United States v. Pena
| Decision Date | 15 November 2018 |
| Docket Number | No. 2:10-cr-2138-WJ,2:10-cr-2138-WJ |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TOMMY PENA, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court following a hearing on the United States' Objections to the PSR and Sentencing Memorandum (Doc. 200, filed 6/8/18), Defendant's Sentencing Memorandum (Doc. 205, filed 7/26/18), and the United States' Objections to Addendum to Presentence Report (Doc. 214, filed 9/8/18). The Court has reviewed the parties' pleadings,1 including Defendant's Response to the Addendum to the Presentence Report and United States' Objections (Doc. 216, filed 9/26/18), as well as the reports from the United States Probation Office (Docs. 182, 190, 212). The Court has considered the arguments made by counsel and reviewed the testimony and exhibits submitted at the September 10, 2018 hearing. Upon considering this record and the applicable law, the Court grants the United States' request for an upward variance to a total sentence of thirty years in the resentencing of Defendant Tommy Pena for the reasons stated below.
Based on the series of events that transpired between April 6, 2010, and April 19, 2010, Defendant was found guilty by this Court of four counts of being a felon in possession of a firearm and/or ammunition in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) (Counts 6, 8, 14, 15), one count of conspiracy to commit carjacking in violation of 18 U.S.C. § 371 (Count 1), one count of carjacking and aiding and abetting in violation of 18 U.S.C. § 2119 and § 2 (Count 2), one count of possession of methamphetamine in violation of 21 U.S.C. § 844(a) (Count 16), and one count of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). Doc. 96, Judgment, filed 12/7/11; Doc. 71, Findings of Fact and Conclusions of Law, filed 5/13/11. At the time, Defendant was exposed to an enhanced sentence as an Armed Career Criminal. PSR, ¶¶ 63-64; Doc. 182. The Court imposed a total sentence of 480 months' imprisonment with five years' supervised release, which was within the United States Sentencing Guidelines ("Sentencing Guidelines") range under the 2010 version of the Sentencing Guidelines. Doc. 96; PSR, ¶ 104.
After the United States Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), Defendant no longer met the technical requirements of being an Armed Career Criminal, and he successfully filed a petition for resentencing under 28 U.S.C. § 2255. See Docs. 180, 181. The Court determined that Defendant would be resentenced under the 2016 United States Sentencing Guidelines, and the parties submitted extensive briefing on the advisory Sentencing Guidelines range and on the United States' request for an upward variance to a total sentence of thirty years' incarceration. There was a hearing before this Court on September 10, 2018, at whichtime counsel offered oral arguments and the United States presented the testimony of Reshay Childress of the Correctional Programs Division of the Bureau of Prisons in support of its request for an upward variance. The Court informed the parties at the hearing that it would take this matter under advisement to ensure the correct calculation of the advisory Sentencing Guidelines range. In the Memorandum Opinion and Order released on October 2, 2018, Doc. 217, the Court determined the proper advisory Sentencing Guidelines range for Defendant's resentencing is 63-78 months based on an offense level of 22 and criminal history category IV, for a total adjusted range of 123-138 months' imprisonment with the § 924(c) sixty-month mandatory minimum consecutive sentence. The Court now considers the United States' request for an upward variance to a sentence of thirty years' imprisonment.
After Defendant executed a knowing and voluntary waiver of jury trial (Docs. 53, 55), this Court conducted a bench trial on December 14 and 15, 2010. Doc. 57. Following the bench trial, the Court found Defendant guilty of Count 16 (possession of methamphetamine) and Counts 6, 8, 14, 15 (violations of § 922(g)). The Court allowed both parties to submit written arguments on Counts 1, 2, 4, 9, 10, and 12. On May 13, 2011, the Court filed the Findings of Fact and Conclusions of Law (Doc. 71) regarding four incidents underlying the charged conduct: the Lacey carjacking on April 6, 2010; the drive-by shooting on April 10, 2010; the Luna car theft on April 18, 2010; and Defendant's arrest on April 19, 2010. Doc. 71.
