United States v. Folse, No. CR 15–2485 JB

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
• Citation: 301 F.Supp.3d 1037
• Parties: UNITED STATES of America, Plaintiff, v. Kevin FOLSE, Defendant.
• Decision Date: 05 October 2017
• Docket Number: No. CR 15–2485 JB

301 F.Supp.3d 1037

UNITED STATES of America, Plaintiff,
v.
Kevin FOLSE, Defendant.

No. CR 15–2485 JB

United States District Court, D. New Mexico.

Filed October 5, 2017

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Samuel A. Hurtado, William J. Pflugrath, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Mary V. Carmack–Altwies, Mary V. Carmack Law PC, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant Kevin Folse's Formal Objections to Presentence Report, filed May 15, 2017 (Doc. 223)("Objections"). The primary issues are: (i) whether Defendant Kevin Folse qualifies for a "career offender" sentencing enhancement under U.S.S.G. § 4B1.1 based on his prior felony convictions for aggravated battery with a deadly weapon and possession of marijuana with intent to distribute, as well as the two carjacking convictions rendered in this case; (ii) whether the Court should apply a 2–level obstruction-of-justice enhancement for witness intimidation under U.S.S.G. § 3C1.1 ; and (iii) whether the Court should apply a 2–level obstruction-of-justice enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. The Court concludes that all three enhancements apply. First, Folse qualifies as a career offender, because his carjacking conviction in this case is a "crime of violence" under U.S.S.G. § 4B1.2(a), his prior aggravated battery with a deadly weapon conviction was a "crime of violence" under U.S.S.G. 4B1.2(a), and his prior possession of marijuana with intent to distribute conviction is a controlled substance offense under § 4B1.2(b). Second, Folse qualifies for the obstruction-of-justice enhancement, because he asked "Creeper" to tell a potential witness to go "M.I.A." prior to trial. Third, he qualifies for the obstruction-of-justice reckless-endangerment-during-flight enhancement, because Folse put pedestrians and other drivers at substantial risk of serious injury or death while fleeing police when he threw a gun out of a moving vehicle, drove at high speeds, and ran both a red light and a stop sign.

FACTUAL BACKGROUND

The Court takes its factual account from the Presentence Investigation Report, filed May 10, 2017 (Doc. 220)("PSR"). Later, the Court will note Folse's factual objections and, where necessary to determine whether the disputed sentencing enhancements apply, the Court will resolve them.

Between June 30 and July 2, 2015, Albuquerque Police Department ("APD") detectives searched for Folse, a.k.a. "Criminal," who was fleeing from law enforcement and had "committed various violent crimes" during flight. PSR ¶ 5, at 4. On July 2, 2015, APD officers stopped a stolen black Cadillac, which Folse "had been driving a few hours earlier."¹ PSR

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¶ 6, at 4. Although the officers determined that Folse was not the driver, the driver stated that he had just purchased the vehicle from Folse and that Folse was located at 1825 Pitt Street NE in Albuquerque, New Mexico. See PSR ¶ 6, at 4. APD dispatched officers to the residence, where they observed an individual matching Folse's description close the front door. See PSR ¶ 7, at 4. The officers failed, however, to positively identify the man. See PSR ¶ 7, at 4. An APD detective then proceeded to the back of the residence and observed an individual—later identified as Valente Estrada—looking out the back window. See PSR ¶ 7, at 4. Estrada said the front door was "barricaded" and that he was alone in the residence. PSR ¶ 8, at 5.

Shortly thereafter, the man first observed at the front door—later identified as Folse—"had [Estrada] join four other individuals in the bedroom with Angela Murray," Folse's girlfriend,² where Folse "proceeded to take all of their cellular telephones and remove[ ] their batteries...." PSR ¶ 8, at 5. Estrada "observed that Folse had both a knife and a handgun in his possession." PSR ¶ 8, at 5. To help "ease the tension," Estrada offered Folse and the others marijuana and methamphetamine. PSR ¶ 9, at 5. After consuming the methamphetamine, Folse threatened to stab one of the individuals and to hold "everyone in the room at gunpoint for seven hours."³ PSR ¶ 9, at 5. Tensions were high, because Murray had challenged Folse to prove that he had not "been with any of the women in the house[.]" PSR ¶ 10, at 5. In response to this challenge, Folse "pulled out his gun and started pistol-whipping one of the females in the home." PSR ¶ 10, at 5.

