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United States v. Olmeda

United States Court of Appeals, Second Circuit

June 22, 2018

United States of America, Appellee,
v.
Antonio Olmeda, Defendant-Appellant.

          Submitted: February 28, 2018

         Defendant-Appellant Antonio Olmeda was sentenced to 151 months' imprisonment for various firearms offenses. He received a four-level sentence enhancement for related felony offenses that were pending in state court at the time of the federal sentencing. Olmeda argues that under U.S.S.G. § 5G1.3(c), which instructs that a federal sentence "shall . . . run concurrently" to "a state term of imprisonment [that] is anticipated to result from another offense that is relevant conduct to the instant offense of conviction," the district court erred by not ordering that his federal sentence run concurrent to any ensuing state sentence. We hold that Section 5G1.3(c) applies where state charges for relevant conduct are pending at the time of the federal sentencing. Because the district court did not ultimately address Olmeda's request for a concurrent sentence, we REMAND with instructions for the district court to vacate the sentence and resentence in a manner consistent with this opinion.

          Shane T. Stansbury and Sarah K. Eddy, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

          Antonio Olmeda, pro se, Dannemora, NY, for Defendant-Appellant.

          Before: Katzmann, Chief Judge, Leval, Circuit Judge, and Carter, District Judge. [*]

          Per Curiam

         Defendant-Appellant, Antonio Olmeda, who was convicted of multiple firearm offenses, appeals his 151-month sentence. He argues that the district court (Berman, J.) erred by not ordering that his federal sentence run concurrent to any sentence that ensued from then-pending state charges. In support, Olmeda cites U.S.S.G. § 5G1.3(c) of the Federal Sentencing Guidelines, which instructs that a federal sentence "shall be imposed to run concurrently" to "a state term of imprisonment [that] is anticipated to result from another offense that is relevant conduct to the instant offense of conviction." This Court has not addressed when "a term of imprisonment is anticipated" under Section 5G1.3(c). We now hold that Section 5G1.3(c) applies where state charges are pending-but have not yet been the subject of a trial or a guilty plea-at the time of the federal sentencing. In doing so, we do not fault the district court for not foreseeing what we hold today.

         In this case, Olmeda not only faced state charges for relevant conduct at the time of his federal sentencing, but also received a substantial federal sentencing enhancement because of those pending charges. There is no indication in the record that the district court considered Section 5G1.3(c)'s policy statement when imposing the final sentence, and, because the state charges significantly increased Olmeda's Guidelines range, we cannot be confident that the district court would have imposed the same sentence had it done so. Accordingly, we REMAND with instructions for the district court to vacate the sentence and resentence in a manner consistent with this opinion.[1]

         Background

         In December 2011, New York authorities arrested Olmeda for attempted murder, attempted assault on a police officer with a deadly weapon, attempted assault, and criminal possession of a weapon. All these charges related to an altercation with New York police officers the prior week. At the time of the arrest, Olmeda had two firearms in his possession. Later searches of his home and storage locker revealed a cache of over 20 additional firearms.

         In August 2013, while state proceedings were ongoing, a federal grand jury returned a six-count indictment against Olmeda. It charged three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and three counts of possession of unregistered firearms, in violation of 26 U.S.C. §§ 5845, 5861(d). Later that month, Olmeda was transferred to federal custody. Olmeda waived his right to counsel and pleaded guilty to the six federal counts in October 2014.

         At the federal sentencing, the government argued that Olmeda should receive a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) because he used one of the firearms in connection with another felony offense-the altercation with the New York police officers at issue in the state charges (the "relevant conduct enhancement"). Olmeda opposed that enhancement. He also asked the district court to direct that his federal sentence be served concurrently with any term of imprisonment for the pending state charges pursuant to U.S.S.G. § 5G1.3.

         In the first of five sentencing hearings, the district court initially rejected the four-level relevant conduct enhancement, explaining that the "state charges are proceeding on one path and these federal charges are proceeding on another path." D. Ct. Dkt. No. 79 at 22. Likewise, the court declined to order a concurrent sentence, explaining, "[t]here is no sentence. Indeed, there is no conviction yet in the state case. So this federal sentence stands on its own today and what happens in state court will be up to the state court." D. Ct. Dkt. No. 79 at 17-18. Under this approach, the court calculated a Guidelines range of 78 to 97 months. The government objected to the district court's decision not to apply the enhancement and requested a Fatico hearing so that it could prove the facts supporting the four-level increase.

         The Fatico hearing was held in July 2015. After the hearing, the district court concluded that the government had proven the state offenses at issue in the relevant conduct enhancement by a preponderance of the evidence. Thus, at the final sentencing hearing, which occurred in October 2015, the district court applied the associated four-level increase and calculated a Guidelines range of 121 to 151 months. The district court briefly inquired as to the status of the state proceedings and was informed that Olmeda had not yet been convicted. The district court did not revisit Olmeda's request that his federal sentence be served ...


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