United States District Court, D. New Mexico
August 20, 2019, the Court of Appeals issued a mandate (Doc.
59) making its July 29, 2019 Judgment (Doc. 59-1) effective
August 20, 2019. In its opinion, United States v.
Gonzales, 931 F.3d 1219 (10th Cir. 2019), the Court of
Appeals directed the District Court, on remand, to
“address the factual question of Mr. Gonzales's
intent.” Gonzales, 931 F.3d at 1224. On that
issue the Government had contended that “Mr. Gonzales
intended to instill fear of bodily harm when he pulled the
gun from his holster.” Id. Counsel for Mr.
Gonzales responded that he merely “was trying to
discard the gun.” Id. The ultimate question is
whether six offense levels should be added under United
States Sentencing Guideline § 3A1.2(c)(1) in determining
the appropriate sentencing range for Mr.
the hearing on November 1, 2018 at which sentence was
imposed, the factual record has not been supplemented. Hence,
I must attempt to divine Mr. Gonzales' specific intent
based on the evidence presented at the hearing on October 3,
2018. See Transcript, October 3, 2018 Hearing (Doc.
41). Only one witness, Albuquerque Police Department
Detective Eric Endzel testified at the hearing. I found
Detective Endzel's testimony to be credible. Memorandum
Opinion (Doc. 45) at 1. Detective Endzel did not express a
direct opinion about Mr. Gonzales' specific intent.
However, in answer to the question âwas he trying to discard
it or was he trying to use it?â, Detective Endzel stated: âI
believe he was trying to use it.â Transcript October 3, 2018
Hearing (Doc 41) at 22, lines 13-15.
parts of Detective Endzel's testimony alluded to Mr.
Gonzales' intent to harm persons, especially Detective
Endzel and other officers. I posed the question “were
you in fear of your safety or life at the time you saw Mr.
Gonzales attempting to pull the gun out of his
waistband?” Id. at 21, lines 23-25. Detective
Endzel replied: “Yes sir. I had actually made the
decision to fire upon him to protect myself. I didn't
have a chance. He fumbled it before I could acquire a sight
picture.” Id. at 22, lines 1-3. In reply to a
question by defense counsel, Detective Endzel rejoined:
“I clearly observed him clear his shirt from his
waistband, draw a firearm from his waistband. Those actions
made me believe that he was pulling a firearm to aid his
escape from officers.” Id. at 20, lines 10-13.
In response to defense counsel's declaration, “You
don't know what Mr. Gonzales intended when he pulled that
out, because you're not Mr. Gonzales, correct?”,
Detective Endzel simply disclaimed: “I am not Mr.
Gonzales.” Id. at lines 18-21. When asked if
Mr. Gonzales' actions caused him to be intimidated,
Detective Endzel asserted: “When I saw him begin to
pull the weapon, it placed me in imminent fear for my life,
the lives of the officers around me, and the civilians in the
area. I believed he was pulling the firearm to attempt to use
it to facilitate his escape from law enforcement.”
Id. at 13, lines 5-9.
bearing tangentially on Mr. Gonzales' intent were
Detective Endzel's observations regarding what happened
in the micro-second interval between Mr. Gonzales initially
losing control of the gun on the upswing from his waistband
and the gun striking the ground. Here, Detective Endzel
reported: “[W]hen he lost control of it, he did not
throw it. It continued in an upward trajectory which means he
lost control during his draw stroke, and there was no attempt
made to throw it away from his person. I observed him reach
toward it in an attempt catch it and to retain it.”
Id. at 13, lines 13-17. Describing this occurrence a
little differently, Detective Endzel said: “As he was
running around the gas pumps, he wasn't wearing a jacket,
just a long T-shirt. Both hands went down, pulled the shirt
up to clear his waistband. I clearly saw a firearm in what
appeared to be a holster on the side of his waist. He
acquired a firing grip with his right hand, started pulling
it out. The firearm started tumbling this way, and with both
hands, I saw him attempt to retain it. When he missed it, the
firearm fell . . ..” Id. at 12, lines 13-20.
counsel's offer of evidence supporting Mr. Gonzales'
position about his intent, consisted of exhibits, which the
Court finds were of little relevance and not probative of Mr.
Gonzales' intent, and cross examination of Detective
Endzel. Defense counsel declaimed “You don't know
if he was pulling it to facilitate his escape, do you?”
Id. at 19, lines 2-4. This prompted the Assistant
United States Attorney to object: “He's asking him
to speculate about what the defendant was thinking. He
can't do that, but he can talk about his
observations.” Id. at lines 5-7. To this
defense counsel retorted: “And that's exactly my
point. So as long as that point is made clear, I'll move
on.” Id. at lines 8-9. However, defense
counsel then repeated essentially the same question:
“You don't know if Mr. Gonzales was throwing away a
firearm so he wouldn't be arrested for being in
possession of a firearm, do you?” Id. at lines
14-16. Detective Endzel calmly answered: “I did not
observe him throw a firearm.” Id. at line 17.
Defense counsel also established that if any of the five
officers at the scene had been in fear for their lives, they
would have been justified in using deadly force, but none did
that. Id. at 21, lines 16-21. In addition, I
inquired whether Mr. Gonzales ever pointed his gun at
Detective Endzel and Detective Endzel answered, “No
sir.” Id. at 12, lines 21-22.
conclusion of the testimony and argument by counsel, I found
that “the officer was in fear of his life believing
that the defendant was trying to grip the handgun in order to
do the officer harm.” Id. at 25, lines 18-20.
Although I made this factual finding about Detective
Endzel's belief regarding Mr. Gonzales' intent, I did
not explicitly find what Mr. Gonzales had specifically
Court of Appeals pointed out that “the §
3A1.2(c)(1) enhancement would apply only if Mr. Gonzales had
the specific intent to put a law enforcement officer in fear
of serious bodily injury.” Gonzales, 931 F.3d
at 1224. It summarized the parties' positions thusly:
“On that issue, the parties presented different views
of the evidence. The government argues that Mr. Gonzales
intended to instill fear of bodily harm when he pulled the
gun from his holster. Mr. Gonzales responds that the evidence
permitted a reasonable inference that he was trying to
discard the gun. Id. The Court of Appeals then
declared: “Both findings would be reasonable under the
evidence, ” and directed this Court on remand to
address the factual question of Mr. Gonzales' intent.
Id. (further citation omitted).
what was Mr. Gonzales' specific intent? He chose not to
tell us in court, as was his right. He uttered nothing during
his encounter with the police. He did not threaten,
“Back off, I've got a gun.” Neither did he
yell, “Don't shoot, I am throwing my gun
effort to ascertain Mr. Gonzales' specific intent, I have
carefully reconsidered the evidence. Intuition strongly
suggests and I find that Mr. Gonzales did intend,
specifically, to harm Detective Endzel, but was thwarted in
his effort to do so by fumbling his gun and trying,
unsuccessfully, to regain control of it. Consequently, I
conclude that the United States Probation Office correctly
determined that six offense levels should be added under
U.S.S.G. § 3A1.2(c)(1). The total offense level becomes
17 and the guideline imprisonment range 27 to 33 months based
on the Court's prior ruling that the criminal history
category is II.
 Guideline § 3A1.2(c)(1)
If, in a manner creating a substantial risk of serious
bodily injury, the defendant or a person for whose conduct
the defendant is otherwise accountable -
(1) knowing or have reasonable cause to believe that a
person was a law enforcement officer, assaulted such officer
during the course of the offense or immediate ...