115 F. Supp. 3d 1308
D.N.M.2015Background
- Amended Objections to PSR and Sentencing Memorandum filed May 6, 2015; sentencing hearing held May 12, 2015.
- Court addressing whether § 2J1.2(b)(1)(B) applies to Ulibarri’s base offense level and whether to strike heroin arrest from PSR paragraph 70.
- USPO computed base level 14 under § 2J1.2 and applied 8-level enhancement under § 2J1.2(b)(1)(B) and a 2-level heroin base adjustment; PSR total level 23, criminal history IV.
- Plea agreement (Jan 9, 2015) includes admissions about murder-for-hire discussions and money exchange with CHS-1, implicating obstruction of justice conduct.
- Indictment and response reflect investigation of Roybal DTO; KHubris (K. Ulibarri) not charged in initial Rain Check indictment but later pled guilty to obstruction of justice and heroin distribution.
- Addendum and responses preserve that the PSR lists prior arrests and that the 14-2211 MV heroin arrest is connected to this case for purposes of criminal history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2J1.2(b)(1)(B) applies to the offense | Ulibarri argues no § 2J1.2(b)(1)(B) because no intent to obstruct. | Ulibarri contends no intent to obstruct given lack of direct evidence of a hitman. | § 2J1.2(b)(1)(B) does not apply. |
| Whether paragraph 70 in the PSR should include the heroin arrest as “Other Arrests” | Arrest tied to a different docket; not same case. | USPO maintains all prior criminal history must be included; circumstances align. | Paragraph 70 remains; objection overruled. |
Key Cases Cited
- United States v. Gordon, 710 F.3d 1124 (10th Cir. 2013) (affirming adjunct finding that § 1512(c)(2) includes intent concepts for obstruction)
- United States v. Wardell, 591 F.3d 1279 (10th Cir. 2009) (affirming interpretation of § 2J1.2(b)(1) mens rea elements)
- Elonis v. United States, 135 S. Ct. 2001 (Supreme Court 2015) (holds true threat requires intent to communicate threat; discusses mens rea in speech)
- United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) (preponderance standard for sentencing factors without changing Apprendi framework)
- United States v. Booker, 543 U.S. 220 (Supreme Court 2005) (guidelines advisory; reasonableness under § 3553(a))