2-Response by Usa

1
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

vs.

RICK REESE,
TERRI REESE, and
RYIN REESE,

Defendants.
)
)
)
)
)
)
)
)
)
)
)

No. CR 11-2294 RB

UNITED STATES OMNIBUS RESPONSE TO
DEFENDANTS SENTENCING MOTIONS AND OBJECTIONS

The United States files this omnibus response in opposition to the following four
sentencing motions and objections filed by Rick, Terri, and Ryin Reese (the Defendants):
A. Defendants J oint Objections to Pre-Sentence Reports (Doc. 477);
B. Defendant Ryin Reeses Motion for Booker Variance from Applicable Guideline Range
(Doc. 480);

C. Defendant Terri Reeses Motion for Booker Variance from Applicable Guideline Range
(Doc. 481); and

D. Defendant Rick Reeses Motion for Variance from Applicable Guideline Range (Doc.
482).

I. STATEMENT OF THE CASE
On August 24, 2011, a federal grand jury returned a 30-count indictment against Rick,
Terri, and Ryin Reese, and their co-defendant, Remington Reese. (Doc. 2). Count 1 accused all
Defendants of conspiracy to make false statements in connection with the acquisition of firearms,
and conspiracy to smuggle goods from the United States, in violation of 18 U.S.C.
Case 2:11-cr-02294-RB Document 486 Filed 09/22/14 Page 1 of 33
2

924(a)(1)(A), 554, and 371. Id. Counts 2 through 8 accused Ryin of making false statements in
connection with the acquisition of firearms, in violation of 18 U.S.C. 924(a)(1)(A). Id. Count
9 accused Rick, and Count 10 accused Terri of the same crime. Id. Counts 11 through 28 accused
each Defendant in different counts of smuggling goods from the United States, in violation of 18
U.S.C. 554. Id. Counts 29 and 30 accused all Defendants of conspiracy to launder money, in
violation of 18 U.S.C. 1956(h). Id.
The Defendants were tried by a jury beginning on J uly 17, 2012. On J uly 27, 2012, the
Defendants moved for judgment of acquittal on all counts. On J uly 31, 2012, the Court granted
the motion as to Counts 29 and 30, but denied it with respect to all other counts. On August 1,
2012, the jury found Ryin guilty of Counts 7 and 8, Rick guilty of Count 9, and Terri guilty of
Count 10. (Doc. 353). The jury acquitted the Defendants on all other counts. Id.
II. The Court Should Overrule Defendants Objections to Specific Offense Conduct

A jury verdict of acquittal on related conduct does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as that conduct has been proven by
a preponderance of the evidence. United States v. Magallanez, 408 F.3d 672, 684 (10th Cir.
2005); United States v. Watts, 519 U.S. 148, 157 (1997).
Pursuant to U.S.S.G. 1B1.3, Relevant Conduct (Factors that Determine the Guideline
Range), all Chapter Two and Chapter Three adjustments shall be determined on the basis of the
following: (1)(A) all acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendantthat occurred during the commission of
the offense of conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense. As noted through the Application Notes, The
principles and limits of sentencing accountability under this guideline are not always the same as
3

the principles and limits of criminal liability. [T]he focus is on the specific acts and omissions
for which the defendant is to be held accountable in determining the applicable guideline range,
rather than on whether the defendant is criminally liable for an offense as a principal,
accomplice, or conspirator. U.S.S.G. 1B1.3, comment. (n.1).
Specifically, an analysis of U.S.S.G. 1B1.3(a)(2) for Relevant Conduct reveals the
required prongs include: (a)(1)(A) the acts of the defendant, which include in preparation of,
during and avoiding detection of the offense of conviction; and (a)(1)(B) certain acts of others,
for the same course of conduct/common scheme or plan. Additionally, Relevant Conduct applies
if the applicable Chapter Two guideline is on the included list for grouping, under U.S.S.G.
3D1.2(d), and does not require that there are multiple counts of conviction. The guideline for 18
U.S.C. 924(a)(1)(A) offenses is found in U.S.S.G. 2K2.1, which is on the included list.
Additionally, Application Note 9 further explains the common scheme or plan offenses
must be connected to each other by at least one common factor, such as: victims, accomplices, or
purpose, or similar modus operandi, and the same course of conduct must involve similarity,
regularity and temporal proximity. U.S.S.G. 1B1.3, comment. (n.9).
Lastly, pursuant to U.S.S.G. 1B1.3(a)(1)(A), the defendant is accountable for acts he or
she committed, aided, abetted, counseled, commanded, induced, procured, and willfully caused.
As such, the entire scope of the scheme is presented in establishing the base offense level, the
specific offense characteristics, cross-references, and any other applicable adjustments.
Accordingly, this Court should overrule Objections 2, 15-17, 19, 27, and 28, which are
based primarily on the fact that the Defendants were not convicted of the conduct described in
the related sections of the Presentence Reports (PSRs). With the exception of the corrections
referenced by Doc. 483, the United States asserts that the PSRs present an accurate picture of the
4

