United States v. Ortiz

• Decision Date: 14 December 2021
• Docket Number: CR 21-0280 JB
• Parties: UNITED STATES OF AMERICA Plaintiff, v. ROBERT ORTIZ, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA Plaintiff, v. ROBERT ORTIZ, Defendant.

No. CR 21-0280 JB

United States District Court, D. New Mexico

December 14, 2021

Fred J. Federici Acting United States Attorney John K. Stanford Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff

Margaret Katze Federal Public Defender John V. Butcher Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico 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 December 7, 2021 (Doc 34)(“Objections”).^[1] The primary issue is whether while engaged in carjacking, Ortiz “otherwise used” a dangerous weapon, as the United States Sentencing Guidelines (“U.S.S.G”) defines that term, to justify a 4-level sentencing enhancement under § 2B3.1(b)(2)(D), or whether Ortiz merely “brandished” a dangerous weapon pursuant to U.S.S.G. § 2B3.1(b)(2)(E), for a 3-level sentencing enhancement. The Court concludes that Ortiz “otherwise used” a dangerous weapon, justifying a 4-level enhancement under § 2B3.1(b)(2)(D). The Court therefore, overrules Ortiz' objection.

FINDINGS OF FACT

The Court takes its facts from the Presentence Investigation Report, filed November 23, 2021 (Doc. 30)(“PSR”), the Objections, the Plea Hearing, see Plea Minute Sheet, filed August 4, 2021 (Doc. 24), and the Indictment, filed March 12, 2021 (Doc. 4). The Court makes its findings 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 district court's determination of drug quantity is a factual finding that must be supported by a preponderance of the evidence and is reviewed for clear error.”). The court may rely upon reliable hearsay, so long as the evidence meets the preponderance-of-the-evidence standard. See United States v. Banda, 168 Fed.Appx. 284, 289 (10th Cir. 2006)(unpublished)^[2](stating that “there is no prohibition on considering hearsay testimony at sentencing, provided it bears indicia of reliability”). 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 November 14, 2020, in the evening, R.M. and his friend, A.M., went to Spin Cycle laundromat on Central Avenue, in Albuquerque, New Mexico.^[3] See PSR ¶ 6, at 3.

2. R.M. stayed in A.M.'s car, a white 2014 BMW 28I, while A.M. went into Spin Cycle. See PSR ¶ 6, at 3.

3. R.M. saw Ortiz “walk around the laundromat multiple times.” PSR ¶ 7, at 3.

4. Ortiz “opened the unlocked driver's side door of A.M.'s vehicle and pointed a black handgun at R.M., while demanding the keys.” PSR ¶ 7, at 3.

5. R.M. told Ortiz that he did not have the keys. See PSR ¶ 7, at 3.

6. A.M. saw Ortiz walk up to the laundromat door, which was locked. See PSR ¶ 6, at 3.

7. There were no employees at Spin Cycle at the time. See PSR ¶ 7, at 3.

8. Ortiz knocked on several of the laundromat's locked doors before A.M. met Ortiz at an unlocked door. See PSR ¶ 6, at 3.

9. Ortiz “pointed a black handgun at A.M.'s chin and demanded his keys.” PSR ¶ 6, at 3.

10. The gun Ortiz used was a BB gun. See PSR ¶ 9, at 4.

11. A.M. gave Ortiz the keys and told R.M. to get out of the car. See PSR ¶ 6, at 3.

12. Ortiz took the keys, got in the vehicle, and “fled . . . westbound on Central.” PSR ¶ 7, at 3. 13. “Neither A.M. nor R.M. were injured, ” but “they thought the suspect was going to shoot them when the handgun was pointed at them.” PSR ¶ 7, at 3.

14. On November 18, 2020, New Mexico State Police (“NMSP”) officers observed A.M.'s BMW run a red light. See PSR ¶ 8, at 3.

15. NMSP officers tried to “initiate a traffic stop; however, a vehicle pursuit ensued, registering speeds of up to 110 mph.” PSR ¶ 8, at 3-4.

16. An NMSP officer deployed “stop sticks” on the BMW on northbound Interstate 25 near Mile Post 238, but the BMW continued to travel northbound and turned onto U.S. Highway 550, “driving westbound in the eastbound lanes of travel, towards opposing traffic, almost colliding with opposing traffic.” PSR ¶ 8, at 4.

17. Ortiz disposed of the BB gun during the vehicle chase. See PSR ¶ 9, at 4.

18. The BMW finally stopped “in the median of U.S. Highway 550 and Camino Del Pueblo.” PSR ¶ 8, at 4.

19. Sandoval Sherriff's Office deputies saw Ortiz and another individual flee from the BMW on foot. See PSR ¶ 8, at 4.

20. Ortiz presented “the wallet of the BMW's registered owner, including his driving license” to a police officer. PSR ¶ 8, at 4.

