United States v. Tapia

• Decision Date: 14 December 2017
• Docket Number: No. CR 12-3012 JB,CR 12-3012 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MARC TAPIA, a/k/a Mark Anthony Russel, a/k/a, Mark Lovato, a/k/a Anthony Tapia Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. MARC TAPIA, a/k/a Mark Anthony Russel, a/k/a, Mark Lovato, a/k/a Anthony Tapia Defendant.

No. CR 12-3012 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 14, 2017

SECOND AMENDED MEMORANDUM OPINION AND ORDER¹

THIS MATTER comes before the Court on Defendant's Amended Objections to Presentence Report, Motions for Downward Variance and Departure, and Motion to Run Sentence Concurrent to State Sentence, filed August 15, 2016 (Doc. 98)("Objections"). The Court held a hearing on August 23, 2016. The primary issues are: (i) whether the Court should, under U.S.S.G. § 4A1.2(e), assess 3 criminal history points for Defendant Marc Tapia's state conviction for Aggravated Battery with a Deadly Weapon, which depends on whether the Court should count that conviction's sentence as 18 months imprisonment -- as a state court originally,but incorrectly, imposed -- or as 238 days imprisonment, as the state court originally intended and recently imposed in an amended judgment; (ii) whether Tapia's base offense level should be 20, which depends on whether Tapia has a prior felony conviction for a crime of violence; (iii) whether to assess 3 criminal history points for Tapia's prostitution- and automobile theft-related convictions, which depends on whether those offenses are relevant to Tapia's instant offense; (iv) whether Tapia's criminal category is V or VI; (v) whether the Court will grant a downward adjustment or additional custody confinement credit, which depends on whether the prostitution-and automobile theft-related offenses are relevant to Tapia's instant offense. The Court concludes that: (i) Tapia's Aggravated Battery with a Deadly Weapon conviction does not call for 3 criminal history points under U.S.S.G. § 4A1.2(e), because the Court will use the recently amended sentence -- 238 days -- and not the originally imposed 18 month sentence; (ii) Tapia's base offense level is 18 under U.S.S.G. § 2K2.1(b)(6)(B), because Tapia committed the firearm offense in connection with another felony offense; (iii) the Court assesses 3 criminal history points for Tapia's prostitution- and automobile theft-related convictions, because they are not relevant conduct to his instant offense; (iv) Tapia's criminal history score is 11, so his criminal history category is V; and (v) the Court will not grant a downward adjustment or grant additional custody confinement credit for time served on Tapia's prostitution- and automobile theft-related convictions, because the convictions are not relevant conduct to his instant offense.

FACTUAL BACKGROUND

On April 11, 2012, the Albuquerque Police Department's VICE unit, working to "apprehend females who were using the internet . . . to solicit prostitution," contacted a woman named Montana Levasseur and agreed to pay her $300.00 for sex in a hotel room. Presentence Report ¶¶ 13-14, at 5, disclosed on October 2, 2017, filed November 21, 2017 (Doc. 117)("PSR"). Levasseur arrived at the hotel room with a crate containing two small dogs. See PSR ¶ 15, at 5. Levasseur called Tapia on the telephone, and told him that "she was in the room and was safe." PSR ¶ 13, at 5. After arresting Levasseur, APD allowed Levasseur to call Tapia to tell him that she "got busted," and to ask him to come to the hotel and pick up her dogs. See PSR ¶¶ 15-16, at 5-6. Tapia agreed, and, when he arrived at the hotel in his car, APD officers ordered him to exit the vehicle, but Tapia tried to drive from the area. PSR ¶ 16, at 5-6. Tapia's car stalled, and APD officers apprehended him. See PSR ¶¶ 16-17, at 5-6. APD officers found, among other things, a pistol and ammunition in Tapia's car. See PSR ¶¶ 19-20, at 6-7.

PROCEDURAL BACKGROUND

In November, 2012, a grand jury indicted Tapia for possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Indictment at 1-2, filed November 27, 2012 (Doc. 2). Plaintiff United States of America and Tapia reached a plea agreement. See Plea Agreement, filed July 30, 2015 (Doc. 48). In the plea agreement, Tapia agrees that, "[o]n or about April 11, 2012," he "knowingly possessed a loaded Cobra, model C22, .22LR caliber Derringer" and ammunition in a car he was driving "prior to being encountered by law enforcement." Plea Agreement ¶ 6(a), at 3. Tapia also admits that "[p]rior to April of 2012, [he] previously had . . . felony convictions" in the Second Judicial District, County of Bernalillo, State of New Mexico, and in the County of Los Angeles, Superior Court of California. Plea Agreement ¶ 6(a), at 3. Tapia also waives his right to appeal any conviction, sentence, or fine "at or under the maximum statutory penalty authorized by law," but reserves the right to appeal "the sole issue of the Court's application of the definition of 'crime of violence' to his base offense level under U.S.S.G. § 2K2.1(a)." Plea Agreement ¶ 14, at 7. Tapia also agreed to waive "any collateral attack" on any conviction, sentence, or fine pursuant to 28 U.S.C.§§ 2241, 2255, "or any other extraordinary writ, except on the issue of defense counsel's ineffective assistance." Plea Agreement ¶ 14, at 7.

