United States v. Alderete

• Decision Date: 19 July 2021
• Docket Number: No. CR 19-1989 JB,CR 19-1989 JB
• Parties: UNITED STATES of America, Plaintiff, v. Robert ALDERETE, Defendant.
• Court: U.S. District Court — District of New Mexico

549 F.Supp.3d 1289

UNITED STATES of America, Plaintiff,

v.Robert ALDERETE, Defendant.

No. CR 19-1989 JB

United States District Court, D. New Mexico.

Filed July 19, 2021

Fred Federici, Acting United States Attorney, Thomas Outler, Assistant United States Attorney, United State Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Margaret Katze, Federal Public Defender, Mallory Gagan, Assistant Federal Public Defender, Albuquerque, New Mexico, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Objections to the Presentence Report, filed April 7, 2021 (Doc. 71)("Objections"). The primary issues are: (i) whether the Court should calculate the base-offense level under the "cross-reference" provision, U.S.S.G. § 2K2.1(c)(1), because Defendant Robert Alderete "used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense," U.S.S.G. § 2K2.1(c)(1) ; and (ii) if the cross-reference does not apply, whether Alderete's prior State court conviction for conspiracy to traffic controlled substances is a "controlled substance offense," as U.S.S.G. § 4B1.2 defines that term. The Court concludes that: (i) the cross-reference applies, because the phrase "cited in the offense of conviction" refers to whether the firearm forms the basis for the conviction and not whether the charging document specifically identifies the firearm; and (ii) the conspiracy to traffic a controlled substance (by possession with intent to distribute) in violation of N.M.S.A. § 31-31-20(A)(3), is a "controlled substances offense" for purposes of U.S.S.G. § 2B1.2(b). The Court therefore overrules the Objections.

When police officers searched Alderete's Land Rover SUV on February 27, 2019, they uncovered, not just the two loaded firearms that give rise to the first felon-in-possession charge under 18 U.S.C. § 922(g)(1) -- a Glock G31 .357 caliber pistol and a Glock G22 .40 caliber pistol -- but also two-and-a-half pounds of methamphetamine, $10,370.00 in cash, a digital scale, drug ledger, marijuana in small bags, ammunition, checks, and credit cards in various names. See PSR ¶ 14, at 6. On May 3, 2019, police officers responded to a call that alleged a man had pointed a gun at the caller and his child. See PSR ¶ 15, at 6. When the officers arrived, they found Alderete sitting in his car, a tan Infiniti with a temporary license plate. See PSR ¶ 15, at 6. After learning that Alderete was wanted on a misdemeanor warrant, the officers arrested him. See PSR ¶¶ 16-17, at 6. The officers found a round of ammunition, a small bag containing a white rock, a second small bag containing a "white powdery substance," four pills of Alprazolam,¹ $1,485.00 in cash, a United States Postal Service master key, and "various ID documents that did not belong to him." PSR ¶ 17, at 6. A search of Alderete's vehicle uncovered two more firearms -- a loaded Springfield Armory Model XDs .40 caliber pistol and a Glock Model 42, .380 caliber pistol -- as well as a backpack containing items "consistent with drug paraphernalia" and two small bags of a brown powdery substance that officers suspected to be heroin. PSR ¶¶ 18-19, at 6. Alderete's second felon-in-possession charge under 18 U.S.C. § 922(g)(1) arises from this second incident. See PSR ¶ 1, at 4; Id. at ¶¶ 15-22, at 6-7.

I. THE CROSS-REFERENCE APPLIES, BECAUSE "CITED IN THE OFFENSE OF CONVICTION" PRESENTS THE ISSUE WHETHER THE FIREARM IS THE BASIS OF THE CONVICTION, AND NOT WHETHER THE CHARGING DOCUMENT MENTIONS THE FIREARM.

First, Alderete argues in the Objections that the Presentence Investigation Report, filed March 8, 2021 (Doc. 69)("PSR"), improperly uses the cross-reference, see United States Sentencing Guidelines ("U.S.S.G.") § 2K2.1(c)(1), to determine Alderete's base-offense level, because the firearm that triggers the cross-reference "was not ‘cited in the offense of conviction’ as required by the guideline," Objections at 2 (no citation for quotation). Alderete notes that the Superseding Indictment, filed November 20, 2019 (Doc. 29)("Indictment"), does not cite or otherwise describe any firearm in any detail. Objections at 3. Alderete argues that, because the Indictment does not "cite" a firearm, it is inappropriate to use the cross-reference to calculate Alderete's base-offense level. Objections at 3. Plaintiff United States of America counters that the "arguably common sense conclusion" is that the phrase "cited in the offense of conviction" means that the cross-reference applies when "the firearm on which the current offense of conviction is based must be the same firearm that was used or possessed in the related offense." United States’ Sentencing Memorandum at 4, filed May 27, 2021 (Doc. 73)("US Memo."). The Court concludes that the cross-reference applies, because "cited in the offense of conviction" refers to whether the firearms serves as the basis of the conviction, not whether the charging document refers to the firearm.

