United States v. Ortiz

Decision Date27 April 2020
Docket NumberNo. CR 19-2853 JB,CR 19-2853 JB
Citation457 F.Supp.3d 1129
Parties UNITED STATES of America, Plaintiff, v. Joseph Moises ORTIZ, Defendant.
CourtU.S. District Court — District of New Mexico

John C. Anderson, United States Attorney, Elisa Christine Dimas, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Amanda R. Lavin, Assistant Federal Public Defender, Federal Public Defenders Office, Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Objections to the Presentencing Investigation Report and Sentencing Memorandum, filed February 13, 2020 (Doc. 27)("Objections"). The Court held a sentencing hearing on February 19, 2020. See Clerk's Minutes at 1, filed February 19, 2020 (Doc. 31). The primary issue is whether the Court can apply a 4-level sentencing enhancement under United States Sentencing Guidelines ("U.S.S.G" or "the Guidelines") § 2K2.1(b)(6)(B), which applies when a defendant uses or possesses a firearm in connection with another felony offense, because Defendant Joseph Moises Ortiz made telephone calls to the Santa Fe Police Department in Santa Fe, New Mexico, threatening to bring his gun and shoot them. See Response by United States as to Joseph Moises Ortiz’ Objection to Presentence Investigation Report, filed February 14, 2020 (Doc. 29)("Response"). The Court sustains the Objection and concludes that the 4-level sentencing enhancement under § 2K2.1(b)(6)(B) is not applicable, because Ortiz’ possession of the firearm and ammunition was not in connection with a felony offense.

FACTUAL BACKGROUND

On August 6, 2019, Ortiz telephoned the Santa Fe County Regional Emergency Communications Center, expressing his "frustration with" the Santa Fe Police Department's investigation into his sister's death. Presentence Investigation Report ¶ 14, at 5, filed January 14, 2020 (Doc. 22)("PSR"). See id. ¶ 11, at 4. During this telephone call, Ortiz told the Santa Fe County Regional Communications Center that he would "cause chaos in Santa Fe if nothing was done about his sister's death." PSR ¶ 8, at 3. Later that day, a Santa Fe Police Department lieutenant called the number from which Ortiz’ nephew, I.V., had called, and Ortiz answered. See PSR ¶¶ 7, 9 at 3-4. Ortiz "learned that the next of kin notification was made to an aunt who was not in a proper state of mind." PSR ¶ 9, at 3-5. Ortiz told the lieutenant that "law enforcement did not care about his sister and thought she was a nobody," and so Ortiz would "start[ ] a war in Santa Fe" and "eliminate the ‘junkies’ to find out what happened to his sister." PSR ¶ 9, at 4. Ortiz also told the lieutenant that he would commit an "El Paso," "referring to a mass shooting that occurred the previous weekend in El Paso, Texas." PSR ¶ 9, at 4. On August 7, 2019, a New Mexico State Police agent made a recorded telephone call to Ortiz. See PSR ¶ 10, at 4. During this call, Ortiz "stated he was aware of who was responsible for his sister's death and claimed his threats were promises." PSR ¶ 10, at 4. On August 9, 2019, the Federal Bureau of Investigation executed a search warrant for Ortiz’ residence, which resulted in the seizure of: (i) one magazine loaded with 9mm ammunition; (ii) one 9mm pistol containing a loaded magazine; (iii) one empty box of 9mm ammunition; and (iv) sixteen rounds of 9mm ammunition. See PSR ¶ 13, at 4; Criminal Complaint ¶ 8, at 3, filed August 23, 2019 (Doc. 1). At the time, Ortiz had already been convicted of a felony offense. See PSR ¶ 14, at 5.

PROCEDURAL BACKGROUND

The Indictment charges Ortiz for knowingly possessing "a firearm and ammunition in and affecting interstate commerce" as a felon in violation of 18 U.S.C. §§ 922 (g)(1) and 924. Indictment at 1, filed August 27, 2019 (Doc. 3)(citing 18 U.S.C. §§ 922(g)(1) and 924 ). On January 14, 2020, Ortiz pled guilty to the Indictment. See Clerk's Minutes at 1, filed November 21, 2019 (Doc. 19). The United States Probation Office ("USPO") filed a Presentence Investigations Report. See PSR at 1, filed January 14, 2020 (Doc. 22). The PSR's paragraph 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 20 states: "Base Offense Level: The guideline for a violation of 18 U.S.C. § 922 (g)(1) is USSG § 2K2.1. The base offense level is 14. USSG § 2K2.1(a)(6)." PSR ¶ 20, at 6. The Court sentenced Ortiz on February 19, 2020. See Notice of Hearing, filed November 21, 2010 (Doc. 21)(text-only entry).