evidence that was introduced at trial in this case.
A. Falsification of Records by Defendants
The Defendants repeatedly assert that they did not falsify records. Doc. 477 at 5, 7, 13,
and 14 (Objections 1, 7, 32, and 33). These assertions boldly ignore the fact that the Defendants
were convicted of knowingly including false information on the ATF Form 4473, stating that
the named purchaser was the actual purchaser of the firearms listed, when in fact the
Defendant[s] knew the named purchaser was purchasing the firearms on behalf of another. Doc.
353 at 4-5; App.
1
at 303-304. The Court should overrule these objections.
B. Defendants Knowledge that Firearms were Destined for Mexico
Similarly, the Defendants claim that they had no knowledge firearms sold were destined
for Mexican drug cartels. Doc. 477 at 5. The trial record proves otherwise. For instance, the
testimony of J os Alfredo Roman-J urado (Roman) specifically contradicts this claim. Roman
testified that he made the following statement during a March 31, 2010 visit to New Deal in
which he was accompanied by Yadira Roman and Penny Torres:
I told Ryin that the weapons were for me and that they were they were going to
Mexico and there there was no theres going to be no problems. If they catch
them in Mexico, everything was going is going to be okay, because everything
all the police and the people are paid off.

App. at 1260.
Rick Reeses testimony also contradicts this claim. Rick Reese admitted that on J uly 29,
2011, he told Roman, I hope my guns go to Mexico. . . . I hope they use them to shoot those
crooked mother-fucking Federales in the asshole. App. at 2607-08. Rick Reese acknowledged
that it was difficult for Mexican cartel members to get weapons legally in Mexico, and that they

1
Citations to App. refer to the Governments Appendix, which includes the entire trial transcript and was filed as
the Appellants Appendix in sixteen volumes concurrently with the United States opening brief in 10th Circuit
cause number 13-2037. The Appendix is paginated consecutively and will be provided to the Court and the parties
in DVD format.
5

could not go into an FFL in Mexico and buy AK-47 type weapons. Id. at 2642. He also
acknowledged that there was a big market for AK-47s near the border. Id. at 2642-43. During
the following exchange at trial, Rick Reese provided more evidence regarding his knowledge:
Q. So you actually were hoping that they were using your weapons in
Mexico?

A. I was hoping that the people that were being victimized would be able to
defend themselves.

Q. And one way to defend themselves was to have firearms that were
purchased in your store to help defend themselves, correct? That would
help them in that war?

A. Firearms defend people. Yes, maam.

Id. at 2711.
The trial record likewise demonstrates that Ryin and Terri Reese knew that Roman
intended to smuggle firearms to Mexico. During the recorded undercover operation on J une 15,
2011, Roman told Ryin Reese that he (Roman) wanted to resell .50 caliber rifles in Mexico. Id.
at 1386. Ryin Reese told Roman that he didnt want to know that. Id. at 1387 and 1706. Roman
told Ryin Reese, [d]ont worry. If they catch any of these rifles in Chihuahua, Ive paid the
Mexican police. Nothing is going to come back to you. Id. at 1707-08 and 1388. During the
recorded undercover operation on J uly 17, 2011, Terri Reese jokingly told Roman that the
undercover agent acting as the straw purchaser did not pass the background check. Id. at 1410
and 1785-86. Roman responded to Terri Reese: [p]lease dont tell me that. . . . Its been a long
drive all the way from Mexico all the way over here. Id. at 1410. Accordingly, Defendants
objections that are premised on a lack of knowledge that New Deal firearms were destined for
Mexico (Objections 1, 5, 26, 28, 30, 33, and Objections to Enhancements 2 and 4) should be
overruled.
6