Section 2K2.1(c)(1) of U.S.S. G. states the "cross-reference" provision:

(1) If the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition cited in the offense of conviction with knowledge or intent that it would be used or possessed in connection with another offense, apply –

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above; or

(B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.

U.S.S.G. § 2K2.1(c). The Commentary to Sentencing Guidelines explains when § 2K2.1(c)(1) applies:

(A) In General. -- Subsections (b)(6)(B) and (c)(1) apply if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively. However, subsection (c)(1) contains the additional requirement that the firearm or ammunition be cited in the offense of conviction.

(B) Application When Other Offense is Burglary or Drug Offense. -- Subsections (b)(6)(B) and (c)(1) apply: (i) in a case in which a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary; and (ii) in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In these cases, application of subsections (b)(6)(B) and, if the firearm was cited in the offense of conviction, (c)(1) is warranted because the presence of the firearm has the potential of facilitating another felony offense or another offense, respectively.

U.S.S.G. § 2K2.1, cmt. n.14(A)-(B).

Although the United States Court of Appeals for the Tenth Circuit has not elaborated on the meaning of "cited in the offense of conviction" in U.S.S.G. § 2K2.1(c)(1), the United States Court of Appeals for the Eighth Circuit has stated that "[t]he cross-reference applies where a defendant is convicted of unlawfully possessing a shotgun and used the same shotgun in connection with a robbery eight months earlier." United States v. Edger, 924 F.3d 1011, 1014 (8th Cir. 2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 420, 205 L.Ed.2d 235 (2019). The Eighth Circuit has concluded that the cross-reference does not apply, however, where a defendant is "convicted of unlawfully possessing a shotgun and used a handgun in connection with a robbery eight months earlier," because the "handgun was not ‘cited in the offense of conviction.’ " United States v. Edger, 924 F.3d at 1014 (quoting U.S.S.G. § 2K2.1, cmt. n.14(E)(ii))(emphasis in original). The Eighth Circuit concludes that the phrase "cited in offense of conviction," therefore, "depends on whether the firearm formed the basis for the conviction, not whether the firearm was specifically identified in the charging document." United States v. Edger, 924 F.3d at 1014-15. See United States v. Aberant, 741 F. App'x 905, 908 (4th Cir. 2018) ("Nothing in the Guideline or the commentary requires that the firearm must be specifically identified in the charging document in order for the cross reference to apply."). United States v. Singleton, No. CR-15-12, 2019 WL 6492854, at *6 (E.D. La. Dec. 3, 2019) (Barbier, J.)("The ultimate determination of relationship between the firearm [and] the other offense is still a ‘factual determination,’ not a formulaic requirement that the individual firearm be cited with specificity in the charging document.")(quoting United States v. Hernandez, 738 F. App'x 307 (5th Cir. 2018) (per curiam)); United States v. Scheiblich, 346 F. Supp. 3d 1076, 1080 (S.D. Ohio 2018) (Marbley, J.)("The pertinent question, then, is whether the Government proved that the revolver in the offense of conviction was also used during the course of conduct alleged in state court.").

Alderete does not dispute that the firearms the officers found in his Land Rover SUV on February 27, 2019 -- a Glock .40 caliber pistol and a Glock .357 caliber pistol -- and in his Tan Infiniti on May 3, 2019 -- a loaded Springfield Armory Model XDs .40 caliber pistol and a Glock Model 42 .380 caliber pistol -- were the same firearms which he had while also possessing various drug paraphernalia, including 2.5 pounds of methamphetamine. See Objections at 1-3PSR ¶ 22, at 7; Plea Agreement ¶ 9, at 4, filed January 5, 2021 (Doc. 67)("Plea"). The objection is, therefore, not one of fact, but a legal one that the cross-reference does not apply, because the Indictment does not describe the firearms. See Objection at 3-8; Indictment...