United States v. Nieto
| Citation | 494 F.Supp.3d 1181 |
| Decision Date | 31 August 2020 |
| Docket Number | No. CR 20-0713 JB,CR 20-0713 JB |
| Parties | UNITED STATES of America, Plaintiff, v. Adrian NIETO, Defendant. |
| Court | U.S. District Court — District of New Mexico |
John C. Anderson, United States Attorney, Jon K. Stanford, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Daniel Benjamin Snyder, Assistant Federal Public Defender, Federal Public Defender's Office, Albuquerque, New Mexico, Attorney for the Defendant.
THIS MATTER comes before the Court on Defendant Nieto's Objections to Presentence Report and Sentencing Memorandum, filed June 30, 2020 (Doc. 33)("Objections"). The primary issues are: (i) whether the presentence incarceration date begins on January 29, 2020, when Defendant Adrian Nieto was arrested and charged in state court, or whether the presentence incarceration date begins on February 14, 2020, when Nieto was brought into federal custody on a writ of habeas corpus and prosequendum; (ii) whether Nieto's confinement, as described in the Presentence Investigation Report ¶ 26, at 5-6, filed June 5, 2020 (Doc. 30)("PSR"), during the time that he was in the custody of the New Mexico Children, Youth and Families Department ("CYFD") is imprisonment and thus his criminal history should be assessed accordingly; (iii) whether Nieto's confinement, as described in the PSR's ¶ 27, at 6-7, during the time that he was in the custody of the New Mexico Children, Youth and Families Department is imprisonment and thus his criminal history should be assessed accordingly; (iv) whether the criminal history score calculation of 6 points is correct, because Nieto's earlier Objections to the PSR's ¶ 26, at 5-6, and PSR's ¶ 27, at 6-7, indicate that the score should be lower; (v) whether the information in the PSR's ¶ 54, at 18, about a state court case for which Nieto was arrested should be included, because Nieto states that his GPS monitoring bracelet shows that he was not at the victim's residence at the time of the crime. The Court concludes: (i) the Bureau of Prisons ("BOP"), and not the Court, must calculate the presentence incarceration credit, but the Court will make certain that the PSR's information is accurate so that the BOP can accurately calculate Nieto's presentence credits; (ii) Nieto's confinement, as described in the PSR's ¶ 26, at 5-6, is imprisonment and thus he will receive 2 criminal history points; (iii) Nieto's confinement, as described in the PSR's ¶ 27, at 6-7, merits only 1 criminal history point, because of the amended Judgement and Disposition; (iv) the criminal history score calculation is 5 points; and (v) the Court will decide at sentencing whether information about a state court case for which Nieto was arrested should be included in the PSR's ¶ 54, at 18.
On January 29, 2020, a law enforcement officer from the Albuquerque Police Department ("APD") on patrol identified an individual sitting in a vehicle's passenger seat as Adrian Nieto, whom the officer knew had active felony warrants and a history of possessing firearms. PSR ¶ 6, at 3. The law enforcement officer began to follow Nieto without activating his emergency equipment; Nieto subsequently made several turns that indicated to the law enforcement officer that Nieto was trying to evade the law enforcement officer.
See PSR ¶ 6, at 3. The driver of Nieto's vehicle eventually stopped the car in an elementary school parking lot, and the law enforcement officer parked his car behind Nieto's vehicle and activated his emergency equipment. See PSR ¶¶ 6-7, at 3. When Nieto then exited the car, the law enforcement officer identified himself and called Nieto by his name, after which Nieto ran into the elementary school's main building. See PSR ¶ 7, at 3. Nieto continued his flight through the building into a courtyard area, then through the playground, and finally towards the school's portable classrooms. See PSR ¶ 7, at 3. The law enforcement officer "caught up to Nieto near a chain-link fence and directed him to get on the ground." PSR ¶ 7, at 3.
Nieto did not get on the ground and instead turned around, and the officer then noticed a bulge in Nieto's waistband that looked like a firearm. See PSR ¶ 7, at 3. The law enforcement officer deployed a taser that struck Nieto, who fell to the ground. See PSR ¶ 7, at 3. As the law enforcement officer moved to put Nieto in custody, Nieto advised the officer to be cautious because Nieto had a loaded handgun in his waistband. PSR ¶ 7, at 3. The law enforcement officer removed the gun, which was a Glock 19, 9 mm pistol that was fully loaded with sixteen rounds. PSR ¶ 8, at 4. In a post-arrest statement, Nieto stated that he fled, because he knew he had active warrants and that he took the handgun from the vehicle's glove compartment with him so the occupants of the vehicle would not "get into trouble." PSR ¶ 9, at 4.