Defendant and his co-defendant Jeremy Conde ("Conde") were hired by Isabel Saucedo ("Chavela") to retrieve cash from the household of Arthur Lacey ("Lacey") in retribution forChavela's belief that Lacey had stolen cash from her that she was keeping in the Lacey household in Roswell, New Mexico. Doc. 71, ¶¶1-3. In the alternative to retrieving cash from the Lacey household, Pena and Conde agreed with Chavela that they could take a car that Chavela believed Lacey had purchased with the cash. ¶¶ 1-3. Chavela promised to pay Conde and Pena with an ounce of methamphetamine, which had a street value of about $1,500. ¶ 4. Chavela had supplied Collette Lacey, Arthur's wife, with methamphetamine for years. Id. Conde, Pena, and Chavela went to the Lacey home on April 6, 2010. ¶ 6. Pena carried a 9 mm handgun that was loaded; Conde carried a firearm with bullets in the clip, but not in the chamber. ¶ 7. Chavela pointed to the 2000 Cadillac Eldorado in the front yard and said, "That's the car," meaning that was the car she wanted Pena and Conde to take. ¶ 9. When Lacey answered the door, Pena pointed the gun at Lacey's face and made gestures as though he intended to shoot Lacey. ¶¶ 11-12. As Pena and Conde entered the house, Lacey fled to a neighbor's house. ¶ 14. Conde and Pena ransacked the Lacey home in the presence of Lacey's wife, Collette Lacey ("Collette"), who was nine months pregnant, and her young children. ¶ 15. Conde pointed his gun at Collette and at one of the children, and Pena's gun remained in his pocket. ¶¶ 16, 18. As Pena was leaving the house with various stolen items, Pena noticed some keys near the door. ¶ 21. He backed up, grabbed the keys to the Cadillac, and left the house. ¶ 21. Pena drove away in the Cadillac. ¶ 23.
Regarding the events that took place at the Lacey house on April 6, 2010, Defendant was charged with one count of conspiracy to commit carjacking (18 U.S.C. § 371) (Count 1), one count of carjacking and aiding and abetting (18 U.S.C. § 2119 and § 2) (Count 2), one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)(2)) (Count 6), and one count of using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (Count 4). The Court found Defendant guilty of the four counts related to the Lacey incident.
In the evening of April 10, 2010, Conde and Pena drove down East Ballard Street in Roswell and Pena fired several shots at the people on the street with a 9 mm handgun, which was the same handgun used by Pena at the Lacey carjacking. Doc. 71, ¶¶ 26-27. Conde testified that a group of people initiated the shooting, and that he was shot. Doc. 60, Tr. bench trial at 142:6-149:18. In return, both Pena and Conde fired shots at the people on the street in Roswell. Id. Conde testified that Pena shot back at the group of people by putting his arm out the window of the passenger side and shooting over the roof of the vehicle. Id. at 143:8-23. This shoot-out occurred in the grassy area in front of an apartment building in Roswell. Id. at 141:19-24. Pena was charged with one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) and § 924(a)) (Count 8), of which the Court found him guilty.
In the afternoon of April 18, 2010, Conde and Pena were leaving the house where Pena was staying at the time when they noticed Fred Luna ("Luna") drive by them. Doc. 71, ¶¶ 30-31. Conde and Pena thought Luna was "mad-dogging" them by cursing at them and giving them a "hard look," so Conde and Pena decided to borrow Pena's sister's vehicle to follow Luna. ¶¶ 31-32. Conde was armed with a loaded .22-caliber handgun and Pena was armed with a black semiautomatic handgun. ¶ 33. After Luna noticed he was being followed, he pulled into a church entrance and jumped out of his truck, leaving the door open and the ignition running. ¶ 35. The doors of the church were locked and Luna could not enter. ¶ 36. At that point, Conde and Pena pulled into the church parking lot. ¶¶ 37-38. Conde exited the vehicle and Pena stayed inside; they both pointed their guns at Luna. ¶ 38. Pena called Luna a "pussy" and told Luna that he was going to "get" Luna as he aimed his gun at Luna. ¶ 39. Luna testified that Pena had his gun "pretty close"to him when they were in front of the church, and that he could see the gun clearly. Doc. 60, Tr. bench trial at 234:13-25. Luna testified that it was a Sunday evening when he attempted to enter the church, and that he later thought there were children inside, although he was unaware of that at the time. Id. at 235:13-19.
Luna started running away to exit the church parking lot. Doc. 71, ¶ 40. Pena noticed that Luna's truck was still running and mentioned this fact to Conde; at the time of this comment, Luna was almost out of the parking lot and into the street. ¶ 41. Conde got into the truck and drove away. ¶ 42. As Conde was driving away, Luna started running back towards the truck, but after Pena urged Luna to "do it" and asked what he was going to do, Luna decided the truck was not worth being shot. ¶ 45. Conde and Pena took the truck to an abandoned house and tore out the stereo and speakers,...
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