United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE U.S. DISTRICT COURT JUDGE
before the Court is Defendant Anthony Allen Bernal's
objection to the Government's Requested Sentencing
Enhancements. As outlined below, the Court finds the
Government's arguments are persuasive: Bernal's
conviction for aggravated assault under Idaho Code sections
18-901(a) and 18-905(b) constitute a crime of violence.
Accordingly, Bernal's base offense level is 24.
September 14, 2017, the Grand Jury indicted Bernal on one
count of unlawful possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Dkt. 1. On January 16, 2018, Bernal
entered a guilty plea to count one of the Indictment and the
Forfeiture as contained in the Indictment. Dkt. 19.
March 6, 2018, the United States Probation Office issued its
Initial Presentence Investigation Report (“PSR”)
recommending a base offense level of 14 and a two-point
enhancement under section 2K2.1(b)(6) of the United States
Sentencing Guidelines because the firearm involved was
stolen. Dkt. 22, at 5. Combined with three-point reductions
for accepting responsibility and timely notifying authorities
of his intention to enter a guilty plea, the Probation Office
recommended Bernal receive a total offense level of 13.
Id. at 5-6.
Government objected to the base offense level, arguing that
it should be 24 under section 2K2.1(a)(2). Dkt. 26, at 2. The
Government also argued Bernal should receive an additional
four-point enhancement under section 2K2.1(b)(6)(b) because
he possessed the firearm in connection with another felony
offense-possession of a controlled substance. Id. at
2-5. Thus, including the recommended three-point reduction,
the Government advocated for a total offense level of 27.
Id. at 5.
responded, arguing that the Court should assign a base
offense level of 20 and that it should not apply the
four-point enhancement under section 2K2.1(b)(6)(b). (Dkt.
United States Probation Office issued a revised PSR that
recommended a base offense level of 20 and recommended that
the Court decline to apply the four-point enhancement for
which the Government advocated. Dkt. 29.
Court was originally scheduled to sentence Bernal on April
30, 2018. However, unable to resolve the disputes regarding
the base offense level and four-point enhancement, the Court
continued sentencing and ordered the parties to brief the
issue. Dkt. 33. That briefing is now complete and ripe for
decision. Here, the Court addresses Bernal's base offense
Base Offense Level
2K2.1(a), which applies to the unlawful receipt, possession,
or transportation of firearms or ammunition, or prohibited
transactions involving firearms or ammunition, provides in
relevant part as follows:
(a) Base Offense Level (Apply the Greatest):
. . .
(2) 24, if the defendant committed any part
of the instant offense subsequent to sustaining at least two
felony convictions of either a crime of violence or a
controlled substance offense;
. . .
(4) 20, ...