United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OVERRULING
DEFENDANT'S OBJECTION TO SENTENCING GUIDELINES
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court following a hearing on
Defendant's Objections to Pre-Sentence Report and
Sentencing Memorandum (Doc. 22, filed
1/24/19). The Defendant is charged with illegal reentry of a
removed alien, in violation of 8 U.S.C. § 1326(a)(1) and
(2), and 8 U.S.C. § 1326(b)(2). The Court has reviewed
the reports from the United States Probation Office (Docs.
17, 27) and has considered the parties' pleadings (Docs.
22, 25, 34), the arguments presented by counsel at the May 6,
2019 hearing, and the applicable law. For the reasons stated
below and at the May 6, 2019 sentencing, the Court
OVERRULED Defendant's objection to the
Pre-Sentence Report (“PSR”) including a 2004
revocation of supervised release in Defendant's United
States Sentencing Guidelines calculation. See PSR,
¶ 28; Doc. 22.
Court accepted the Fed. R. Crim. P. 11(c)(1)(C) plea
agreement and, pursuant to U.S.S.G. § 5K3.1, concluded
that the correctly calculated total adjusted United States
Sentencing Guidelines range is 24-30 months based on a total
offense level of 15 and criminal history category of III. The
Court imposed a within-Guidelines sentence of 24 months'
commitment to the custody of the Bureau of Prisons.
OF THE CASE
argues that he should not receive three points toward his
criminal history score or an eight-point offense level
enhancement because the petition that supported the
revocation of his supervised release related to his 1999
marijuana trafficking conviction violated the Warrant Clause
of the Fourth Amendment. The issue before the Court for
sentencing was that, if the Court sustained Defendant's
objection, then the points related to the 1999 marijuana
trafficking conviction would have fallen outside of the
15-year window of convictions included in criminal history
category calculation. See U.S.S.G. § 4A1.1(a)
cmt. n.1. Defendant also would not have received the
eight-point enhancement under § 2L1.2(b)(2)(B).
See U.S.S.G. § 2L1.2 cmt. n.3. In that case,
defense argued, the appropriate Sentencing Guidelines range
would have been 2-8 months' imprisonment based on an
offense level of 7 and criminal history category II. Doc. 34.
parties acknowledge that there is a split among some of the
United States Circuit Courts of Appeals, in which the First
and Fifth Circuits disagree with the Ninth Circuit's
ruling that the Fourth Amendment imposes an oath requirement
on the petition underlying the revocation of a
defendant's term of supervised release. At the hearing,
the Court overruled Defendant's objection on the grounds
that, absent controlling United States Supreme Court or Tenth
Circuit Court of Appeals precedent, the rationale articulated
by the First and Fifth Circuit Courts of Appeals is more
persuasive than that of the Ninth Circuit. The Court found
that the Sentencing Guidelines calculation in the PSR was
correct, which reflects that an offense level 15 and a
criminal history category III yields an advisory Sentencing
Guidelines range of 24-30 months' imprisonment. PSR,
Underlying Facts and Procedural History
living in the United States, Defendant was deported on or
about July 20, 1999 to Mexico. PSR, ¶ 28. Eight days
later, on or about July 28, 1999, Defendant was apprehended
when he attempted to reenter the country through the United
States Port of Entry at San Ysidro, California, in a vehicle
transporting marijuana. PSR, ¶ 28. Defendant pleaded
guilty in the United States District Court in the Southern
District of California to knowingly and intentionally
importing approximately 31.4 kilograms of marijuana from
outside the United States. PSR, ¶ 28. Defendant was
sentenced to 24 months of custody and three years of
supervised release. PSR, ¶ 28. Defendant's term of
supervised release commenced on July 20, 2001, when Defendant
was deported from the United States, and was set to expire on
July 19, 2004. PSR, ¶¶ 28, 30.
March 12, 2003, Defendant was arrested for driving under the
influence in Los Angeles, California, and he was sentenced
for the DUI on April 3, 2003, to 45 days of custody. PSR,
¶ 29. Prior to the expiration of his term of supervised
release for the 1999 marijuana trafficking conviction, a
Petition for Warrant or Summons of Offender Under Supervision
was filed on May 6, 2003 in the Southern District of
California because the DUI and illegal reentry violated the
terms of Defendant's supervised release. No.
