United States v. Esqueda
| Decision Date | 04 October 2021 |
| Docket Number | CR 20-1888 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ALI ALHIGAIMI ESQUEDA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
UNITED STATES OF AMERICA, Plaintiff,
v.
ALI ALHIGAIMI ESQUEDA, Defendant.
No. CR 20-1888 JB
United States District Court, D. New Mexico
October 4, 2021
Counsel:
Fred J. Federici Acting United States Attorney Holland S. Kastrin Assistant United States Attorney United State Attorney's Office Attorneys for the Plaintiff
Margaret A. Katze Federal Public Defender Devon Fooks Assistant Federal Public Defender Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendant's Objections to the Presentence Report and Sentencing Memorandum, filed May 28, 2021 (Doc. 37)(“Objections”). The primary issue is whether the Court can apply a 4-level sentencing enhancement under United States Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(b)(6)(B), because Defendant Ali Alhigaimi Esqueda stole a vehicle with a gun hidden in the center console, and, then, when police apprehended him, he exited the vehicle carrying the gun. The Court concludes that U.S.S.G. § 2K2.1(b)(6)(B)'s 4-level sentencing enhancement applies, because Esqueda possessed a firearm in connection to a burglary. The Court, therefore, overrules the Objections.
FINDINGS OF FACT
The Court takes its facts from the Second Presentence Investigation Report, filed September 9, 2021 (Doc. 44)(“PSR”), and from the Objections.[1] The Court makes its findings of fact by a preponderance of the evidence. See United States v. Williams, No. CR. 17-2556 JB,
2020 WL 4016108, at *6 (D.N.M. July 16, 2020)(Browning, J.)(citing United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008)). Accord United States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008). The Court may rely upon hearsay if the hearsay is reliable. See United States v. Banda, 168 Fed.Appx. 284, 289 (10th Cir. 2006)(unpublished)(“[T]here is no prohibition on considering hearsay testimony at sentencing, provided it bears indicia of reliability.”).[2] The evidence and information upon which the Court relies must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).
1. On September 11, 2020, near the intersection of Coors, Blvd. and Parajito Rd. in Albuquerque, New Mexico, Ali Alhigaimi Esqueda and Fernando Landeros stole a truck belonging to the Public Service Company of New Mexico (“PNM”). PSR ¶ 11-12, at 4-5.
2. There was a Smith & Wesson M&P .40 caliber pistol in the truck's center console
when Esqueda and Landeros stole the truck. See PSR ¶ 11-12, at 4-5.
3. A PNM employee called the police and said that two men had stolen his truck. See PSR ¶ 11, at 4.
4. The PNM employee told the dispatcher that he left the truck running, and that he left the gun in the truck's center console. See PSR ¶ 11, at 4-5.
5. A PNM employee located the truck by using a global position system tracker. See PSR ¶ 12, at 5.
6. Officers from the Bernalillo County Sheriff's Office (“BCSO”), with support from BCSO's Metro I air support unit, found the truck. See PSR ¶ 12, at 5.
7. A police officer attempted to stop the truck by performing a traffic stop, but Esqueda, the driver, “carelessly fled from deputies at a high rate of speed endangering others on the roadway.” PSR ¶ 12, at 5.
8. Police officers on the ground stayed back, while Metro I continued to observe the truck. See PSR ¶ 13, at 5.
9. Esqueda continued “to drive onto incoming lanes of traffic and was running red lights at a high rate of speed, ” even though police officers were not actively pursuing him. PSR ¶ 13, at 5.
10. Police officers used a spike strip to puncture the truck's front, driver's-side tire, but Esqueda continued to drive. See PSR ¶ 14, at 5.
11. Esqueda crashed the truck into a fence. See PSR ¶ 14, at 5.
12. Esqueda got out of the car on the driver's side, “fled on foot, and attempted to hide under a vehicle in [a] parking lot.” PSR ¶ 14, at 5.
13. Landeros also fled. See PSR ¶ 14, at 5.
14. When police arrived, Esqueda got out from under the sedan “with a handgun in his right hand.” PSR ¶ 14, at 5.
15. Esqueda inadvertently “briefly point[ed]” the gun in the police officers' direction. PSR ¶ 14, at 5.[3]
16. Esqueda stated to police officers “I have a gun.” PSR ¶ 14, at 5 17. Esqueda released the gun's magazine, dropped gun, and was arrested without further incident. See PSR ¶ 14, at 5.
