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United States v. Real

United States District Court, D. New Mexico

December 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT REAL, Defendant.

          MEMORANDUM OPINION AND ORDER SUSTAINING DEFENDANT'S OBJECTION TO THE SENTENCING GUIDELINE ENHANCEMENT UNDER USSG § 2K2.1(B)(5) IN THE PRESENTENCE REPORT

         THIS MATTER comes before the Court following a hearing on Defendant Robert Rael 's Sentencing Memorandum, Objections to Presentence Report and Sentencing Request (Doc. 87, filed 9/14/18) and United States' Sentencing Memorandum (Doc. 88, filed 9/20/18). At the Court's direction, the parties filed supplemental sentencing memoranda addressing in part Defendant's objection to receiving a four-level enhancement under United States Sentencing Guideline ("USSG") § 2K2.1(b)(5) for trafficking firearms. See Docs. 94, 97. The Court has reviewed the reports from the United States Probation Office (Docs. 84, 89) and has considered the parties' pleadings, the arguments presented by counsel at the October 1, 2018 hearing, and the applicable law. For the reasons stated below, the Court SUSTAINS Defendant's objection to receiving the four-level enhancement for firearms trafficking under USSG § 2K2.1(b)(5). See Doc. 87 at 7; PSR, ¶ 35. Thus, in the matter of Defendant's sentencing, the correctly calculated Sentencing Guidelines[1] range is 18-24 months based on a total offense level of 15 and criminal history category of I. Having already denied the Government's request for an upward variance in this case, the Court reserves judgment on Defendant's request for a downward variance until the Court pronounces the sentence in this matter.

         STATEMENT OF THE CASE

         Defendant Robert Real ("Defendant") ran a federally licensed firearms business in Espanola, New Mexico. Defendant was indicted for firearms-related violations of federal law, including two counts of selling firearms to felons (Counts 2 and 6), one count of selling a firearm other than a rifle or shotgun to a person under twenty-one years of age (Count 3), two counts of falsification of required firearm transfer records (Counts 4 and 8), and one count of making materially false statements to federal law enforcement agents (Count 7). Doc. 2. Defendant was also charged with conspiring with his wife and daughter to carry out these acts (Count 1). Defendant pleaded guilty to these counts. Doc. 71, Plea Agreement. In the Plea Agreement, Defendant made the following relevant admissions:

Between on or about March 12, 2016 and February 24, 2017, 1 took several actions at my office in Espanola and at gun shows around New Mexico designed to ignore or avoid legal or administrative restrictions placed on federally licensed firearm dealers so that I could make more money. I took those actions voluntarily, knowing they created a risk that firearms would be transferred to felons.
On or about March 12, 2016, at the High Desert Gun Show in Silver City, New Mexico, I sold a Phoenix Arms Model HP22A .22 caliber semiautomatic pistol to a person whose initials are M.H.D., even though when I performed the ATF background check, the ATF did not authorize that transfer. M.H.D. was a felon. When I made that sale, along with co-defendant LINDA REAL, I did not tell LINDA REAL the results of the background check that would have allowed her to know that we should not have proceeded with the sale. On or about June 4, 2016, in Albuquerque, I transferred a Spikes Spartan lower receiver, which is a firearm under federal law but is neither a shotgun nor a completed rifle, to S.R.N., a person under 21 years of age at the time.
On or about January 28, 2017, in Carlsbad at a gun show, I sold a Cobra Model FS380 .380 caliber pistol to R.M.S., ignoring the ATF instruction not to complete the transfer right away. It turns out R.M.S. was a felon. In completing this transaction, I did not inform co-defendant LINDA REAL that the ATF had instructed us not to proceed with the sale-so that while LINDA REAL completed the sale with me, only I knew that we should not have been proceeding with the sale.
On or about February 24, 2017, in Santa Fe, I met with agents from the ATF and made materially false statements to them about my firearms transactions- specifically, I said that R.M.S. had driven to Espanola to complete her firearms transaction, as if following the proper protocols for a "Delay" result from the ATF, when actually I sold the .380 pistol to R.M.S. at the Carlsbad gun show in spite of the "Delay" instruction from the ATF informing me that I should not have completed the sale right away. Also, before that meeting with ATF agents, I altered or caused LINDA REAL to alter the ATF Form 4473 for the R.M.S. sale of the .380 caliber pistol to state falsely that the sale had taken place on February 2, 2017 at my store in Espanola.

Doc. 71, ¶ 8.

         After the Presentence Report was disclosed, Defendant objected to the application of a four-level enhancement under USSG § 2K2.1(b)(5) for firearms trafficking, on the grounds that the Government failed to show sufficient proof of "specific knowledge" as required by the Court of Appeals for the Tenth Circuit in United States v. Francis. See PSR, ¶ 35; Doc. 87 at 7-8 (citing United States v. Francis, 891 F.3d 888 (2018)). Defendant has also requested a downward variance to a sentence of time-served and home confinement for a period of one year, followed by a term of supervised release. Doc. 87 at 11. The Government maintains that the firearms trafficking enhancement is properly applied (Doc. 88 at 1-2), as does the United States Probation Office (Doc. 89, Addendum to Presentence Report). The Government also requests an upward variance to a sentence of sixty months' imprisonment. Doc. 88 at 4. At the October 1, 2018 hearing, the Court heard argument on the firearms enhancement, variance requests, and the appropriate fine in this matter. The Court ruled that an upward variance is not warranted in this case but continued the sentencing until the Court could issue a written ruling on the firearms trafficking enhancement. See Doc. 92, Clerk's Minutes for October 1, 2018 hearing.

         DISCUSSION

         I.

         Sentencing Guideline language and relevant law

         The language of USSG § 2K2.1(b)(5) and the relevant application ...


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