377 F.Supp.2d 1141 (D.N.M. 2005), Crim. 04-2245, United States v. Begay

Docket Nº:Crim. 04-2245
Citation:377 F.Supp.2d 1141
Party Name:United States v. Begay
Case Date:July 01, 2005
Court:United States District Courts, 10th Circuit, District of New Mexico

Page 1141

377 F.Supp.2d 1141 (D.N.M. 2005)

UNITED STATES of America, Plaintiff,

v.

Larry BEGAY, Defendant.

No. CRIM.04-2245 WJ.

United States District Court, D. New Mexico.

July 1, 2005

Page 1142

David M. Walsh, Esq, U.S. Attorney's Office, District of New Mexico, for U.S. Attorneys.

Margaret A. Katze, Esq., Federal Public Defender's Office, Albuquerque, NM, for Larry Begay (1), defendant.

MEMORANDUM OPINION AND ORDER

JOHNSON, District Judge.

THIS MATTER comes before the Court on the issue of whether Defendant Larry Begay ("Defendant") should be sentenced as an armed career criminal pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 as a result of Defendant's three separate convictions for the felony offense under New Mexico law for driving while under the influence of intoxicating liquor ("DUI"), fourth or subsequent offense ("felony DUI"). 1 For the reasons set forth in this Memorandum Opinion, the Court finds and concludes that Defendant is an armed career criminal within the meaning of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 and shall be sentenced accordingly.

Procedural and Factual Background

On January 24, 2005, Defendant plead guilty to a single count indictment charging him with felon in possession of a firearm in violation of 18 U.S.C.§ 922(g)(1) and 18 U.S.C. § 924(a)(2). The United States Probation Office prepared a Pre-Sentence Report ("PSR") which calculated Defendant's sentencing guideline imprisonment range to be 41-51 months based on an offense level of 15 and a criminal history category of VI. The Defendant did not submit formal written objections to any of the reported facts or the sentencing guideline range set forth in the PSR. The United States of America ("Government"), however, did object to the PSR on the basis that it failed to classify Defendant as an armed career criminal based on his criminal history.

The felon in possession of a firearm arose out of an incident involving the Defendant who, after a night of drinking alcoholic beverages, separately pointed a .22 caliber rifle at two female family members demanding money and then threatening to kill the two women by repeatedly pulling the trigger of the rifle. (PSR, ¶ 10-11). Fortunately for all concerned, the rifle was not loaded.

Paragraphs 32 through 64 of the PSR detail Defendant's adult criminal history. Since 1983, Defendant has amassed 22 DUI arrests of which 12 resulted in convictions. For purposes of this Memorandum Opinion, the Court will consider only Defendant's 12 DUI convictions since they form the basis of the Government's contention that Defendant should be sentenced as an armed career criminal. It should be

Page 1143

noted, however, that in addition to Defendant's DUI criminal history, he has an extensive record of arrests and convictions in the Navajo Nation Tribal Court as well as various state courts in Arizona and New Mexico for offenses such as possession of liquor, public intoxication, reckless driving, just to name a few.

Defendant's 12 DUI convictions form the basis for his three felony DUI convictions arising out of the New Mexico State District Courts in the counties of McKinley and Socorro as reflected in Government exhibits 1, 2 and 3 admitted into evidence at the hearing on May 16, 2005. As previously noted, there is no dispute regarding Defendant's criminal history or his three separate convictions for felony DUI. What is disputed is whether the three felony DUI convictions can be the basis for sentencing Defendant as an armed career criminal.

LEGAL ANALYSIS

The Government contends that Defendant is an armed career criminal pursuant to 18 U.S.C. § 924(e). U.S.S.G. § 4B1.4 implements 18 U.S.C.§ 924(e) which mandates a statutory minimum term of incarceration of 15 years for a defendant (i) who is convicted of violating 18 U.S.C. § 922(g) (felon in possession of a firearm) and (ii) who has three previous convictions for a violent felony or a serious drug offense. The instant felony offense to which Defendant admitted is felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and there is no dispute that Defendant has three separate convictions for felony DUI, a fourth degree felony punishable under New Mexico law by incarceration for a term not to exceed 18 months. See NMSA 1978 § 66-8-102(G) (as amended). 2 Therefore, the question of whether Defendant is an armed career criminal depends on whether felony DUI under New Mexico law is a crime of violence which is defined as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that:

1. Has as an element the use, attempted use or threatened use of physical force against a person of another or;

2. Is burglary of a dwelling, arson, or extortion involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

See 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2(a) (emphasis added).

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4 practice notes
  • 470 F.3d 964 (10th Cir. 2006), 05-2253, United States v. Begay
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • December 12, 2006
    ...was a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Begay, 377 F.Supp.2d 1141 (D.N.M. 2005). On appeal Mr. Begay contends that (1) felony driving while intoxicated is not a violent felony under the ACCA, and (2) the district ......
  • 553 U.S. 137 (2008), 06-11543, Begay v. United States
    • United States
    • Federal Cases United States Supreme Court
    • April 16, 2008
    ...found that Begay had at least three prior convictions for a crime "punishable by imprisonment for a term exceeding one year." 377 F.Supp.2d 1141, 1143 (NM 2005). The judge also concluded that Begay's "three felony DUI convictions involve conduct that presents a serious potent......
  • United States v. Begay, 061608 FED10, 05-2253
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • June 16, 2008
    ...was a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Begay, 377 F.Supp.2d 1141 (D.N.M. 2005). On appeal Mr. Begay contends that (1) felony driving while intoxicated is not a violent felony under the ACCA, and (2) the district ......
  • 417 F.3d 704 (7th Cir. 2005), 04-3731, Linda T. ex rel. William A. v. Rice Lake Area School Dist.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • August 2, 2005
    ...greater specificity in the IEP, the ALJ was simply ordering the District to complete an evaluation it had already begun. Linda T., 377 F.Supp.2d at 1144. We see no abuse of discretion in the district court's reasoned determination that this degree of success is de minimis and insufficient t......
4 cases
  • 470 F.3d 964 (10th Cir. 2006), 05-2253, United States v. Begay
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • December 12, 2006
    ...was a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Begay, 377 F.Supp.2d 1141 (D.N.M. 2005). On appeal Mr. Begay contends that (1) felony driving while intoxicated is not a violent felony under the ACCA, and (2) the district ......
  • 553 U.S. 137 (2008), 06-11543, Begay v. United States
    • United States
    • Federal Cases United States Supreme Court
    • April 16, 2008
    ...found that Begay had at least three prior convictions for a crime "punishable by imprisonment for a term exceeding one year." 377 F.Supp.2d 1141, 1143 (NM 2005). The judge also concluded that Begay's "three felony DUI convictions involve conduct that presents a serious potent......
  • United States v. Begay, 061608 FED10, 05-2253
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • June 16, 2008
    ...was a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Begay, 377 F.Supp.2d 1141 (D.N.M. 2005). On appeal Mr. Begay contends that (1) felony driving while intoxicated is not a violent felony under the ACCA, and (2) the district ......
  • 417 F.3d 704 (7th Cir. 2005), 04-3731, Linda T. ex rel. William A. v. Rice Lake Area School Dist.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • August 2, 2005
    ...greater specificity in the IEP, the ALJ was simply ordering the District to complete an evaluation it had already begun. Linda T., 377 F.Supp.2d at 1144. We see no abuse of discretion in the district court's reasoned determination that this degree of success is de minimis and insufficient t......