1. The Objections.

Ortiz objects to the USPO's PSR. See Objections at 1. Ortiz objects to the 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), because he argues that Plaintiff United States of America "cannot show that the possession of the firearm emboldened him to commit the crime of assault." Objections at 8. He asks the Court to sentence him to 12 months, below the recommended Guideline range of 21 to 27 months. See Objections at 1. Ortiz first objects to PSR ¶¶ 15 and 20, at 5-6. See Objections at 2. Paragraph 15 states that Ortiz "possessed the firearm in connection with" his state charges -- 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. PSR ¶ 15, at 5. Paragraph 20 of the PSR, which discusses Count 1: Felon in Possession of a Firearm and Ammunition, states that, for the base offense level, "[t]he guideline for a violation of 18 U.S.C. § 922(g)(1) is USSG § 2K2.1. The base level offense is 14. USSG § 2K2.1(a)(6)." PSR ¶ 20, at 6. Ortiz objects to those paragraphs, because those paragraphs are the basis for the USPO's suggested application of a 4-level enhancement to Ortiz’ base offense under U.S.S.G. § 2K2.1(b)(6)(B). See Objections at 2. Ortiz argues that, because the U.S.S.G. § 2K2.1(b)(6)(B) enhancement is applicable where a defendant uses or possesses a firearm in connection with another felony offense, the enhancement is not applicable to him, because he did not possess the firearm in connection with another felony offense. See Objections at 2 (citing U.S.S.G. § 2K2.1(b)(6)(B) ). He notes that the United States Court of Appeals for the Tenth Circuit has concluded that possession of a firearm that " ‘embolden[s] the possessor to commit the offense’ " qualifies as possession "in connection with another felony offense." Objections at 2 (quoting United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012) ).

Ortiz then argues that the PSR does not give a factual basis for the 4-level enhancement. See Objections at 2-3. He notes that his telephone call to the Santa Fe County Regional Emergency Communications Center, in which Ortiz threatened to bring a handgun and explosive to the Santa Fe Police Department and to " [b]low everyone up’ " at the Santa Fe Police Department, cannot be considered "an assault under New Mexico law because the individual who took the phone call cannot be said to have reasonably believed that a battery was imminent." Objections at 3. Moreover, Ortiz argues, the United States has not demonstrated that Ortiz possessed the firearm in connection with the assault, because the United States has not demonstrated that the firearm was in Ortiz’ proximity when Ortiz made the telephone call. See Objections at 3.

Ortiz then argues that the United States’ discovery does not give a factual basis for the 4-level enhancement, because it does not provide facts that "support a charge of assault as defined by New Mexico law." Objections at 2-3. Although Ortiz acknowledges that his statements "are arguably threats," he contends that the threat of harm "was by no means immediate," because he threatened to harm the Santa Fe Police Department only if it did not provide information within thirty-four hours regarding a family members’ death. Objections at 4. Ortiz supports his request for a 12-month sentence by applying each of the 18 U.S.C. § 3553 sentencing factors to his case. See Objections at 4-9.

2. The Response.

The United States responds. See Response at 1. The United States addresses Ortiz’ first Objection that the United States has not demonstrated that Ortiz possessed the firearm in connection with another felony offense as U.S.S.G. § 2K2.1(b)(6)(B) requires. See Response at 2. The United States argues that, for the Court to apply U.S.S.G. § 2K2.1(b)(6)(B), the United States need show only "that the firearm had the potential to facilitate the other felony offense" and not "that the firearm actually facilitated the other felony offense." Response at 2 (citing United States v. Perry, 727 F. App'x 539, 541 (10th Cir. 2018) (unpublished); United States v. Sandidge, 784 F.3d 1055 (7th Cir. 2015) ; United States v. Dodge, 61 F.3d 142, 144, 146-47 (2d Cir. 1995) cert denied., 516 U.S. 969, 116 S.Ct. 428, 133 L.Ed.2d 343 (1995) ; United States v. Hart, 324 F.3d 740 (D.C. Cir. 2003) ). Moreover, the United States argues, the Tenth Circuit has applied the U.S.S.G. § 2K2.1(b)(6)(B) enhancement in a case similar to Ortiz's case, in which the defendant who possessed the firearm previously had made threats to use it. See Response at 3 (citing United States v. Hoyle, 751 F.3d 1167 (10th Cir. 2014) ). The United States then lists undisputed facts that support that Ortiz possessed the firearm in connection with another felony offense: (i) he threatened to bring a gun to the Santa Fe Police Department to " ‘blow everyone up,’ " Response at 3 (quoting Objections at 3); (ii) he made a second telephone call to the Santa Fe...

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