United States v. Tobanche

Decision Date16 July 2015
Docket NumberNo. CR 13–2642 JB.,CR 13–2642 JB.
Citation115 F.Supp.3d 1339
Parties UNITED STATES of America, Plaintiff, v. Luis Anthony TOBANCHE, Defendant.
CourtU.S. District Court — District of New Mexico

Damon P. Martinez, United States Attorney, Charles Barth, Jon K. Stanford, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Donald Kochersberger, Business Law Southwest, LLC, Albuquerque, NM, for Defendant.


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Sentencing Memorandum, filed September 10, 2014 (Doc. 83)("Sentencing Memo."); and (ii) the Defendant's Objection to Presentence Investigation Report, filed September 10, 2014 (Doc. 82)("Objection"). The Court held a sentencing hearing on October 2, 2014. The primary issue is whether the Court should apply a 4–level increase to Defendant Luis Anthony Tobanche's base offense level under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense. The Court will apply the enhancement, because Tobanche possessed a handgun in connection with a drug-trafficking offense.


The Court takes its facts from the Presentence Investigation Report, disclosed September 2, 2014 ("PSR"), that the United States Probation Office ("USPO") prepared. On March 5, 2013, Tobanche drove himself and two others—Manuel Ruiz and Edward Chavez—in a Chevy Impala to the Sandia Casino on the Sandia Pueblo in New Mexico. See PSR ¶ 6, at 3. Tobanche parked in the parking garage and exited the Impala with Ruiz and Chavez; the three men then rummaged through the Impala's trunk for nearly seventeen minutes2 while changing their clothes and hats. See PSR ¶ 6, at 3; Addendum to the PSR at 1, disclosed on September 23, 2014 ("Addendum"). Another car pulled up and backed into a parking space a few spaces away from the Impala. See PSR ¶ 6, at 3. Tobanche, Ruiz, and Chavez began walking towards the elevators to the casino. See PSR ¶ 6, at 3. Tobanche then walked towards the driver's side of the second vehicle, and, as he got closer, someone in the second vehicle shot Tobanche in the neck. See PSR ¶ 6, at 3. Tobanche fled towards the elevators, pulled out a gun, and pointed it at the second vehicle. See PSR ¶ 6, at 3. The second vehicle fled the scene, and Tobanche, Chavez, and Ruiz got into the elevator. See PSR ¶ 7, at 3. Surveillance footage from the elevator showed Tobanche holding a silver handgun in his right hand, which he passed to Chavez. See PSR ¶ 7, at 3. Deputies from the Bernalillo County New Mexico Sheriff's Office were dispatched to the casino, and Tobanche was transported to a nearby hospital to receive treatment for his gunshot wound

. See PSR ¶ 7, at 3–4.

The deputies retrieved the silver handgun from Chavez. See PSR ¶ 8, at 4. The handgun was an American Derringer .357 magnum and held two live rounds. See PSR ¶ 8, at 4. Forensic examination showed that, although the trigger had been pulled twice and the firing pin had struck the primer of both bullets, the gun had failed to fire. See PSR ¶ 8, at 4. The deputies searched the Impala and found a black glove in the open speaker cone of a large speaker that took up most of the vehicle's back seat. See PSR ¶ 10, at 5; id. ¶ 18, at 6. The black glove contained a plastic bag that had 105.4 grams of pure methamphetamine inside it. See PSR ¶¶ 10–11, at 5. The deputies discovered a Mossberg 12–gauge shotgun 500 ATP under the Impala's hood. See PSR ¶ 10, at 5. Forensic examination identified Tobanche's palm print on the shotgun. See PSR ¶ 10, at 5. The deputies also uncovered a third gun—a .40 caliber Smith and Wesson pistol—in the Impala's trunk. See PSR ¶ 10, at 5. The deputies conducted a criminal records check on Tobanche, discovered that he was a convicted felon, and arrested him upon his release from the hospital. See PSR ¶ 7, at 4.


