United States v. Young, 021121 NMDC, CR 17-0694 JB

Docket NºCR 17-0694 JB
Party NameUNITED STATES OF AMERICA, Plaintiff, v. APACHE YOUNG, Defendant.
AttorneyFred J. Federici Acting United States Attorney Paul H. Spiers Kristopher N. Houghton Paul Edward Schied Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff United States of America Jennifer J. Wernersbach Law Offices of Jennifer J....
Case DateFebruary 11, 2021
CourtUnited States District Courts, 10th Circuit, District of New Mexico

UNITED STATES OF AMERICA, Plaintiff,

v.

APACHE YOUNG, Defendant.

No. CR 17-0694 JB

United States District Court, D. New Mexico

February 11, 2021

Fred J. Federici Acting United States Attorney Paul H. Spiers Kristopher N. Houghton Paul Edward Schied Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff United States of America

Jennifer J. Wernersbach Law Offices of Jennifer J. Wernersbach, P.C. Albuquerque, New Mexico --and-- Charles E. Knoblauch Charles E. Knoblauch Attorney at Law Albuquerque, New Mexico Attorneys for the Defendant Apache Young

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) the Defendant's Objections and Corrections to the Presentence Report, filed February 27, 2020 (Doc. 183)(“Objections I”); (ii) the Defendant's Objections to the Presentencing Report, filed June 21, 2019 (Doc. 204)(“Objections II”); and (iii) the Defendant's Memorandum, Opinion, and Request for Sentence Relief, filed November 16, 2020 (Doc. 247)(“Objections III”). The primary issues are: (i) whether, when Defendant Apache Young's arresting officer, Albuquerque Police Department (“APD”) Officer Harvey asked Young if he had any weapons on him, Young denied having any; (ii) whether Young's offense level calculation should increase by 2 levels under United States Sentencing Guidelines (“U.S.S.G”) § 2K2.1(b)(4), because the offense involves a stolen firearm, where Young maintains that he did not know that the firearm was stolen; (iii) whether Young received notice regarding which of his prior convictions qualify him as an Armed Career Criminal; (iv) whether Young should receive credit for acceptance of responsibility under U.S.S.G. § 3E1.1, because he conceded at trial that he possessed the firearms at issue in the offense; (v) whether Young was arrested for driving under the influence, resisting arrest, and evading a police officer on December 5, 2000, where Arrest Reports list Young's name, but court records were filed under the name Daniel Padilla; (vi) whether Young is an Armed Career Criminal; (vii) whether Young's September 7, 2004, attempted robbery offense qualifies as a violent felony under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(“ACCA”), where Young's attempted robbery offense does not receive criminal history points in the Presentence Report (“PSR”); (viii) whether the convictions associated with Young's May 4, 2009, robbery spree in Tulsa, Oklahoma, should be counted as different violent felonies under the ACCA; (ix) whether Young cannot be classified as an armed career criminal under Rehaif v. United States, 139 S.Ct. 2191 (2019)(“Rehaif”), because Young maintains that he was not aware that his previous felony convictions would be considered violent felonies under the ACCA; (x) whether the Court should reconsider its ruling, United States v. Young, 347 F.Supp.3d 747 (D.N.M. 2018)(Browning, J.), on Young's Motion to Suppress, filed May 10, 2018 (Doc. 43)(“Motion to Suppress”); (xi) whether Young's conviction at trial for the present offense is invalid because the Court did not advise Young that, if Young chose to testify, his prior nolo contendere pleas would be inadmissible at trial; (xii) whether the United States engaged in selective prosecution and prosecutorial misconduct as to Young; (xiii) whether Young should receive a new trial based on ineffective assistance of counsel; (xiv) whether the admission of Young's jail calls qualifies as entrapment; and (xv) whether Young's sentence is procedurally unreasonable. The Court concludes that: (i) because both the United States Probation Office (“USPO”) and Young agree that Young informed Officer Harvey that he had no weapons on him, the PSR need not be changed; (ii) Young is subject to a 2-level offense enhancement under U.S.S.G. § 2K2.1(b)(4), regardless whether he knew the firearm was stolen, because U.S.S.G. § 2K2.1(b)(4) does not contain a scienter requirement, as Application Note 8 affirms; (iii) the USPO provided Young with notice regarding which convictions qualify him as an Armed Career Criminal; (iv) Young does not receive credit for acceptance of responsibility under U.S.S.G. § 3E1.1, because he has not demonstrated that he accepted responsibility for possessing firearms at trial, and his prison telephone calls indicate that Young believes that he did nothing wrong; (v) the preponderance of the evidence indicates that Young was not arrested on December 5, 2000, because of inconsistencies in his Arrest Reports, missing information, and Young's recurring confusion with Daniel Padilla; (vi) Young is an Armed Career Criminal because, before the present offense, he committed five violent felonies under the ACCA; (vii) attempted robbery in New Mexico is a violent felony, because it involves the use of force, and is an enumerated offense under the ACCA's violent felony definition; (viii) the convictions associated with Young's May 4, 2009, robbery spree in Tulsa, Oklahoma, are separate offenses, because they were committed on separate occasions and occurred in different places at different times and involved different individuals; (ix) Rehaif does not prohibit Young's classification as an Armed Career Criminal, because the ACCA sentencing enhancement contains no mens rea requirement; (x) Young presents no new case law or evidence demonstrating that the Court should reconsider its previous ruling, United States v. Young, 347 F.Supp.3d 747, denying Young's Motion to Suppress, and, even when the Court reconsiders its previous ruling, it confirms the ruling; (xi) Young's conviction is valid, because the Court had no duty to advise Young that his prior nolo contendere pleas would not be admissible at trial, and Young never indicated to the Court that he was interested in testifying at trial; (xii) there is no evidence that the United States engaged in prosecutorial misconduct or selective prosecution, and Young's filings on this matter are procedurally deficient and extremely tardy; (xiii) Young's claims regarding ineffective assistance of counsel are not timely under rule 33(b)(2) of the Federal Rules of Criminal Procedure; (xiv) Young's monitored jail telephone calls are admissible evidence and do not constitute entrapment because the recordings took place after the events at issue, and Young consented to the recordings by proceeding with his phone calls after a warning that they were subject to recording; (xv) Young's argument that his sentence is procedurally unreasonable is premature, because the Court has not imposed yet a sentence; and (xii). Consequently, the Court overrules all of Young's objections except the one relating to Young's December 5, 2000, arrest, and it sustains one objection.

