United States v. Gallegos
1:15-cr-02223
D.N.M.May 18, 2017Background
- On August 20, 2014, Trinidad Gallegos (a felon) possessed a loaded Mossberg 500A shotgun in his tow truck, fled police, was shot, then ran and broke into homes; he later pleaded guilty to being a felon in possession of a firearm (Count II).
- Indictment also charged assault with a deadly weapon (Count I), but that charge was dismissed and the plea agreement stipulated the government would not prove Gallegos was solely responsible for the collision with an HSI vehicle.
- The Presentence Report (PSR) recommended offense level 13 (after adjustments) and a guidelines range of 100–125 months; a plea agreement recommended 96 months.
- The United States objected to the PSR, seeking a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6) (now (b)(6)) on the ground Gallegos possessed the shotgun "in connection with" other felonies (assault, aggravated flight, and breaking and entering).
- The USPO and the government disputed whether the shotgun facilitated or emboldened those felonies; the USPO concluded it did not for the break-ins and (based on facts) for the collision, but thought flight might warrant an enhancement.
- The district court reviewed (1) whether § 2K2.1(b)(6) requires the firearm be used as an instrumentality of another offense and (2) whether the enhancement applied on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2K2.1(b)(6) requires the firearm be used as an instrumentality of another felony for the enhancement to apply | § 2K2.1(b)(6) applies even if the gun was not used as an instrumentality; possession during commission of other felonies is sufficient | Enhancement requires firearm be used as an instrumentality in committing the other felony | Court: No — enhancement does not require instrumentality; it suffices that the firearm facilitated or had the potential to facilitate (e.g., made crime easier or emboldened possessor) |
| Whether Gallegos’ shotgun possession was "in connection with" (i.e., facilitated or had potential to facilitate) the alleged assault (collision with HSI vehicle) | The assault occurred while Gallegos had the shotgun, so the firearm was connected and enhancement applies | Plea agreement, evidence shows HSI officer intentionally collided with Gallegos; government stipulated it would not prove Gallegos solely responsible | Court: Enhancement not applied — government failed to prove by preponderance Gallegos committed the assault or that the shotgun facilitated it |
| Whether possession was connected to aggravated fleeing from law enforcement | Flight occurred while he possessed the shotgun and was to avoid capture for the gun possession; enhancement warranted | No evidence the shotgun made flight easier or emboldened him; motivation irrelevant — must show facilitation/emboldenment | Court: Enhancement not applied — preponderance of evidence does not support that the shotgun made flight easier or emboldened him |
| Whether possession was connected to subsequent breaking-and-entering while fleeing | Break-ins were part of avoiding capture for illegal possession; enhancement warranted | Gallegos discarded the shotgun before entering the first house, so the gun could not have facilitated or emboldened those break-ins | Court: Enhancement not applied — shotgun was discarded before the break-ins, so no connection |
Key Cases Cited
- Smith v. United States, 508 U.S. 223 (1993) (interpreting "in relation to" and establishing facilitation standard)
- United States v. Marrufo, 661 F.3d 1204 (10th Cir.) ("facilitate" means to make easier)
- United States v. Justice, 679 F.3d 1251 (10th Cir.) (firearm may "embolden" possessor and thus facilitate another offense)
- United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998) (proximity of weapon to drugs can supply nexus for enhancement)
- United States v. Condren, 18 F.3d 1190 (5th Cir. 1994) (enhancement may be based on any felony, including possession of small drug amounts)
- United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005) (sentencing facts may be proved by preponderance post-Booker)
- United States v. Gambino-Zavala, 539 F.3d 1221 (10th Cir. 2008) (enhancement may be applied even if defendant not convicted of underlying felony)