United States v. Baca

• Decision Date: 30 October 2018
• Docket Number: No. CR 17-2386 JB,CR 17-2386 JB
• Citation: 350 F.Supp.3d 1164
• Parties: UNITED STATES of America, Plaintiff, v. Nicholas BACA, Defendant.
• Court: U.S. District Court — District of New Mexico

350 F.Supp.3d 1164

UNITED STATES of America, Plaintiff,

v.Nicholas BACA, Defendant.

No. CR 17-2386 JB

United States District Court, D. New Mexico.

Filed October 30, 2018

John C. Anderson, United States Attorney, George Kraehe, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff

Aric G. Elsenheimer, Assistant Federal Public Defender, 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 Investigation Report, filed August 6, 2018 (Doc. 30)("Objections"). The primary issues are: (i) whether the Defendant Nicholas Baca "recklessly endanger[ed] the safety of the aircraft," warranting a base offense level of 18 under U.S.S.G. § 2A5.2(a)(2), see Presentence Investigation Report ¶ 8, at 4, filed July 26, 2018 (Doc. 28)("PSR"), when Baca intentionally pointed a laser pointer at a police helicopter, temporarily blinding the pilot, but there is no evidence that Baca was aware of the risks of his conduct; and (ii) whether the Court should apply a 6-level enhancement under U.S.S.G. § 2A5.2(b)(1)(B)(ii) for use of a dangerous weapon, see PSR ¶ 14, at 4, when Baca used a laser pointer in the commission of the underlying offense, but there is no evidence that Baca used the laser pointer in any way not contemplated by the underlying offense. The Court concludes that: (i) the PSR's base-offense-level calculation is inaccurate, because there is no evidence on the record that Baca was aware of the risks of his conduct, as is required for a finding of recklessness, and, thus, the Court sustains Baca's Objection to that calculation and concludes that the appropriate base offense level is 9, pursuant to § 2A5.2(a)(4) ; and (ii) the 6-level enhancement under U.S.S.G. § 2A5.2(b)(1)(B)(ii) does not apply, because § 2A5.2(b)(1) only applies if "(A) subsection (a)(1) or (a)(2) applies; and ... (ii) a dangerous weapon was otherwise used." Because the Court determines that Baca's base offense level, pursuant to § 2A5.2(a)(4), is 9, § 2A5.2(b)(1) does not apply, and there should be no increase for a dangerous weapon. Accordingly, the Court sustains both of Baca's Objections.

FACTUAL BACKGROUND

At the Plea Hearing, held before the Honorable Steven C. Yarbrough, United States Magistrate Judge for the District of New Mexico, Baca pled guilty to the Indictment. See Clerk's Minutes at 1, filed May 8, 2018 (Doc. 26)("Plea Hearing Minutes"). The Indictment charges that Baca "knowingly aimed the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States and at the flight path of such an aircraft" in violation of 18 U.S.C. § 39A(a). Indictment, filed September 6, 2017 (Doc. 1). There is a plea agreement in this case. See Plea Agreement, filed October 12, 2018 (Doc. 42).

The Court takes the facts from the PSR. No one has objected to the PSR's recitation of the facts, so unless someone objects or wants an evidentiary hearing to present more facts, they will serve as the Court's findings of fact for purposes of this sentencing. The PSR describes the offense conduct as follows:

6. On July 29, 2017, the defendant pointed a handheld laser at [Bernalillo County Sheriff's Office ("BCSO") ]'s helicopter in flight. The laser hit the pilot's eyes, temporarily blinding the pilot. The pilot was able to regain focus. The helicopter was hit again with the laser. The defendant fled the area in his vehicle and was followed by the helicopter. Another officer located the defendant and attempted a traffic stop of the defendant, but he failed to stop. The defendant increased his speed and turned his headlights off. He failed to yield at two stop signs. The officer lost sight of the defendant, but the helicopter continued to follow him. The defendant drove through a residential neighborhood in circles. He stopped at a drainage ditch and walked north.

7. The defendant then jumped over a wall and stayed in a yard for a short period. He attempted to go to the front of the residence, but an officer arrived to the location and arrested him. The laser was located in the defendant's vehicle. Next to the laser was a small piece of plastic containing heroin (less than one gram).

PSR ¶¶ 6-7, at 3.

PROCEDURAL BACKGROUND

On September 6, 2017, a federal grand jury charged Baca with one count of aiming a laser pointer at an aircraft, in violation of 18 U.S.C. § 39(a). See Indictment at 1. On May 8, 2018, Baca pled guilty to the Indictment that he knowingly aimed the beam of a laser pointer at an aircraft. See Plea Hearing Minutes at 1; Indictment at 1. In the Indictment, he specifically pled to the following facts:

On or about July 29, 2017, in Bernalillo County, in the District of New Mexico, the defendant, NICHOLAS BACA, knowingly aimed the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States and at the flight path of such aircraft. In violation [of] 18 U.S.C. § 39A(a).

Indictment at 1. In the Plea Agreement he specifically admitted the following facts under penalty of perjury:

a. On or about July 29, 2017, in Bernalillo County, in the District of New Mexico, I knowingly aimed the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States and at the flight path of such aircraft. Specifically, I pointed a laser pointer at a helicopter which I later learned was operated by the Bernalillo County Sheriff's Department.

b. It was not my intent in aiming the laser pointer at the helicopter to cause harm. I was under the influence of narcotics at the time and was bored, and, while I was aware of what I was doing, I did not know that I could hurt anyone by pointing the laser pointer at the helicopter.

Plea Agreement ¶ 8, at 4.

In the PSR, the United States Probation Office ("USPO") calculated Baca's base offense level at 18, pursuant to U.S.S.G. § 2A5.2(a)(2) and applied a 6-level enhancement under U.S.S.G. § 2A5.2(b)(1)(B)(ii) for use of a dangerous weapon. Baca objects to the PSR's finding that he recklessly endangered the aircraft and contends that the applicable base level offense is 9 and not 18. See Objections at 4. Baca also objects to paragraph 14 of the PSR and the application of a 6-level enhancement for the use of a dangerous weapon, contending that applying the enhancement would constitute impermissible double counting, because Baca's use of the laser pointer is already factored into the base offense level calculation. See Objections at 4-5. Baca further contends that, because the appropriate base offense level is 9, subsection (b) of § 2A5.2 does not apply. See Objections at 5. Assistant United States Attorney George Kraehe concurs in Baca's objections. See Objections at 5. The Court will further describe these Objections, with USPO's response, in its analysis.

RELEVANT LAW REGARDING THE GUIDELINES

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1976, thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Sentencing Reform Act intact, including 18 U.S.C. § 3553 : " Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." United States v. Booker, 543 U.S. at 261, 125 S.Ct. 738.

Congress has directed sentencing courts to impose a sentence "sufficient, but not greater than necessary" to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2) :

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner ....

18 U.S.C. § 3553(a)(2)(A)-(D).

[A] defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

18 U.S.C. § 3551. To achieve these purposes, § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the nature of the offense and the defendant's character; (iii) the available sentences; (iv) a policy favoring uniformity in sentences for defendants who commit similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

Although the Guidelines are no longer mandatory, both the Supreme Court and the United States Court of Appeals for the Tenth Circuit have clarified that, while the Guidelines are one of several factors which § 3553(a) enumerates, they are entitled to careful consideration. See Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ("The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill [its] statutory mandate."); United States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006) (describing the Guidelines as more than "just one factor among many"). They are significant, because "the Guidelines are an expression of popular political will about sentencing that is entitled to due consideration ... [and] represent at this...