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United States v. Fichera

United States District Court, D. New Mexico

November 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL FICHERA, Defendant.

          John C. Anderson United States Attorney Howard R. Thomas Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Alejandro Benito Fernandez Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Objections to the Presentence Investigation Report and Sentencing Memorandum, filed October 3, 2018 (Doc. 32)(“Objections”). The Court held a sentencing hearing on October 25, 2018. The primary issues are: (i) whether Defendant Paul Fichera's charges for both armed bank robbery, under 18 U.S.C. §§ 2113(a) and (d), and brandishing a firearm during and in furtherance of a crime of violence, under 18 U.S.C. § 924(c), are warranted, because, as Fichera avers, the enhancements available for his armed bank robbery conviction would sufficiently address the conduct of brandishing a firearm and charges for both crimes will result in sentencing disparities; (ii) whether the 2-level enhancement under U.S.S.G. § 2B3.1(b)(4)(B) for physical restraint of another “to facilitate commission of the offense or to facilitate escape” applies where Fichera pointed a silver pistol “at bank customers and employees and yelled ‘Everybody get on the ground, '” Presentence Investigation Report ¶ 7, at 4, filed September 7, 2018 (Doc. 29)(“PSR”); (iii) whether the 2-level enhancement under U.S.S.G. § 3C1.2 for “Reckless Endangerment During Flight” applies where Fichera led police on a high-speed car chase that resulted in a conviction in Colorado state court; and (iv) whether the 2-point addition to Fichera's criminal history level under U.S.S.G. § 4A1.1(d) applies for committing the instant offense “while under any criminal justice sentence” where Fichera committed the armed bank robbery while under unsupervised probation. The Court concludes that Fichera's Objections have no sound basis in the applicable law or relevant facts, and overrules them.

         ANALYSIS

         Fichera provides no legal arguments in his written Objections in support of his Objections. He appears to concede that he can be convicted for both armed bank robbery and brandishing a firearm. He also appears to concede that all the enhancements to which he objects are appropriately applied to him. Therefore, concluding that Fichera's Objections are lodged more to urge the Court to depart from a United States Sentencing Guidelines (“Guidelines”) sentence rather than to argue that the enhancements are unlawful, the Court will overrule the Objections.

         1. FICHERA MAY LEGALLY BE CONVICTED OF THE DISTINCT CRIMES OF ARMED BANK ROBBERY AND BRANDISHING A FIREARM.

         Fichera avers that his charges for both armed bank robbery, under 18 U.S.C. §§ 2113(a) and (d), and brandishing a firearm, under 18 U.S.C. § 924(c), are inappropriate, because “the United States Sentencing Guidelines have several provisions to punish committing a robbery while armed.” Objections ¶ 1, at 1. Fichera argues that, because the United States chose to charge him under § 924(c) -- with its seven-year mandatory minimum sentence -- instead of merely applying the 5-level enhancement for the armed bank robbery under U.S.S.G. § 2B3.1 for brandishing a firearm, his “low-end guideline recommendation is nearly four years higher.” Objections ¶ 2, at 2. The decision to “seek indictment” on both charges, however, Fichera concedes, “is a matter of prosecutorial discretion.” Objections ¶ 1, at 1.