Folse eventually decided to leave the residence, but, before leaving, Folse ordered Estrada to hand over the keys to his 2002 silver Saturn passenger vehicle. See PSR ¶ 11, at 5. Estrada complied with Folse's order, fearing that he "had no choice ... based on the continuous threats and acts of violence against him." PSR ¶ 11, at 5. Folse and Murray then exited the house, and ordered Estrada and one of Murray's female friends into the Saturn. See PSR ¶ 11, at 5. Estrada and the friend "did not feel they had a choice but to go with Folse...." PSR ¶ 11, at 5.

APD received information that Folse had departed the house in a silver Saturn. See PSR ¶ 12, at 5. Officers soon caught up to the Saturn and attempted to conduct a traffic stop; Folse refused to yield, however, and, during the ensuing flight, threw a semiautomatic pistol from the vehicle. See PSR ¶ 12, at 5. Folse eventually lost control of the vehicle and "crashed violently, rolling the car onto its roof." PSR ¶ 13,

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at 6. As APD arrived on the scene, "the vehicle was still spinning and four individuals emerged from the broken windows." PSR ¶ 13, at 6.

Folse and Murray fled on foot. See PSR ¶ 13, at 6. As they entered a residential street, they came upon a 2008 Kia Sorrento sitting in a driveway with the engine running. See PSR ¶ 14, at 6. Folse opened the driver-side door and told Michael B., a juvenile sitting in the passenger seat, that he had "three seconds to get out." PSR ¶ 14, at 6. Michael B. complied with Folse's order, but as Michael B. was exiting the car, Folse backed the car out of the driveway and clipped Michael B.'s left shoulder with the open car door. See PSR ¶ 14, at 6; id. ¶ 16, at 6. In an interview and later at trial, Michael B. testified that Folse had a firearm; immediately after the incident, however, he told a 911 operator that Folse did not have a firearm. See PSR ¶ 14, at 6; id. ¶ 16, at 6.

APD officers later located the Kia Sorrento and recognized Folse as the driver. See PSR ¶ 15, at 6. When the officers attempted another vehicle stop, Folse again failed to yield. See PSR ¶ 15, at 6. "A vehicle pursuit ensued, but was discontinued due to the reckless driving by Folse." PSR ¶ 15, at 6. Folse eventually abandoned the Kia Sorrento on Interstate 40, hopped the freeway retaining wall, and "ran towards a business complex where he was able to get a ride out of the area." PSR ¶ 15, at 6.

The next day, on July 3, 2015, APD located Folse at a Seven–Eleven store in Albuquerque. See PSR ¶ 17, at 6. When officers attempted to arrest Folse, he fled the scene in a stolen 1999 Ford F–150 truck.⁴ See PSR ¶ 17, at 6. A vehicle pursuit again ensued, but "officers disengaged from the chase because Folse was putting the public at risk of being harmed." PSR ¶ 17, at 6. Later that day, Isleta Pueblo Police Department officers observed the Ford F–150 truck parked at the Isleta Casino outside Albuquerque. See PSR ¶ 17, at 6. After reviewing security tapes, officers confirmed that Folse was in the Casino. See PSR ¶ 17, at 6. When Folse exited Isleta Casino, officers arrested him without incident. See PSR ¶ 17, at 6. The keys to the stolen F–150 were in his pocket. See PSR ¶ 17, at 6.

In September 2015, Folse wrote a letter to a friend known as "Creeper," asking him "to do what he could in assuring that [Estrada] would not show up to testify." PSR ¶ 18, at 6. "The letter was given to [Estrada] who then gave it to law enforcement." PSR ¶ 18, at 6–7.

PROCEDURAL BACKGROUND

On July 14, 2015, a grand jury indicted Folse for: (i) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count I); (ii) carjacking a silver Saturn, in violation of 18 U.S.C. § 2119 (Count II); and (iii) using, carrying, and brandishing a firearm in relation to and in furtherance of a crime of violence, i.e., carjacking the Saturn, in violation of 18 U.S.C. § 924(c) (Count III). See Indictment at 1–2, filed July 14, 2015 (Doc. 10)("Indictment"). On September 9, 2015, a grand jury returned a Superseding Indictment. See Superseding Indictment at 1. The Superseding Indictment preserves the original Indictment's three counts and adds two new counts. Count IV charges Folse with carjacking a 2008 Kia Sorrento, in violation of 18 U.S.C. § 2119, see Superseding

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Indictment ¶ 4, at 3, and Count V charges Folse with using, carrying, and brandishing a firearm in relation to and in furtherance of a crime of violence, i.e., carjacking the Kia Sorrento, in violation of 18 U.S.C. § 924(c), see Superseding Indictment ¶ 5, at 3. Plaintiff United States of America later dismissed Count...