 16), and one count of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). Doc. 96, Judgment, filed 12/7/11; Doc. 71, Findings of Fact and Conclusions of Law, filed 5/13/11. At the time, Defendant was exposed to an enhanced sentence as an Armed Career Criminal. PSR, ¶¶ 63-64; Doc. 182. The Court imposed a total sentence of 480 months' imprisonment with five years' supervised release, which was within the United States Sentencing Guidelines (“Sentencing Guidelines”) range under the 2010 version of the Sentencing Guidelines. Doc. 96; PSR, ¶ 104.

         After the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Defendant was no longer an Armed Career Criminal, and he successfully filed a petition for resentencing under 28 U.S.C. § 2255. See Docs. 180, 181. The Court determined that Defendant would be resentenced under the 2016 United States Sentencing Guidelines, and the parties submitted extensive briefing on the advisory Sentencing Guidelines range and on the United States' request for an upward variance. There was a hearing before this Court on September 10, 2018, at which time counsel offered oral arguments and the United States presented the testimony of Reshay Childress of the Correctional Programs Division of the Bureau of Prisons in support of its request for an upward variance. The Court informed the parties at the hearing that it would take this matter under advisement to ensure the correct calculation of the advisory Sentencing Guidelines range. The Court has now determined the proper advisory Sentencing Guidelines range to be 63-78 months based on an offense level of 22 and criminal history category IV, for a total adjusted range of 123-138 months' imprisonment with the § 924(c) 60-month consecutive sentence.

         BACKGROUND

         I. Factual Summary of 2010 Events

          After Defendant executed a knowing and voluntary waiver of jury trial (Docs. 53, 55), this Court conducted a bench trial on December 14 and 15, 2010. Doc. 57. Following the bench trial, the Court found Defendant guilty of Count 16 (possession of methamphetamine) and Counts 6, 8, 14, 15 (violations of § 922(g)). The Court allowed both parties to submit written arguments on Counts 1, 2, 4, 9, 10, and 12. On May 13, 2011, the Court filed the Findings of Fact and Conclusions of Law (Doc. 71) regarding four incidents underlying the charged conduct: the Lacey carjacking on April 6, 2010; the drive-by shooting on April 10, 2010; the Luna car theft on April 18, 2010; and Defendant's arrest on April 19, 2010. Doc. 71. The offense conduct is summarized below to establish how the events were charged and which counts resulted in conviction for the purposes of calculating the advisory Sentencing Guidelines range.

         A. April 6, 2010: Lacey Carjacking

          Defendant and his co-defendant Jeremy Conde (“Conde”) were hired by Isabel Saucedo (“Chavela”) to retrieve cash from the household of Arthur Lacey (“Lacey”) in retribution for Chavela's belief that Lacey had stolen cash from her that she was keeping in the Lacey household in Roswell, New Mexico. Doc. 71, ¶¶1-3. In the alternative to retrieving cash from the Lacey household, Pena and Conde agreed with Chavela that they could take a car that Chavela believed Lacey had purchased with the cash. ¶¶ 1-3. Conde, Pena, and Chavela went to the Lacey home on April 6, 2010. ¶ 6. Pena carried a 9 mm handgun that was loaded; Conde carried a firearm with bullets in the clip, but not in the chamber. ¶ 7. Chavela pointed to the 2000 Cadillac Eldorado in the front yard and said, “That's the car, ” meaning that was the car she wanted Pena and Conde to take. ¶ 9. When Lacey answered the door, Pena pointed the gun at Lacey's face and made gestures as though he intended to shoot Lacey. ¶¶ 11-12. As Pena and Conde entered the house, Lacey fled to a neighbor's house. ¶ 14. Conde and Pena ransacked the Lacey home in the presence of Lacey's wife, Collette Lacey (“Collette”), who was nine months pregnant, and her young children. ¶ 15. Conde pointed his gun at Collette and at one of the children, and Pena's gun remained in his pocket. ¶¶ 16, 18. As Pena was leaving the house with various stolen items, Pena noticed some keys near the door. ¶ 21. He backed up, grabbed the keys to the Cadillac, and left the house. ¶ 21. Pena drove away in the Cadillac. ¶ 23.

         Regarding the events that took place at the Lacey house on April 6, 2010, Defendant was charged with one count of conspiracy to commit carjacking (18 U.S.C. § 371) (Count 1), one count of carjacking and aiding and abetting (18 U.S.C. § 2119 and § 2) (Count 2), one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)(2)) (Count 6), and one count of using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (Count 4). The Court found Defendant guilty of the four counts related to the Lacey incident.

         B. April 10, 2010: Drive-By Shooting

          In the evening of April 10, 2010, Conde and Pena drove down East Ballard Street in Roswell and Pena fired several shots at the people on the street with a 9 mm handgun. Doc. 71, ¶¶ 26-27. Defendant was charged with one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)) (Count 8), of which the Court found him guilty.

         C. April 18, 2010: Luna Car Theft

          In the afternoon of April 18, 2010, Conde and Pena were leaving the house where Pena was staying at the time when they noticed Fred Luna (“Luna”) drive by them. Doc. 71, ¶¶ 30-31. Conde and Pena thought Luna was “mad-dogging” them by cursing at them and giving them a “hard look, ” so Conde and Pena decided to borrow Pena's sister's vehicle to follow Luna. ¶¶ 31- 32. Conde was armed with a loaded .22-caliber handgun and Pena was armed with a black semiautomatic handgun. ¶ 33. After Luna noticed he was being followed, he pulled into a church entrance and jumped out of his truck, leaving the door open and the ignition running. ¶ 35. The doors of the church were locked and Luna could not enter. ¶ 36. At that point, Conde and Pena pulled into the church parking lot and both pointed guns at Luna. ¶¶ 37-38. Luna started running away to exit the church parking lot. ¶ 40. Pena noticed that Luna's truck was still running, and mentioned this fact to Conde; at the time of this comment, Luna was almost out of the parking lot and into the street. ¶ 41. Conde got into the truck and drove away. ¶ 42. As Conde was driving away, Luna starting running back towards the truck, but after Pena urged Luna to “do it” and asked what he was going to do, Luna decided the truck was not worth being shot. ¶ 45.

         Regarding the events that took place April 18, 2010, Defendant was charged with one count of carjacking and aiding and abetting (18 U.S.C. § 2119 and § 2) (Count 10), one count of conspiracy to commit carjacking (18 U.S.C. § 371) (Count 9), one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)) (Count 14), and one count of using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (Count 12). Of these charges related to the Luna events, the Court found Defendant guilty of only the offense conduct in Count 14. The Court found the evidence was not sufficient to support a conviction on the related three counts because “at the time intent to steal the truck was formed, and at the time the truck was actually stolen, Luna was not ‘sufficiently near to the vehicle for it to be within reach, inspection, or control and, absent threat or intimidation, to be able to maintain control of it.'” ¶ 28. The Court could therefore not find Pena guilty of aiding and abetting the underlying offense conduct in Count 10, nor was the evidence sufficient for the conspiracy charge in Count ...


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