On August 7, 2013, Tobanche was indicted on two counts: (i) felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ; and (ii) reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and (b). See Indictment at 1–2, filed August 7, 2013 (Doc. 30). On June 9, 2014, Tobanche pled guilty to being a felon in possession of a firearm. See Plea Agreement ¶ 3, at 2, filed June 9, 2014 (Doc. 73). The USPO disclosed the PSR on September 2, 2014. See PSR at 1. Relying on U.S.S.G. § 2K2.1(a)(2), the USPO calculates a base offense level of 24 for Tobanche, because he has at least two prior felony convictions for a crime of violence or a controlled-substance offense. See PSR ¶ 17, at 6. The USPO suggests a 4–level increase under § 2K2.1(b)(6)(B), because Tobanche possessed a firearm and had 105.4 grams of pure methamphetamine within his reach while he was in the Impala. See PSR ¶ 18, at 6. The PSR then recommends a 3–level decrease under § 3E1.1 for Tobanche's timely acceptance of responsibility.See PSR ¶¶ 24–25, at 7. The PSR thus calculates Tobanche's total offense level to be 25. See PSR ¶ 26, at 7. The PSR assesses a criminal history score of 10: (i) 3 points for Tobanche's 2002 convictions for aggravated battery and aggravated assault, see PSR ¶ 32, at 9; (ii) 1 point for Tobanche's 2003 conviction for evading an officer, see PSR ¶ 33, at 9–10; (iii) 3 points for Tobanche's 2003 convictions for possession with intent to distribute cocaine, and possession with intent to distribute heroin, see PSR ¶ 34, at 10; (iv) 1 point for Tobanche's 2006 conviction for possession of cocaine, see PSR ¶ 35, at 10; (v) 1 point for Tobanche's 2009 conviction for transportation of the proceeds of illegal drug trafficking, see PSR ¶ 36, at 11–12; and (vi) 1 point for Tobanche's 2009 conviction for battery of a peace officer, see PSR ¶ 37, at 11. Tobanche's total offense level of 25 paired with a criminal-history category of V results in a Guideline imprisonment range of 100 to 125 months. See PSR ¶ 87, at 20–21. Because Tobanche's offense carries a ten-year maximum term of imprisonment, however, his Guideline range is cut off at 120 months. See PSR ¶ 72, at 18; id. ¶ 87, at 21.

1. The Sentencing Memo. and the Objection.

Tobanche filed the Sentencing Memo. on September 10, 2014. The Sentencing Memo. notes only in passing that the § 2K2.1(b)(6) enhancement is inappropriate in this case and directs the Court to the Objection for Tobanche's argument on the enhancement. See Sentencing Memo. at 3. Tobanche filed the Objection that same day, arguing that § 2K2.1(b)(6)(B) should not apply. See Objection at 1. Tobanche says that, for § 2K2.1(b)(6)(B) to apply, the United States must prove by a preponderance of the evidence that he committed a drug-trafficking offense. See Objection at 3 (citing United States v. Gomez–Arrelano, 5 F.3d 464, 466 (10th Cir.1993) ). Tobanche points out that the United States Court of Appeals for the Tenth Circuit has examined § 2K1.2(b)(6)(B) in circumstances where drug trafficking is the predicate offense. See Objection at 3 (citing United States v. Serrano, 369 Fed.Appx. 949, 953 (10th Cir.2010) (unpublished); United States v. Taylor, 413 F.3d 1146, 1154 (10th Cir.2005) ). Tobanche argues that, whether the defendants in those cases committed drug-trafficking offenses, however, "was not seriously at issue." Objection at 3. Tobanche asserts that here, by contrast, there is insufficient evidence to establish that he was involved in drug trafficking. See Objection at 5. Tobanche points out that the methamphetamine found in the vehicle was located inside a glove "which was in a compartment in the back seat." Objections at 5. Tobanche notes that there were two other people in the vehicle with him and that Ruiz, who was riding in the back seat of the Impala where the drugs were found, has a history of illegal drug convictions. See Objection at 5. Tobanche argues that there is no evidence that he was aware of the drugs, or that he sold methamphetamine to anyone before, during, or after this incident. See Objection at 5–6. Tobanche asserts that, in fact, the PSR explains that he was shot in an unrelated incident only two months before the incident in this case. See Objection at 6 (citing PSR ¶ 62, at 16). Tobanche argues that his possession of a firearm in this case is more likely related to his perceived need to protect himself rather than any involvement in drug trafficking. See Objection at 6.

Tobanche maintains that his case is similar to United States v. Gomez–Arrellano, 5 F.3d 464, 467 (10th Cir.1993). According to Tobanche, in that case, officers discovered illegal drugs, a pistol, ammunition, and drug paraphernalia in the defendant's home. See Objection at 5. Tobanche asserts that the Tenth Circuit said that § 2K2.1(b)(6)(B) does not apply when a defendant's possession of a weapon is coincidental or unrelated to the offense. See Objection at 5. Tobanche says that, because there was no indication that drug transactions had occurred in the residence, and because there was no other evidence of a nexus between the weapon and a drug offense, the Tenth Circuit held that § 2K2.1(b)(6)(B) did not apply. See Objection at 5. Tobanche argues that, "[a]s was the case in Gomez–Arrellano, here there is simply no indication that Mr. Tobanche was involved in a drug transaction." Objection at 6.

2. The United States' Responses.

The United States responded to the Sentencing Memo. on September 17, 2014. See United States' Response to Defendant's Sentencing Memorandum, filed September 17, 2014 (Doc. 85)("Sentencing Memo. Response"). In response to Tobanche's objection to the application of § 2K2.1(b)(6)(B), the United States asserts that Tobanche was in control of the Impala, which had three firearms in it—at least two of which were directly linked to him—and had 105 grams of pure methamphetamine in an open and easily accessible area. See Sentencing Memo. Response at 10. The United States adds that Tobanche rummaged around in the vehicle for several...

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