C. Defendants Knowledge of Straw Purchases
Despite abundant evidence to the contrary, the Defendants claim repeatedly that they
were unaware that Roman used straw purchasers to obtain firearms. Doc. 477 at 6, 7-15, and 17
(Objections 3, 5, 8-9, 11, 13, 18, 20, 21, 23, and 33-34). The trial record squarely refutes these
contentions. Romans testimony regarding a particular straw purchase in April of 2010 provides
one example. Roman testified that he took Penny Torres to New Deal. App. at 1278-80. While
there, Roman spoke to both Ryin and Remington Reese. Id. at 1267. Roman told them that he
was back to buy rifles, AK-47s, to take them to Mexico, because he needed them to fight with
El Chapo. Roman bought five rifles that day, and ordered several more. Id. at 1268-69. Ryin
and Remington Reese showed Roman many rifles, but Roman told them, No, I just need to take
AK-47s, because thats the ones that we use in Mexico. Id. at 1270. Roman gave Penny Torres
cash from La Linea to pay for the rifles, and Penny filled out the paperwork. Id. Ryin and
Remington Reese gave Roman the receipt. Id. at 1269.
Romans testimony regarding a straw purchase by Armando Torres is another example.
Roman testified that he took Armando Torres to New Deal, and bought two handguns that Ryin
Reese had set aside for Roman when Roman had been in the store earlier. App. at 1289-90.
Roman had called his associate at La Linea while in Ryins presence to see if La Linea wanted
the handguns. Id. Roman told Ryin that he was going to take the handguns to Mexico to see if
they wanted more of them. Id. at 1290.
Penny Torres also testified that she made straw purchases on behalf of Roman. App. at
1949-52. Consistent with Roman, Penny Torres testified that she had been to New Deal along
with Roman and Yadira. Id. at 1950. Despite her lack of familiarity with firearms, and her
reference to rifles as long guns, Penny Torres was able to complete straw purchases of firearms
7

on behalf of Roman on several occasions, including a purchase of ten AK-47 type rifles on J une
30, 2010. App. at 1959-62.
Additionally, the recorded undercover operations provide irrefutable evidence that the
Defendants knew Roman used straw purchasers to obtain New Deal firearms. On May 27, 2011,
Roman discussed firearms prices with Ryin Reese and paid for four AK-47 type rifles, while the
undercover agent completed the Form 4473. App. at 1377-79; 1688-99; 1768. On J une 15, 2011,
Roman again paid Ryin Reese cash for a rifle while an undercover agent completed the Form
4473. Id. at 1383-84; 1395-96; 1704-05; 1715-18; 1768. Ryin Reese was convicted for his role in
this straw purchase. On J uly 7, 2011, Roman again selected the firearms while the female
undercover agent was standing away and disengaged from the purchase. Id. at 1405-07. After
doing so, Roman said shes going to pay, and handed $6000 to the undercover agent. Id. at
1409; 1780-81; 1810. The undercover agent then gave the cash to Ryin Reese, completed the
Form 4473 with Ryin Reeses assistance, and signed and dated the Form 4473 at Terri Reeses
direction. Id. at 17881-83; 1786; 1793-94; 3290-3295. Ryin Reese was convicted for his role in
this straw purchase.
Finally, on J uly 29, 2011, Roman went to New Deal with a different female undercover
agent. Id. at 1412-13; 1842. After the undercover agent indicated that the pair would purchase
Whatever he wants, referring to Roman, Terri Reese responded Whatever you want,
referring to the agent. Id. at 1845-46. Rick Reese assisted Roman in selecting firearms and
negotiated the price with Roman. Id. at 1420 and 1860. Once Roman had decided which
weapons to buy, he told Rick, Shes going to pay, referring to the agent. Id. at 1849-50. The
agent testified that Roman then took the money out of his pocket and gestured [in] my direction,
looking at [Rick], and [Rick] nodded his head to the right, which would be my direction, and Mr.
8

