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United States v. Bernal

United States District Court, D. Idaho

August 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY ALLEN BERNAL, Defendant.

          MEMORANDUM DECISION AND ORDER

          DAVID C. NYE U.S. DISTRICT COURT JUDGE

         Pending 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.

         I. BACKGROUND

         On 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.

         On 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.

         The 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.

         Bernal 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. 27)

         The 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.

         The 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 level.

         II. ANALYSIS

         A. Base Offense Level

         Section 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, ...

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