1. The Pre-Sentence Report.

The United States Probation Office ("USPO") disclosed its PSR on October 2, 2015. See PSR at 1. The PSR set Tapia's Base Offense Level at 20, because Tapia "committed the instant offense subsequent to sustaining at least one felony conviction for a crime of violence offense." PSR ¶ 28, at 8 (citing U.S.S.G. § 2K2.1). Although the PSR does not expressly state which crime of violence felony conviction calls for a base level of 20, the parties' briefing indicates that the felony in question is Tapia's 1997 conviction for Aggravated Battery with a Deadly Weapon. See Objections ¶ 25(I), at 18 (arguing that Tapia's Aggravated Battery with a Deadly Weapon conviction calls for 0 criminal history points such that his base offense level should not be 20); PSR ¶ 41, at 9-10 (stating that Tapia was convicted of Aggravated Battery with a Deadly Weapon for stabbing a man in the chest). The PSR adds 4 levels for Specific Offense Characteristics, because "the defendant was found in possession of a firearm and narcotics with the intent to distribute, classified as a felony." PSR ¶ 28, at 8. The PSR subtracts 2 levels, because Tapia "has clearly demonstrated acceptance of responsibility," and subtracts 1 level further, because Tapia "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 ¶¶ 35-36, at 8. Accordingly, the PSR calculates Tapia's Total Offense Level as 21. See PSR ¶ 37, at 8.

The PSR also details Tapia's criminal history, see PSR ¶¶ 40-47, at 9-14, for which the USPO assigns a criminal history score of 14, see PSR ¶ 48, at 14. In 1990, Tapia was sentenced in California Superior Court to five years imprisonment for Rape in Concern withForce/Violence, and Robbery. See PSR ¶ 40, at 9 (assigning 0 criminal history points). In 1997, the Second Judicial District Court, County of Bernalillo, State of New Mexico, sentenced Tapia to "3 years imprisonment, 18 months suspended, 18 months supervised probation," for "Aggravated Battery with a Deadly Weapon (Great Bodily Harm)." PSR ¶ 41, at 9-10 (assigning 3 criminal history points). In 1998, Tapia pled guilty in the North Judicial District Court in Orange County, California, to "Corporal Injury [of a] Cohabitant," and "Brandishing a Deadly Weapon." PSR ¶ 42, at 10 (assigning 0 criminal history points). In 2003, Bernalillo County's Second Judicial District Court sentenced Tapia to "18 months custody, 18 months suspended, 3 years supervised probation, 1 year parole," for "Possession of a Controlled Substance (4th Degree Felony)." PSR ¶ 43, at 10-11. In 2005, Bernalillo County's Second Judicial District Court again sentenced Tapia to "18 months custody, 18 months suspended, 3 years supervised probation, 1 year parole," this time for "False Imprisonment (4th Degree Felony)." PSR ¶ 44, at 11-12 (assigning 2 criminal history points). In 2012, the Bernalillo County Metropolitan Court sentenced Tapia to "73 days custody" for "Criminal Damage to Property." PSR ¶ 46, at 12-13 (assigning 2 criminal history points). In 2013, Bernalillo County's Second Judicial District Court sentenced Tapia to two and a half years imprisonment and two years of parole for "Possession of a Controlled Substance (Felony)." PSR ¶ 45, at 12 (assigning 3 criminal history points). In 2015, Bernalillo County's Second Judicial District Court sentenced Tapia to (i) "18 months custody, 1 year habitual offender enhancement, 1 year parole" for "Promoting Prostitution (Soliciting Patrons)"; (ii) "18 months custody, 1 year habitual offender enhancement, 1 year parole," for "Accepting the Earnings of a Prostitute"; (iii) "18 months custody, 1 year parole," for "Receiving or Transferring Stolen Motor Vehicle"; (iv) "18 months custody, 1 year parole," for "Possession of a Controlled Substance (Felony-Narcotic)"; and(v) "18 months custody, 1 year parole," for "Aggravated Fleeing a Law Enforcement Officer," with "said terms . . . to run consecutively, 4 years and 6 months custody suspended, the actual term to be served is 5 years custody, 1 year parole, 4 years and 6 months supervised probation." PSR ¶ 47, at 13-14 (assigning 3 criminal history points). The USPO issued an Addendum to the Presentence Report (dated January 25, 2016), filed November 21, 2017 (Doc. 118)("First Addendum"), adding Tapia's medical and employment information. See First Addendum at 1.

2. Tapia's First Objections to the PSR.

Tapia makes several legal objections to the PSR. See Objections to Presentence Report, Motions for Downward Variance and Departure, and Motion to Run Sentence Concurrent to State Sentence, filed June 6, 2016 (Doc. 88)("First Objections"). First, Tapia argues that the United States...