Roman handed me the money. Id. at 1850. The agent then handed the money to Rick. Id. at
1855. Rick then said, Well have the young lady fill out the paperwork, and he guided the
agent to a computer to fill out the paperwork. Id. at 1852-53. After the agent filled out her
portion of the form, she gave her drivers license to Terri, who then did something on the
computer. Id. at 1853-54. Terri said to Roman, Now, we have to see if shes a felon. Id. at
1854. Roman laughed and asked the agent whether she was a felon, and the agent said no. Id.
When Terri was done, she put the form in front of the agent and asked her to sign it. Id. at 1854-
55. Terri did not ask the agent whether she was the true purchaser, nor did she provide any other
explanation of the form before the agent signed it. Id. at 1855. Rick and Terri Reese were
convicted for their roles in this straw purchase. The trial record clearly indicates that this Court
should overrule Objections 3, 5, 8-9, 11, 13, 18, 20, 21, 23, and 33-34.
D. Defendants Knowledge of Romans Cartel Ties
Again disregarding the trial record, the Defendants profess a lack of knowledge that
Roman was working for the La Linea cartel. Doc. 477 at 6. In fact, the evidence shows that
Roman made statements to the Defendants regarding his cartel ties. During the recorded
operation on May 19, 2011, Roman said Chapo is taking over, and discussed .50 caliber
ammunition with Ryin Reese, stating that he needed to take it to Mexico to see if we can win
the war between El Chapo and La Linea. App. at 1360-61. During the recorded operation on
J uly 29, 2011, Roman told Rick Reese that the people from Mexico wanted Roman to spend
$24,000 on New Deal firearms. Id. at 3507. Roman also testified that he used Penny Torres to
purchase five rifles in April of 2010 and told Ryin Reese he needed them to fight with El Chapo.
Id. at 1268-69. The Court should overrule Objection 6 and Objection to Enhancement 2.

9

III. The Court Should Overrule Defendants Objections to the Sentencing
Enhancements

The pre-sentence report determined that the Defendants base offense level was 12
pursuant to U.S.S.G. 2K2.1(a)(7). With respect to specific offense characteristics, Defendants
received a six-level increase under U.S.S.G. 2K2.1(b)(1)(C) because they were held
responsible for 35 firearms. The Defendants each received two additional four-level increases,
for engaging in the trafficking of firearms, pursuant to U.S.S.G. 2K2.1(b)(5), and for
transferring firearms in connection with the felony offense of unlawful exportation of firearms,
pursuant to U.S.S.G. 2K2.1(b)(6).
Ryin Reese was assessed a total offense level of 26. Based upon a total offense level of
26 and a Criminal History Category of I, the guideline imprisonment range for Ryin Reese is 63
to 78 months. However, the statutory maximum is 60 months, pursuant to U.S.S.G. 5G1.1.
Therefore, the guideline sentence is 60 months.
Defendants Terri and Rick Reese each received an additional two-level increase for
obstruction of justice pursuant to U.S.S.G. 3C1.1. This resulted in a total offense level of 28 for
both Terri and Rick Reese. As such, the guideline imprisonment range for both Terri and Rick
Reese is 78 to 97 months, based on a total offense level of 28 and a Criminal History Category of
I. However, the statutory maximum is 60 months, pursuant to U.S.S.G. 5G1.1. Therefore, the
guideline sentence for Terri and Rick Reese is 60 months.
A. Number of Firearms

The Defendants object to the six-level enhancement imposed pursuant to U.S.S.G.
2K2.1(b)(1)(C) based on the number of firearms involved in the offense. According to the
Defendants, the counts of conviction involved only 7 firearms. (Doc. 477 at 15). However,
there is ample evidence in the record to sustain an enhancement under U.S.S.G.
10

2K2.1(b)(1)(C).
As mentioned above, the Sentencing Guidelines provide that all relevant conduct should
be taken into account at sentencing, including all acts and omissions committed, aided,
abetted induced, procured, or willfully caused by the defendant which occurred during the
commission of the offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense. U.S.S.G. 1B1.3(a)(1).
Furthermore, the Court may consider facts underlying acquitted conduct as relevant conduct for
sentencing purposes so long as the conduct is proven by a preponderance of the evidence. See
Magallanez, 408 F.3d at 684; Watts, 519 U.S. at 157.
Pursuant to this section, the Defendants are responsible for both the acts in which they
were directly involved, which includes 39 firearms
2
that were purchased from New Deal by
Penny Torres, Roman and undercover agents.
Evidence presented at trial demonstrated that between March 31, 2010, and August 25,
2010, Roman utilized Penny Torres as a straw-purchaser of firearms. During this time, the
following firearms were listed as purchased by Penny Torres:
No. Firearms Date Brand/Model Caliber Serial Number
1 March 31, 2010 Romanian WASR-10 7.62x39 Rifle 1975FL3671
2 March 31, 2010 Yugo M-70 7.62x39 Rifle M70AB29123
6 J une 30, 2010 Yugo M-70 7.62x39 Rifle AB2T-N101949