18. The gun “had a round chambered.” PSR ¶ 14, at 5.
19. Esqueda later admitted to being in the truck but stated that he was not driving. See ¶ 15, at 5.
20. Esqueda also admitted that he retrieved the gun before he fled the truck. See ¶ 15, at 5.
21. When Esqueda stole the PNM truck, he had already been convicted of a felony. See PSR ¶ 38-39, 9-10; id. ¶ 98, at 20.
PROCEDURAL BACKGROUND
On February 26, 2021, Esqueda pled guilty to one count of being a felon-in-possession, in violation of 18 U.S.C. §§ 922(g)(1) and 924. See Plea Agreement at 3, filed February 26, 2021 (Doc. 30). In the PSR, the United States Probation Office (“USPO”) calculates Esqueda's total-offense level to be 19. See PSR ¶ 33, at 7. The USPO recommends a base-offense level of 14, U.S.S.G. § 2K2.1(b)(4)(A)'s 2-level enhancement for the firearm being stolen, U.S.S.G. § 2K2.1(b)(6)(B)'s 4-level enhancement for using or possessing a firearm in connection with another felon offense, U.S.S.G. § 3C1.2's 2-level enhancement for obstructing justice, and U.S.S.G. § 3E1.1's 3-level reduction for acceptance of responsibility. See PSR ¶¶ 23-33, at 6-7.
Esqueda objects to the application of U.S.S.G. § 2K2.1(b)(6)(B)'s 4-level enhancement for using or possessing a firearm in connection with another felon offense. See Objections at 1-2. Esqueda states that he “[o]stensibly . . . possessed the firearm in connection with the New Mexico felony offense of aggravated fleeing, ” but there is no evidence that he “possessed the gun at the same time . . . [that he]was allegedly committing the crime of aggravated fleeing.” Objections at 1-2. Esqueda contends that he neither actually nor constructively possessed the gun while allegedly committing aggravated fleeing from a law enforcement officer, in violation of N.M.S.A. § 30-22-1.1. See Objections at 3-4. According to Esqueda, although there is a “lengthy recording” of his flight from the police, “one cannot see if he possessed the firearm, either actually or constructively as the crime of aggravated fleeing was occurring, ” because the helicopter recorded the video; so it does not show the truck's interior. Objections at 4. According to Esqueda, the video does not show the gun until Esqueda “exits the vehicle once the vehicle is stopped.” Objections at 4. Esqueda contends that, at that point, the “crime of aggravated fleeing a law enforcement officer was complete.” Objections at 4. Moreover, Esqueda argues that there is “no
evidence” about “when” he “retrieved the firearm.” Objections at 4.
The United States responds to Esqueda. See United States' Response to Defendant's PSR Objection and Sentencing Memorandum at 2, filed June 4, 2021 (Doc. 38)(“Response”). The United States contends both that Esqueda possessed the gun in furtherance of aggravated fleeing and that Esqueda possessed the gun, which “clearly furthered his felony car theft, ” in violation of N.M.S.A. § 30-16D-1. Response at 3. The United States references U.S.S.G. § 2K2.1's application notes, which state that the U.S.S.G. § 2K2.1(b)(6)(B) applies “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.” U.S.S.G. § 2K2.1 cmt. 14(B). See Response at 3. According to the United States, Esqueda's theft of the PNM truck is “akin to the burglary example in that [Esqueda] encountered the firearm during the course of an auto theft.” Response at 3. Additionally, the United States asserts that, even if Esqueda did not “engage in any other conduct with the firearm during the course of the auto theft, the presents of the firearm still had the potential to facilitate another felony offense.” Response at 3. The United States contends that this risk “remains true” if Esqueda either “found the firearm immediately upon stealing the car or moments before exiting the stolen car in an attempt to flee from law enforcement.” Response at 4.
The USPO agrees with the United States and maintains that U.S.S.G. § 2K2.1(b)(6)(B)'s 4-level enhancement applies. See Addendum to the Presentence Report at 1, filed June 21, 2021 (Doc. 39)(“Addendum”). In the Addendum, the USPO states that Esqueda possessed the gun “in connection with another felony offense, Aggravated Burglary.” Addendum at 2. In addition, the USPO notes that Esqueda was charged with unlawful taking of a motor vehicle, aggravated fleeing from law enforcement, aggravated burglary, and receipt, transportation, or possession of a firearm
or destructive device. Addendum at 2. According to the USPO, “[e]ach of these except for the last charge (as it is the same as the conviction in this case)” is sufficient to apply U.S.S.G. § 2K2.1(b)(6)(B)'s 4-level enhancement. Addendum at 2.
RELEVANT LAW REGARDING THE GUIDELINES
U.S.S.G. § 2K2.1(b)(6)(B) provides for a 4-level enhancement “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “[A]nother felony offense” “means any federal, state,...
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