United States v. Pacheco

• Decision Date: 08 July 2014
• Docket Number: No. CR 13-2643 JB,CR 13-2643 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DAVID PACHECO, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. DAVID PACHECO, Defendant.

No. CR 13-2643 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: July 8, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Objections to Presentence Report, filed June 6, 2014 (Doc. 116)("Objections"). The Court held a sentencing hearing on June 30, 2014. The primary issues are: (i) whether there is sufficient evidence to individually link Defendant David Pacheco to the five firearms that were located in a locked, enclosed trailer in his place of business to support a 2-level enhancement under United States Sentencing Guidelines § 2K2.1(b)(1)(A) for possessing three to seven firearms; (ii) whether the application of § 2K2.1(b)(4), relating to whether any firearms are stolen, constitutes impermissible double counting; (iii) whether there is sufficient evidence to establish that Pacheco used or possessed a firearm in connection with another offense to support a 4-level enhancement under § 2K2.1(a)(6); (iv) whether the Court should modify the Presentence Investigation Report, disclosed May 2, 2014 ("PSR"), to reflect Pacheco's factual assertion that he did not threaten his family members; and (v) whether the Court may credit Pacheco for the time that he has served in federal custody. The Court will sustain in part and overrule in part Pacheco's Objections. The Court holds: (i) because Pacheco pled guilty to possessing one of the firearms located in the green duffle bag, which contained four other firearms, he cannot credibly argue that he did nothave knowledge of and access to the additional firearms, and the Court will overrule this objection; (ii) because Pacheco's base offense level was calculated under subsection (a)(2), rather than (a)(7), the application of subsection (b)(4)(A) is not impermissible double counting, as it is the enhancement that takes into account that the firearm was stolen as part of § 2K2.1, which encompasses more than stolen firearm offenses, the Court will overrule this objection; (iii) because the firearm to which Pacheco pled guilty to possessing was located in the same proximity as 2.5 net grams of heroin, digital scales, and drug paraphernalia, there is sufficient evidence to establish that Pacheco used or possessed a firearm in connection with another felony offense, that is, the presence of the firearm had the potential of facilitating a drug trafficking offense, and the Court will overrule this objection; (iv) the Court will add one sentence in the PSR to reflect Pacheco's factual dispute, and will thus sustain in part and overrule in part his objection regarding whether he threatened a family member; and (v) because the Bureau of Prisons ("BOP"), and not the Court, has the authority to credit Pacheco with the time he has served in federal custody, the Court will overrule this objection, but will make certain all dates in custody are accurate so that the BOP can make an adequate calculation of detention.

FACTUAL BACKGROUND

In the Plea Agreement, filed February 3, 2014 (Doc. 100), Pacheco admitted the following facts:

On March 14, 2013, I possessed at my place of business located at 321 San Pedro SE, Albuquerque, New Mexico, a firearm, to wit: a Survival Arms, model AR-7 Explorer .22 caliber rifle with serial number C327864. I knew or had reasonable cause to know that the firearm had been stolen. Further, I have been made aware, and do not dispute, that the firearm was not manufactured in New Mexico, therefore any possession was in and affecting interstate commerce.

Plea Agreement ¶ 6, at 3.

PROCEDURAL BACKGROUND

On February 3, 2014, Pacheco pled guilty to an Information charging a violation of 18 U.S.C. §§ 922(j) and 924(a)(2), that being possessing a firearm knowing or having reasonable cause to believe it was stolen. See Plea Agreement ¶ 3, at 2. In the PSR, the United States Probation Office ("USPO") calculated Pacheco's base offense level at 24, pursuant to § 2K2.1(a)(2), and applied the following enhancements: (i) a 2-level enhancement pursuant to § 2K2.1(b)(1)(A) for unlawfully possessing a total of six firearms; (ii) a 2-level enhancement pursuant to § 2K2.1(b)(4), because at least one firearm was stolen; and (iii) a 4-level enhancement pursuant to § 2K2.1(b)(6), for using or possessing any firearm in connection with another felony offense. See PSR ¶¶ 24-29, at 8-10. Pacheco objects to the application of subsections (b)(1)(A), (b)(4), and (b)6). See Objections ¶¶ 2-6, at 1-3. The Court will describe these objections, with the USPO's response, in its analysis.

