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United States v. Dalmau

United States District Court, W.D. New York

August 1, 2017




         This case is before the Court following a Fatico hearing[1] concerning whether the Defendant “used or possessed” a Taurus nine-millimeter semiautomatic pistol “in connection with” the murder of Dustin Ortiz-Maldonado on January 5, 2014. U.S.S.G. § 2K2.1(c)(1).[2] After considering the evidence presented at the hearing, and for the reasons stated below, the Court finds by a preponderance of the evidence that the Defendant “possessed” the firearm at issue “in connection with” Ortiz-Maldonado's murder. The Court therefore concludes that the homicide cross-reference at Guideline § 2K2.1(c)(1) applies and that the Defendant's base offense level is 38, pursuant to Guideline § 2A1.2(a).


         The Defendant pled guilty to one count of possessing a firearm as an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). The Defendant's plea arose out of events that occurred late in the evening of January 5, 2014, when the Defendant and another person were stopped in a GMC Yukon shortly after Ortiz-Maldonado was shot. The firearm the Defendant pled guilty to possessing was found in a hidden compartment in the Yukon's trunk. In addition, the Yukon matched a description of a vehicle that had been seen speeding away from the scene of the shooting.

         The PSR recommends, and neither party disputes, that the relevant Guideline for the crime to which the Defendant pled guilty is found in Guideline § 2K2.1. The Defendant maintains that, pursuant to § 2K2.1(a)(6), his base offense level should be 14 because he was “a prohibited person” (that is, an unlawful user of a controlled substance) at the time of his offense. The Government and the PSR, on the other hand, recommend applying § 2K2.1(c)(1)(B). Section 2K2.1(c)(1)(B) applies if (1) a defendant “used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission of another offense”; and (2) “death resulted” from the “[]other offense.”

         If “death resulted” from the “[]other offense, ” the Guidelines recommend applying “the most analogous offense guideline from” the Guidelines for homicide, if doing so would result in an “offense level . . . greater than that” determined by § 2K2.1, which applies to certain firearms-related offenses. U.S.S.G. § 2K2.1(c)(1)(B). The PSR recommends applying the second-degree murder Guideline, which carries a base offense level of 38. See U.S.S.G. § 2A1.2(a). The Government recommends applying the first-degree murder Guideline, which carries a base offense level of 43. See Id. § 2A1.1(a).

         Because of the substantial difference between the parties' recommended base offense levels, and given the factual questions underlying that dispute, the Court held a Fatico hearing. The hearing took place over two days, during which the Court heard from six witnesses and received several pieces of evidence. The Court also considered a transcript of, and evidence introduced at, a suppression hearing held before Magistrate Judge Hugh B. Scott on June 1, 2016. See Docket No. 31.


         “[D]isputed facts relevant to sentencing, even under the Guidelines, need be established only by a preponderance of the evidence.” United States v. Concepcion, 983 F.2d 369, 388 (2d Cir. 1992). This means that a sentencing court may, in imposing sentence, rely on facts that are only “more likely than not true.” United States v. Rizzo, 349 F.3d 94, 98 (2d Cir. 2003). The preponderance-of-the-evidence standard may, of course, be satisfied with direct evidence. But as is particularly important here, the standard may also be satisfied with circumstantial evidence-even when a court makes homicide findings. See United States v. Ulbricht, 858 F.3d 71, 125 (2d Cir. 2017) (finding that district court did not err in considering “circumstantial evidence connecting . . . drug-related deaths to” defendant's criminal activity as part of “assessing the seriousness of [defendant's] crimes when [the court] considered the factors listed in 18 U.S.C. § 3553(a)”).


         1. The murder of Dustin Ortiz-Maldonado and the Defendant's arrest

         On January 5, 2014, at approximately 10:05 p.m., the Buffalo Police Department (BPD) received reports of a shooting at 132 Newfield Drive in Buffalo, New York. Gov't Ex. 21A at 1; Supp. Tr. 31:2-6.[3] Witnesses reported hearing people shouting in Spanish near a white SUV-“possibly a Yukon”-before the shooting. Gov't Ex. 21C, 132 Newfield St. Calls 7, 15, 17. When officers arrived at 132 Newfield, they discovered a body lying in the driveway. Evid. Tr. 20:2-11; Gov't Ex. 5A - 5C. The victim had been shot three times in the head and once in the shoulder. Gov't Ex. 9 at 1. The victim's driver's license identified him as Dustin Ortiz-Maldonado. Gov't Ex. 10.

         BPD officers broadcast a description of the vehicle witnesses had seen leaving the scene of the shooting. Supp. Tr. 35:5 - 36:22; Gov't Ex. 21C, Newfield St. Call 7. Approximately five minutes later, BPD Officer Dennis Gilbert, who was on routine patrol, observed a white GMC Yukon headed west on Route 33. Supp. Tr. 43:7- 47:20. Officer Gilbert began to follow the Yukon, which exited Route 33, turned around, and reentered Route 33 in the opposite direction. Supp. Tr. 45:22 - 48:25.

         Officer Gilbert followed the Yukon for six to eight minutes. Supp. Tr. 55:17-21. After patrol cars “slowed traffic dramatically” to force the Yukon off Route 33, BPD officers stopped the vehicle at 10:21 p.m., approximately sixteen minutes after witnesses first called 911 to report the shooting at 132 Newfield. Supp. Tr. 55:2-6; id. 62:19-22; Gov't Ex. 21B at 1. Officer Gilbert testified that the period of time that had elapsed between the shooting and the stop was “consistent with” the period of time it would have taken to drive from 132 Newfield to the location where the police had stopped the Yukon. Supp. Tr. 56:5-22. Officers found two people in the vehicle, both of whom they arrested: the driver, later identified as Alexander Lorenzi; and the passenger, later identified as Christian Dalmau, the Defendant in this case.

         After the Defendant was placed in a patrol car, a BPD officer “heard rustling in the back seat.” Supp. Tr. 87:9-10. An officer then “opened up the back door and . . . found some pills wrapped up in foil that were laying on the seat underneath [the Defendant].” Supp. Tr. 87:10-12. At the police ...

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