         The United States notes that Fichera has “pled guilty to both crimes with which he is charged” and that the armed bank robbery is distinct, as a matter of law, from the § 924(c) charge. United States' Response to Defendant's Objections to Presentence Investigation Report and Sentencing Memorandum [Doc. 32] at 6, filed October 10, 2018 (Doc. 33)(“Response”). The United States cites to two United States Court of Appeals for the Tenth Circuit cases allowing charges for both armed bank robbery and brandishing a weapon to stand. See Response at 6 (citing United States v. Lanzi, 933 F.2d 824 (10th Cir. 1991); United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000). In United States v. Lanzi, the defendant was convicted “of one count of armed robbery of a credit union and one count of using a firearm during the robbery, in violation of 18 U.S.C. §§ 2113(a) & (d) and 924(c)(1).” United States v. Lanzi, 933 F.2d at 824-25. The Tenth Circuit addressed the Double Jeopardy Clause[1] issue, concluding that there is no Double Jeopardy violation where the defendant is punished “twice under separate statutes for the same conduct, ” United States v. Lanzi, 933 F.2d at 825, because “[t]he plain language of [§ 924(c)(1)] clearly evinces congressional intent that any defendant using a dangerous weapon in connection with a violent crime must be sentenced to five years imprisonment, such sentence to run consecutive to that imposed for the violent crime, ” United States v. Lanzi, 933 F.2d at 826. The Tenth Circuit also noted the 1984 amendment to § 924(c)(1), in which Congress “clarified that it authorized an additional sentence over and above that imposed for the underlying felony, even if the underlying felony contained an enhancement provision, ” and that Congress “refer[red] expressly to the bank robbery statute, 18 U.S.C. § 2113, as one of the federal crimes of violence to which § 924 applies.” United States v. Lanzi, 933 F.2d at 826 (citing S. Rep. No. 22d, 98th Cong., 2d Sess. 313, reprinted in 1984 U.S. Code Cong. & Admin News 3182, 3490-91). Therefore, Fichera is appropriately charged for both crimes and the Court overrules his Objection to the “prosecutorial discretion” in charging him for both armed bank robbery and brandishing a weapon.

         II. THE COURT OVERRULES FICHERA'S OBJECTIONS TO THE ENHANCEMENTS UNDER U.S.S.G. §§ 2B3.1(B)(4)(B), 3C1.2, AND 4A1.1(D), BECAUSE THEY PROPERLY APPLY TO FICHERA'S CONDUCT IN COMMITTING THE ARMED BANK ROBBERY.

         Fichera argues that it is unfair to apply the enhancements under U.S.S.G. §§ 2B3.1(b)(4)(B) and 3C1.2, because, in his mind, the enhancements apply to conduct he has adequately been punished for by his brandishing a weapon and vehicular eluding convictions. The Court disagrees with Fichera's equitable opposition to the enhancements under U.S.S.G. §§ 2B3.1(b)(4)(B) and 3C1.2, because these enhancements apply to conduct not contemplated by the brandishing a weapon and vehicular eluding convictions, and overrules these Objections.

         Fichera also argues that the 2-point addition to his criminal history under U.S.S.G. § 4A1.1(D) is unfair, because he is receiving more criminal history points than he would have had he been sentenced to jail time for the conviction the enhancement applies to -- case number 2016M752.

         The Court concludes the 2-point addition to Fichera's criminal history score under U.S.S.G. § 4A1.1(D) is appropriate, because the Court has an interest in discouraging defendants from committing additional crimes while serving probation, and overrules this Objection as well.

         A. FICHERA PHYSICALLY RESTRAINED BANK CUSTOMERS AND EMPLOYEES, BECAUSE HE BRANDISHED HIS GUN AT THEM AND PREVENTED THEIR MOVEMENT.

         A 2-level enhancement under U.S.S.G. § 2B3.1(b)(4)(B) applies where “any person was physically restrained to facilitate commission of the offense or to facilitate escape.” “Physically restrained” is defined in the Commentary to § 1B1.1 as “the forcible restraint of the victim such as by being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt. n.1(K). See U.S.S.G. § 2B3.1 cmt. n.1 (stating that “physically restrained” is “defined in the Commentary to § 1B1.1”). This enhancement is distinct from the underlying offense of the armed bank robbery -- and from the offense of brandishing a gun -- because it does not relate to the dangerousness of using a gun to commit the robbery but rather Fichera's pointing his gun at people and ordering them to get down to the ground. See PSR ΒΆ 7, at 4. This ordering people to the floor amounted to the physical ...


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