LAW REGARDING CONSTRUCTIVE POSSESSION OF FIREARMS

UNDER U.S.S.G. § 2K2.1(b)(1)

Under U.S.S.G. § 2K2.1(b)(1), a defendant's offense level should be increased by 2 or more levels when the "offense involved three or more firearms." U.S.S.G. § 2K2.1(b)(1). A 2-level enhancement applies when the offense involved three to seven firearms; a 4-level enhancement applies when the offense involved eight to twenty-four firearms; a 6-level enhancement applies when the offense involved twenty-five to ninety-nine firearms; an 8-level enhancement applies when the offense involved 100-199 firearms; and a 10-ten level enhancement applies when the offense involved 200 or more firearms. See U.S.S.G. § 2K2.1(b)(1)(A)-(E). The commentary to that section explains that a court should "count only those firearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfullydistributed, including any firearm that a defendant obtained or attempted to obtain by making a false statement to a licensed dealer." U.S.S.G. § 2K2.1 cmt. n.5.

"To establish possession, the government must show the defendant actually or constructively possessed the guns." United States v. Gambino-Zavala, 539 F.3d 1221, 1229 (10th Cir. 2008)(citing United States v. Houston, 364 F.3d 243, 248 (5th Cir. 2004)). Cf. United States v. Ledford, 443 F.3d 702, 713-14 (10th Cir. 2005)("'Possession' under [a federal statute prohibiting felons from possessing firearms] may be either actual or constructive."). "To prove a joint occupant constructively possessed contraband, the government merely must show the defendant had knowledge of and access to the contraband." United States v. Gambino-Zavala, 539 F.3d at 1229 (citing United States v. Ledford, 443 F.3d at 714). "'It is not necessary to show that the defendant intended to exercise . . . dominion or control, nor is it necessary to show that the defendant actually owned the weapons -- mere possession is enough.'" United States v. Gambino-Zavala, 539 F.3d at 1229 (alterations in original)(quoting United States v. Ledford, 443 F.3d at 714).

In United States v. Ruckman, 59 F. App'x 280 (10th Cir. 2003)(unpublished),¹ the UnitedStates Court of Appeals for the Tenth Circuit reviewed the district court's application of U.S.S.G. § 2K2.1(b)(1)(e), which, under a previous version of the sentencing guidelines, provided a 5-level enhancement for possessing between twenty-five and forty-nine firearms. See 59 F. App'x at 282. In affirming the district court, the Tenth Circuit stated:

[A]n individual is considered to constructively possess an item when he or she knowingly holds the power and ability to exercise dominion and control over the property. In situations involving joint occupancy, . . . more is required to establish constructive possession than dominion and control. To prove constructive possession where there is joint occupancy, the government must present direct or circumstantial evidence to show some connection or nexus individually linking defendant to the firearms. The requisite nexus is established where there is some evidence to support the plausible inference that defendant had knowledge of and access to the firearms.

59 F. App'x at 282 (citations omitted). Even though the firearms were located in the defendant's bedroom, which he shared with his wife, the Tenth Circuit concluded that the United States established the "requisite nexus between the defendant and the firearms located" in his bedroom:

One of the firearms was found under the Ruckmans' bed, next to the 7mm rifle defendant admitted possessing. The government also presented evidence that one firearm was found leaning against a dresser in the bedroom and three firearms were found hanging above the bed. Defendant was carrying the key to the locked gun safe. The locked gun safe and an unlocked gun safe contained a total of twenty firearms. Defendant's close proximity to the firearms, the open manner in which many of the firearms were stored, his possession of the key to the locked gun safe, and the proximity of the firearms to the firearm he pled guilty to possessing are more than sufficient to establish his connection to the firearms.

Defendant contends the district court failed to consider the fact that his wife also occupied the bedroom and that she subsequently bartered several of the identified firearms to pay her own legal bills. Defendant presents no evidence to support his contention that his wife's joint ownership of the firearms precludes the district court from concluding he possessed the firearms. Indeed, possession, not ownership, is the dispositive inquiry. Defendant also argues the fact that thegovernment failed to identify which safe was unlocked by the key defendant possessed undercuts the district court's finding. This point too is of no import considering defendant does not dispute that the key found on his person unlocked the only locked safe.

59 F. App'x at 282-83.

In United States v. Bertollini, No. CR 06-1348 JB, 2007 WL 5231705 (D.N.M. Aug. 20, 2007)(Browning, J.), aff'd, 286 F. App'x 582 (10th Cir. 2008)(unpublished), the defendant objected to a 4-level enhancement under § 2K2.1(b)(1)(B), for an offense involving between eight and twenty-four firearms, because the officers found seven of the nine firearms attributed to the defendant at his wife's house, and because he and his wife were separated. See 2007 WL 5231705, at...