2
The PSR notes that the Defendants are responsible for 35 firearms, however, a closer review of the PSR and the
trial record shows that a total of 39 firearms were involved in the offense conduct.
11

16 August 21, 2010 Yugo M-70 7.62x39 Rifle M70AB26515
17 August 25, 2010 Century Arms Int Draco Pistol DR-2693-09
18 August 25, 2010 Century Arms Int Draco Pistol DC-2238-10
23 August 25, 2010 Century Arms Int Draco Pistol DR-9836-10

During the undercover operation on May 19, 2011, Roman, utilizing an undercover agent
as a straw-purchaser, purchased the following firearms:
No. Firearms Brand/Model Caliber Serial Number
24 Olympic Arms, model Plinkster 5.56 (.223) caliber CH3934
25 Bushmaster, model XM-15-E215 5.56 (.223) caliber BF1679917
26 Olympic Arms, model Plinkster 5.56 (.223) caliber CH3935
27 Century Arms Inc., model GP
1975 Sporter
.62 x 39 caliber rifle Z002238
28 TA1 Arms, model 75 Sporter .62 x 39 caliber rifle,
semiautomatic rifle
AO-0304-82

On May 27, 2011, during the undercover operation, Roman, utilizing an undercover agent
29 Romarm1Cugir, model GP
WASR-IO/63
7.62x39 caliber rifle 1988-ACV0203
WASR-IO/63
7.62x39 caliber rifle 1984-5856
WASR-IO/63
7.62x39 caliber rifle 1983-NR6591
32 Century Arms Inc., modelM70
AB2
7.62x39 caliber rifle AB206262

During the undercover operation on J une 15, 2011, Roman, utilizing an undercover agent
33 Barrett, model 99 .50 caliber rifle D6998
12

On J uly 7, 2011, during the undercover operation, Roman, utilizing an undercover agent
WASR-IO/63
7.62x39 caliber rifle I 940-BT1 65 I
WASR-IO/63
7.62x39 caliber rifle I 974-DT2396
36 Barrett, model 99 .50 caliber rifle, bolt
action rifle
D7199

Finally, during the last undercover operation on J uly 29, 2011, Roman, utilizing an
undercover agent as a straw-purchaser, purchased the following firearms:
37 American Tactical Imports,
model C92
9mm pistol T0624-09
TE02S499
38 Barrett, model 99 9mm pistol M9-126867
39 Roman/Cugir, Draco 7.62x39 caliber pistol DC-S1S7-1O
RO

As the Court is well aware, during the course of the trial, the government introduced the
evidence of the above-mentioned 39 firearms, all of which were charged in the indictment. The
evidence included testimony of Penny Torres, Roman and the undercover agents as well as video
and audio surveillance demonstrating well beyond a preponderance of the evidence that the
Defendants conduct resulted in the illegal purchase of the 39 firearms. Therefore, the six-level
enhancement to the Defendants base offense level pursuant to U.S.S.G. 2K2.1(b)(1)(C) should
be applied because the offense involved between 25 and 99 firearms.
B. Trafficking of Firearms

The Defendants next argument is that the PSR improperly enhanced their sentence under
U.S.S.G. 2K2.1(b)(5). That Guideline applies to any defendant who transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would be used or possessed in
13

connection with another felony offense. Id.
Specifically, U.S.S.G. 2K2.1(b)(5) provides that [i]f the defendant engaged in the
trafficking of firearms, a four-level increase in the offense level is warranted. The application
note explains that this enhancement applies if the defendant:
(i) Transported, transferred, or otherwise disposed of two or more firearms to another
individual, or received two or more firearms with the intent to transport, transfer,
or otherwise dispose of firearms to another individual; and

(ii) Knew or had reason to believe that such conduct would result in the transport,
transfer, or disposal of a firearm to an individual

(I) Whose possession or receipt of firearm would be unlawful; or
(II) Who intended to use or dispose of the firearm unlawfully.