The Indictment charges Nieto for "unlawfully, knowingly and intentionally possess[ing] a firearm that had moved in and otherwise affected interstate and foreign commerce, at a place that the defendant knew and had reasonable cause to believe was a school zone" in violation of 18 U.S.C. § 922 (q)(2)(A). Indictment at 1, filed February 26, 2020 (Doc. 16)(citing 18 U.S.C. § 922(q)(2)(A) ). On May 5, 2020, Nieto pled guilty to the indictment. See Clerk's Minutes at 1, filed May 11, 2020 (Doc. 28). The United States Probation Office ("USPO") filed a Presentence Investigations Report. See PSR at 1. The PSR's ¶ 15 states:
The defendant was initially charged with Assault With Intent to Commit a Violent Felony on a Peace Officer and Aggravated Assault Upon a Peace Officer With Intent to Commit a Felony in New Mexico First Judicial District Court Case No.: D-101-CR-2019-00617, and the defendant possessed the firearm in connection with these offense. The state charges were dismissed as a result of the defendant being prosecuted for the current federal charge.
PSR ¶ 15, at 5. Paragraph 16 states: PSR ¶ 16, at 5. The Court will sentence Nieto on August 31, 2020. See Notice of Hearing, filed August 20, 2010 (Doc. 38)(text-only entry).
Nieto objects to the USPO's PSR. See Objections at 1. He first objects to the PSR's statement that Nieto will have 180 days in custody by the sentencing date, because he argues that "the correct date for determining presentence incarceration credit is the date of the incident and Mr. Nieto will have been in custody 196 days at the time of sentencing for the offense of conviction." Objections at 2. Nieto next objects to the PSR's ¶ 26, at 5-6, which states that the state court sentenced him to a term of imprisonment on April 19, 2017 in case no. D-202-YR-2016-30. See Objection at 2 (citing PSR ¶ 26, at 5-6). He argues that the Judgment and Disposition shows that the state court treated Nieto as a delinquent child and, instead of committing Nieto to the Bernalillo County Juvenile Detention Center, the state court opted to transfer legal custody of Nieto to the CYFD. Objections at 2. Thus, Nieto argues, he was not ordered to a term of imprisonment, and "[a]ccordingly, pursuant to [United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines")] § 4A1.2(d)(2)(B), only 1 criminal history point shall be assessed." Objections at 2.
Nieto further objects to the characterization of the outcome of case no. D-202-JR-2019-107, in the Second Judicial District, because that case's Judgment and Disposition indicate that the court treated him as "a delinquent child and transferred legal custody of Mr. Nieto as a juvenile to the" CYFD, instead of sending to the Bernalillo County Juvenile Detention Center. Objections at 3. Further, Nieto argues, after Nieto filed a motion to modify the disposition, the court changed the disposition to a term of probation. See Objections at 3. Thus, Nieto argues, "there is no evidence that Mr. Nieto was ever ordered to a term of imprisonment in case no. D-202-JR-2019-107," and "[a]ccordingly, pursuant to U.S.S.G. Section 4A1.2(d)(2)(B), only 1 criminal history point should be assessed." Objections at 3-4. Nieto subsequently objects to a total criminal history score of 6 points, because, with his previous objections considered, "the total score should be modified to reflect four criminal history points." Objections at 4.
Nieto then objects to the arrest detailed in the PSR's ¶ 54, at 18, being included, because he states that the victim mistakenly identified him. See Objections at 4. Nieto asserts that, "if properly investigated," his GPS monitoring bracelet's location data would show that he was not at the victim's house on the day of the crime. Objections at 4. Moreover, Nieto says, he was recovering that day from a gunshot-caused fracture in his humerus bone. See Objections at 5. He further notes that the "charges were dismissed for further investigation on February 10, 2020, and have not been subsequently charged through indictment or information." Objections at 5. Nieto acknowledges that he has "no objections to the information provided as offense conduct and accepts full responsibility for his actions," and he confirms the PSR's Offender Characteristics information. Objections at 5.
Nieto then begins his argument section with an overview of his stance, arguing that any sentence beyond time served "is far more severe than necessary to achieve the sentencing aims established by Congress." Objections at 6 (citing 18 U.S.C. § 3553(a)(2) ). He further argues that he has a history of childhood mental health disorders, including post-traumatic stress disorder, depression, and attention deficit/hyperactivity disorder, and that incarceration will further traumatize him without protecting the public. See Objections at 6. Further,...
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