FACTUAL BACKGROUND

The Court takes its facts from the third Presentence Investigation Report. See Presentence Investigation Report as to Apache Young, filed December 10, 2020 (Doc. 258)(“PSR”).

1. The Criminal History.

Young was convicted of his first crime as an adult[1] on July 25, 2002, in Truth or Consequences, New Mexico. See PSR ¶ 29, at 6-7. Young shoplifted from a store and subsequently fled from police while intoxicated, without a driver's license, and while driving a stolen vehicle. See PSR ¶ 29, at 6-7. Young also hid his true name from the police and encouraged another individual to violate his terms of probation. See PSR ¶ 29, at 10-11.

Young received a fine for his second conviction in Henderson, Nevada, on June 15, 2004. See PSR ¶ 30, at 11. Young was intoxicated and refused to obey officers' commands, and the officers ultimately had to tackle Young in order to restrain him. See PSR ¶ 30, at 11.

Young's third conviction occurred on April 18, 2005. See PSR ¶ 31, at 11-12. Young attempted to rob a motel on August 21, 2004, but “the clerk could not get the cash register to open, ” and Young “got upset and slammed the cash register down on the counter.” PSR ¶ 31, at 11-12. Further, Young's plea agreement relating to this conviction “included a stipulation that the State would not renew charges against the defendant stemming from the shooting of Louis Martinez on or about August 12, 2004. No. additional information is known about the shooting incident.” PSR ¶ 31, at 12.

Young's fourth conviction took place on December 2, 2005. See PSR ¶ 32, at 12. Young fired a gun at a residence containing a baby, the baby's mother, and two adults. See PSR ¶ 32, at 12. All of the residence's occupants were “transported to the hospital for treatment of their injuries.” PSR ¶ 32, at 12. Young was convicted of three counts of aggravated battery. See PSR ¶ 32, at 12. Young again obstructed a peace officer in Henderson, Nevada, on April 15, 2006. See PSR ¶ 33, at 13.

Young's sixth conviction happened on March 11, 2010, as a result of a string of robberies in Tulsa, Oklahoma. See PSR ¶ 34, at 13-14. On April 18, 2009, [a]t 7:30 pm, the defendant, who was wearing a bandana on his face and carrying a knife, and Garcia, who was wearing a gorilla mask and carrying a sawed-off shotgun with a pistol grip, entered Cy's Bar. The defendant stabbed one of the witnesses in the leg as the two men demanded property from the customers. They got away with a wallet, a watch, cash, and an identification card.

At 7:40 pm, the defendant, who was still masked with a bandana and armed with the knife, and Garcia, who was now wearing a devil mask and still armed with the sawed-off shotgun, encountered the victim in the parking lot at Buccaneer Bar and demanded his property. They got away with the victim's keys and $112 in cash.

At 8:00 pm, the defendant, who was still masked but now armed with the sawed-off shotgun, and Garcia, who was also still masked but now armed...

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