21. Ortiz told the officer that the wallet belonged to him. See PSR ¶ 8, at 4.

22. The BB gun was not recovered. See PSR ¶ 10, at 4.

PROCEDURAL HISTORY

On December 10, 2020, Plaintiff United States of America filed the Criminal Complaint (Doc. 1)(“Complaint”). In the Complaint, the United States alleges that Ortiz violated 18 U.S.C. § 2119: Carjacking. See Complaint at 1. On March 12, 2021, a federal grand jury charged Ortiz with violating 18 U.S.C. § 2119: Carjacking, see Indictment at 1, and a warrant was issued for Ortiz' arrest that same day, see Arrest Warrant, filed March 12, 2021 (Doc. 5). Ortiz was arrested on April 7, 2021. See Arrest of Robert Ortiz, filed April 7, 2021 (text only entry). Ortiz pled not guilty at his arraignment on April 12, 2021, and was remanded to the custody of the United States' Marshals pending trial. See Clerk's Minute Sheet, filed April 12, 2021 (Doc. 16). On August 4, 2021, Ortiz pled guilty to Carjacking, in violation of 18 U.S.C. § 2119. See Plea Minute Sheet at 1; Indictment at 1.

1. The PSR.

The United States Probation Office (“USPO”) filed the PSR on November 23, 2021. See PSR at 1. For Ortiz' Carjacking offense, the USPO calculates that, under U.S.S.G. § 2B3.1(a), Ortiz' base offense level for Robbery is 20. See PSR ¶ 15, at 5. The USPO adds 6 levels for Specific Offense Characteristics: 4 levels pursuant to U.S.S.G. § 2B3.1(b)(2)(D), because “a dangerous weapon was otherwise used;” and 2 levels pursuant to U.S.S.G. § 2B3.1(b)(5), because “the offense involved carjacking, ” PSR ¶¶ 16-17, at 5 (quoting U.S.S.G. § 2B3.1(b)(2) and (5)). The USPO calculates an Adjusted Offense Level of 26. See PSR ¶ 21, at 5. The USPO subtracts 2 levels under U.S.S.G. § 3E1.1(a), because “[t]he defendant has clearly demonstrated acceptance of responsibility for the offense, ” and subtracts another level under U.S.S.G. § 3E1.1(b), because “[t]he defendant has assisted authorities in the investigation or prosecution of the defendant's own misconduct by timely notifying authorities of the intention to enter a plea of guilty.” PSR ¶¶ 23-24, at 5. The USPO, therefore, calculates Ortiz' Total Offense Level as 23. See PSR ¶ 25, at 5.

Next, the USPO calculates Ortiz' subtotal criminal history score of 4. See PSR ¶ 31, at 8. Under U.S.S.G. Chapter 5, Part A, a criminal history score of 4 establishes a criminal history category of III. See PSR ¶ 32, at 8. The USPO states that, under 18 U.S.C. § 2119, the statutory maximum term of imprisonment for Carjacking is 15 years, see PSR ¶ 61, at 16, and that the guideline imprisonment range for “a total offense level of 23 and a criminal history category of III” is 57 months to 71 months, PSR ¶ 62, at 16. The USPO states that the guideline range for a term of supervised release for a Class C Felony is one to three years, see PSR ¶ 65, at 16 (citing U.S.S.G. § 5D1.2(a)(2)), with a statutory maximum of three years, see PSR ¶ 64, at 16 (citing 18 U.S.C. § 3583(b)(2)). The USPO calculates that, although under 18 U.S.C. § 3561(c)(1), Ortiz is eligible for one to five years' probation for a Class C Felony, see PSR ¶ 66, at 16, and because the applicable guideline range for Ortiz' sentence is in Zone D, Ortiz is ineligible for probation according to U.S.S.G. § 5B1.1, n.2, see PSR ¶ 67, at 16. The USPO states that the maximum fine the Court could be impose is $250, 000.00 under 18 U.S.C. § 3571(b), see PSR ¶ 69, at 16, and that a special assessment of $100.00 fine is mandatory under the general provisions of 18 U.S.C. § 3013(a)(2)(A), see PSR ¶ 70, at 16. According to the USPO, the fine range for Ortiz' offense under the guidelines is between $20, 000.00 and $200, 000.00. See PSR ¶ 71, at 17 (citing U.S.S.G. § 5E1.2(c)(3)). The USPO states that restitution is mandatory under 18 U.S.C. § 3663A and under U.S.S.G. § 5E1.1, but that the victims have not yet made a request for restitution. See PSR ¶¶ 73-74, at 17. The USPO does not identify any factors that warrant a departure from the sentencing guideline range, see PSR ¶ 77, at 17, but lists several factors under 18 U.S.C. § 3553(a)(1)-(7) that “may warrant a sentence outside of the advisory guideline system, ” see PSR ¶ 78, at 17-18. The USPO calculates a guideline imprisonment range of 57 to 71 months. See PSR ¶ 78, at 19.

2. The Objections.

On December 7, 2021, Ortiz objected to the PSR. See Objections at 1. In particular, Ortiz objects to the “four (4) level enhancement pursuant to § 2B3.1(b)(2)(D)” and argues that the “correct Specific Offense Characteristic is pursuant to U.S.S.G § 2B3.1(b)(2)(E) for a three (3) level enhancement.” Objections at 1. Ortiz does not challenge...