3:99-cr-02468-R-1, Doc. 15. The revocation petition alleged
in Count 1 that Defendant illegally reentered the United
States in violation of 8 U.S.C. § 1326 and, in Count 2,
alleged that Defendant had driven a vehicle with a blood
alcohol content higher than 0.08%. Id. A no-bail
bench warrant was issued on May 6, 2003. No.
3:99-cr-02468-R-1, Doc. 16.
January 14, 2004, Defendant was detained by the Los Angeles
Immigration and Customs Enforcement, which notified the
Department of Homeland Security that Defendant was in its
custody. PSR, ¶ 30. Defendant was charged with
misdemeanor and felony reentry violations in the United
States District Court in the Central District of California.
PSR, ¶ 30. Having been twice deported before, Defendant
was sentenced on May 6, 2004, to six months' imprisonment
on the misdemeanor and 24 months' imprisonment on the
felony charge, to be followed by 12 months of supervised
release, which commenced on April 17, 2006. PSR, ¶ 30.
14, 2004, the Report Commencing Criminal Action was filed in
the Central District of California for the revocation of
Defendant's supervised release, as was the final
commitment and warrant of removal, for the Southern District
of California. No. 04-mj-1116, Docs. 1, 9. It took from May
14, 2004, to September 7, 2004, to transfer Defendant from
the Central District to the Southern District of California.
Doc. 25 at 6. Defendant appeared in the Southern District of
California on September 7, 2004, for his arraignment on the
revocation of his supervised release. No. 3:99-cr-02468-R-1,
Doc. 18. At the November 8, 2004 revocation hearing,
Defendant admitted the allegations as related to violating
his supervised release and he was sentenced to a term of 24
months' imprisonment, which was to run concurrent with
the illegal reentry sentences out of the Central District of
California. No. 3:99-cr-02468-R-1, Doc. 21. Defendant did not
receive another term of supervised release in the Southern
District of California. Id. Defendant was deported
on April 17, 2006, when his term of supervised release
commenced in the Central District of California. PSR, ¶
September 14, 2018, United States Border Patrol agents found
the Defendant in Dona Ana County, New Mexico, when the agents
observed four individuals running away from the International
Boundary fence near the Camino Real Landfill in Sunland Park.
PSR, ¶ 5. An Information was filed in the United States
District Court in the District of New Mexico charging the
Defendant with reentry of a removed alien in violation of 8
U.S.C. §§ 1326(a)(1), (2) and 8 U.S.C. §
1326(b)(2). PSR, ¶ 1. On October 3, 2018, the defendant
pleaded guilty to the one-count Information and entered into
a written plea agreement with the Government, pursuant to
Fed. R. Crim. P. 11(c)(1)(C), stipulating to a two-level
downward departure in accordance with the Early Disposition
Program under U.S.S.G. § 5K3.1. PSR, ¶ 3.
reflects that Defendant's base offense level is 8. PSR,
¶ 10. Defendant received a four-point specific offense
characteristic enhancement pursuant to U.S.S.G.§
2L1.2(b)(1)(A) for a previous illegal entry felony
conviction, and an eight-point specific offense
characteristic enhancement pursuant to U.S.S.G. §
2L1.2(b)(2)(B) for a non-reentry felony conviction with a
sentence of over two years. PSR, ¶¶ 11-12.
Defendant received a three-point reduction for acceptance of
responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and
(b), and another two-point reduction pursuant to his Fed. R.
Crim. P. 11(c)(1)(C) plea agreement under U.S.S.G. §
5K3.1. PSR, ¶¶ 18-20. The eight-point enhancement
under § 2L1.2(b)(2)(B) for sustaining a conviction for
which the sentence imposed was two years or more stems from
Defendant's marijuana trafficking conviction out of the
Southern District of California. PSR, ¶ 12. Defendant
also received three criminal history points related to the
marijuana trafficking charge. PSR, ¶ 28. Defendant's
criminal history points totaled 6, which results in a
criminal history category of III. ...