United States v. Lucero
| Decision Date | 28 March 2022 |
| Docket Number | CR 20-2073 JB |
| Court | U.S. District Court — District of New Mexico |
| Parties | UNITED STATES OF AMERCIA, Plaintiff, v. ERNESTO LUCERO, Defendant. |
Fred J. Federici
Acting United States Attorney
Robert I. Goldaris
Assistant United States Attorneys
United States Attorney's Office
Albuquerque, New Mexico
Attorneys for the Plaintiff
Margaret Katze
Federal Public Defender Emily P. Carey
Assistant Federal Public Defender Albuquerque, New Mexico
Attorneys for the Defendant
MEMORANDUM ORDER AND OPINIONTHIS MATTER comes before the Court on the Defendants' Objections to the Presentence Report, filed March 4, 2022 (Doc. 40)(“Objections”). The primary issues are: (i) whether the United States Probation Office (“USPO”) properly recommends a 2-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon, because Defendant Ernesto Lucero did not have actual or constructive possession of the firearm in the vehicle; (ii) whether Lucero's 2010 Robbery conviction should be evaluated for 3 criminal history points; and (iii) whether the USPO properly recommends an enhancement under U.S.S.G. § 4B1.1(b)(1) for Lucero being a career offender, because Lucero does not have two prior qualifying convictions. The Court concludes that: (i) U.S.S.G. § 2D1.1(b)(1) should apply, because there is a close spatial and temporal relationship between the firearm and methamphetamine; (ii) for his 2010 Robbery conviction, Lucero was sentenced to 249 days of incarceration, and his sentence occurred more than ten years before the instant offense, so it should be evaluated for 0 criminal history points instead of 3; and (iii) because Lucero's 2010 Robbery conviction should be evaluated for 0 criminal history points, Lucero does not have two predicate offenses to justify the Court classifying him as a career offender. Consequently, the Court will overrule in part and sustain in part Lucero's Objections.
On October 30, 2020, an officer of the McKinley County Sheriff's Office pulled over Lucero on Interstate 40 outside of Gallup, New Mexico, because Lucero was driving eighty-eight miles per hour in a sixty-five miles per hour zone. See Presentence Investigation Report ¶¶ 9-10, at 4, filed January 14, 2022 (Doc 35)(“PSR”). Lucero did not have proof of registration for the vehicle. See PSR ¶ 11, at 4. The officer observed that both Lucero and his female passenger were “very anxious and nervous, ” and that the two parties provided the officer with different reasons for their travel. PSR ¶¶ 12-13, at 4-5. Lucero then consented to the officer searching his vehicle. See PSR ¶ 13, at 5. The female passenger “advised there was a firearm underneath her seat.” PSR ¶ 14, at 5. The PSR states that Lucero said “that the firearm was loaded and would need to be ‘cleared.'” PSR ¶ 14, at 5 ().[1] The officer found a backpack with “eight gallon-sized bags of suspected drugs, ” which tested positive on a field test for methamphetamine. PSR ¶ 15, at 5.
A federal Grand Jury indicted Lucero for “unlawfully, knowingly and intentionally possess[ing] with intent to distribute a controlled substance” involving 500 grams or more of methamphetamine. Indictment, filed November 17, 2020 (Doc. 4). Lucero was arrested on December 8, 2020. See Arrest of Lucero, filed December 8, 2020 (text only entry).
On October 1, 2021, Lucero pled guilty to knowingly and intentionally possessing at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(a). See Plea Agreement ¶ 8, at 3-4, filed October 1, 2021 (Doc. 33). In the Plea Agreement, the United States and Lucero agree to a recommended sentence of “between 120 and 135 months.” Plea Agreement ¶ 11, at 5.
In the PSR, the USPO calculates Lucero's base offense level to be 32. See PSR ¶ 26, at 6. The USPO includes a 2-level enhancement under U.S.S.G. § 2D1.1(b)(1), because Lucero possessed a dangerous weapon. See PSR ¶ 27, at 6. The USPO also classifies Lucero as a career offender, because his federal offense is a controlled substance offense, and “he has at least two prior felony convictions for crimes of violence.” PSR ¶ 32, at 7. Accordingly, the USPO determines that the “offense level for a career offender is 37 because the statutory maximum term of imprisonment is life.” PSR ¶ 32, at 7 (citing U.S.S.G. § 4B1.1(b)(1)). The USPO also provides a 2-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and a 1-level reduction for acceptance of responsibility for timely pleading guilty pursuant to U.S.S.G. § 3E1.1(b). See PSR ¶¶ 33-34, at 7. Consequently, the USPO calculates Lucero's total offense level to be 34. See PSR ¶ 43, at 12. The USPO also assesses Lucero to have a criminal history category of IV, and, because the USPO determines Lucero to be a career offender, his criminal category increases to VI. See PSR ¶ 44, at 12. Lucero's statutory mandatory minimum term of imprisonment is ten years and his maximum term is life. See PSR ¶ 72, at 17 (citing 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)). USPO advises that Lucero's Guideline imprisonment range is 262 to 327 months. See PSR ¶ 73, at 17.
