United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
case is before the Court following a Fatico
hearing 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). 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).
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.
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
“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).
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.
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)”).
The murder of Dustin Ortiz-Maldonado and the Defendant's
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. 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.
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
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.
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 ...