On March 4, 2022, Lucero filed his Objections to the PSR. See Objections at 1. First, Lucero objects to the 2-level enhancement pursuant to U.S.S.G § 2D1.1(b)(1), because Lucero argues that he did not have actual or constructive possession of the firearm in the vehicle. See Objections at 2. Lucero argues that he did not have constructive possession of the firearm, because he did not have power or intent to exercise dominion and control over the firearm. See Objections at 2 (citing United States v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016)). Lucero argues that the firearm was located under the female passenger's seat and that the female passenger was the one who informed officers that she had a firearm under her seat. See Objections at 2-3. Moreover, Lucero argues that “there is no evidence that [the female passenger] was a co-conspirator to the drug offense.” Objections at 3. Next, Lucero argues that there is no evidence that connects the firearm, which was located under the passenger's seat, to the methamphetamine located in a backpack in the trunk of the vehicle. See Objections at 3. Lucero argues that, for the enhancement to apply, the United States must show that “‘temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.'” Objections at 3 (quoting United States v. Sallis, 533 F.3d 1218, 1225 (10th Cir. 2008)).
Second, Lucero argues that USPO should not have classified him as a career offender. See Objections at 4. Lucero does not dispute that his conviction is a controlled substance offense or that his conviction for Aggravated Battery with a Deadly Weapon constitutes a crime of violence. See Objections at 4. Lucero contends that the PSR improperly counts as a second predicate offense Lucero's Robbery conviction from July 19, 2010. See Objections at 4-5 (citing PSR ¶¶ 21, 29, at 6). Lucero concedes that New Mexico robbery is a crime of violence. See Objections at 4-5. Lucero contends, however, that:
When Mr. Lucero was first convicted on July 19, 2010, the state court imposed a three-year sentence, suspending all of it, and ultimately imposing three years of probation. Under U.S.S.G. § 4A1.2(b)(2), if part of the sentence of imprisonment is suspended, the sentence of imprisonment refers only to the portion that was not suspended. In other words, Mr. Lucero's sentence for purposes of criminal history points was a probationary sentence that otherwise would be assessed only one criminal history point under Section 4A1.1(c), except that such offenses only count for ten years from the date the sentence was imposed. U.S.S.G. § 4A1.2(e)(2). Because Mr. Lucero's offense of conviction was on October 30, 2020, more than ten years from when the sentence was imposed, the robbery conviction fell outside the applicable time-period.
Objections at 5. Lucero violated his probation conditions, and, on January 25, 2012, a State court judge revoked Lucero's probation and sentenced him to a term of imprisonment. See Objections at 5. Lucero argues: “Because the sentence the court imposed when added to the original probationary sentence does not exceed one year and one month, the conviction would otherwise be eligible for two criminal history points, but only if it fell within the applicable time period, ” and, “[b]ecause one must look back to the date of the original sentence, the conviction still falls outside of the applicable time period.” Objections at 5. Lucero argues, however, that the USPO incorrectly reads the State court order to impose a 540-day term of incarceration, which renders the offense eligible for 3 criminal history points, rendering Lucero a career offender predicate. See Objections at 6. Lucero also argues that criminal history points calculated “‘under § 4A1.2(b) are based on the sentence pronounced, not the length of time actually served.'” Objections at 6 (quoting United States v. Holbert, 285 F.3d 1257, 1263 (10th Cir. 2002)). Consequently, Lucero argues that he was sentenced to 249 days' imprisonment, which does not count for criminal history points and cannot be considered a predicate offense to render him a career offender. See Objections at 6. Because Lucero argues that the USPO should not have assigned Lucero 3 criminal history points for his robbery conviction, Lucero also argues that his proper criminal history score of 6 establishes a criminal history category of III. See Objections at 6. Lucero also requests several clarifications and corrections to the PSR. In relevant part, Lucero requests:
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