2K2.1 comment. (n.13(A)). The term defendant, consistent with 1B1.3 (Relevant
Conduct), limits the accountability of the defendant to the defendants own conduct and conduct
that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully
caused. Id., comment. (n.13(B)).
The Defendants assert that there is no evidence that they knew Roman-J uardo was
working for La Linea and smuggling firearms to Mexico. (Doc. 477 at 15). Here, there is
considerable evidence from which the district court could infer that [Defendants] knew or had
reason to believe that [their] conduct would result in the transport, transfer, or disposal of []
firearm[s] to an individual Roman and undercover agents who intended to use or dispose of
the firearm[s] unlawfully. See United States v. Juarez, 626 F.3d 246, 252 (5th Cir. 2010).
In assessing a defendants mental state for the purpose of sentencing, a court may draw
common-sense inferences from the circumstantial evidence. United States v. Garcia, 635 F.3d
472 (10th Cir. 2011) (quoting United States v. Juarez, 626 F.3d 246, 256 (5th Cir. 2010)). It is
also important to note that at sentencing, the government must prove facts supporting a
14

sentencing enhancement by a preponderance of the evidence. Garcia, 635 F.3d at 478; United
States v. Gambino-Zavala, 529 F.3d 1221, 1228 (10th Cir. 2008).
In United States v. Garcia, the Tenth circuit noted that the government presented
evidence at sentencing that Garcia had purchased or attempted to purchase nineteen firearms, all
of which are types of weapon Mexican drug cartels actively seek in the United States. Garcia,
635 F.3d at 479. Additionally, some of the firearms were found in Mexico and seized from
Mexican cartel members. Id. An agent further testified on behalf of the government stating that
in his experience, straw purchasers [like Garcia] were generally aware that firearms they
purchased were intended to be used illegally. Id. Accordingly, the Tenth Circuit concluded that
the Garcia knew or had reason to believe that the firearms she purchased and passed on were
intended to be used illegally.
In this case, the Defendants made false statements and representations in that they
executed ATF Forms 4473 (Firearms Transaction Records), representing that the individual
executing each form was the actual purchaser of the firearms, when in fact that individual was
buying the firearms for others associated with a cartel. The Defendants also knew that these
firearms are predominately sought and used by drug trafficking organizations in Mexico.
As stated above in sub-section (B), the testimony of Roman demonstrates that the
Defendants knew the firearms were destined for cartel members in Mexico. Additionally, Rick
Reese admitted that on J uly 29, 2011, he told Roman, I hope my guns go to Mexico. . . . I hope
they use them to shoot those crooked mother-fucking Federales in the asshole. App. at 2607-
08. Rick Reese acknowledged that it was difficult for Mexican cartel members to get weapons
legally in Mexico, and that they could not go into an FFL in Mexico and buy AK-47 type
weapons. Id. at 2642. He also acknowledged that there was a big market for AK-47s near
15

the border. Id. at 2642-43.
The trial record likewise demonstrates that Ryin and Terri Reese knew that Roman
worked for the cartel by smuggling firearms into Mexico. During the recorded undercover
operation on J une 15, 2011, Roman told Ryin Reese that he (Roman) wanted to resell .50 caliber
rifles in Mexico. Id. at 1386. Ryin Reese told Roman that he didnt want to know that. Id. at
1387 and 1706. Roman told Ryin Reese, [d]ont worry. If they catch any of these rifles in
Chihuahua, Ive paid the Mexican police. Nothing is going to come back to you. Id. at 1707-08
and 1388. During the recorded undercover operation on J uly 17, 2011, Terri Reese jokingly told
Roman that the undercover agent acting as the straw purchaser did not pass the background
check. Id. at 1410 and 1785-86. Roman responded to Terri Reese: [p]lease dont tell me that. . .
Its been a long drive all the way from Mexico all the way over here. Id. at 1410.
Accordingly, there is plenty of evidence to suggest that the Defendants had reason to
believe that at least one of the firearms they sold to Roman and the undercover agents would be
used to commit a felony.
C. Use or Possession of Firearms or Ammunition in Connection with Another Felony
(Exporting Firearms)

The Defendants object to the four-level enhancement pursuant to U.S.S.G. 2K2.1(b)(6)
for exporting firearms and ammunition. They argue that as a federally licensed firearms dealer,
they are not liable for the conduct of illegally transportation or smuggling of firearms in Mexico,
and only the person who actually exports or traffics the firearms across the border is culpable.
Again, the Defendants are mistaken.
Section 2K2.1(b)(6) provides a four-level enhancement to a defendants base offense
level for a sentence under U.S.S.G. 2K2.1 if the defendant used or possessed any firearm or
ammunition in connection with another felony offense. U.S.S.G. 2K2.1(b)(6). Application
16

note 14 to U.S.S.G. 2K2.1 specifies that the use or possession is in connection with a
different felony if the firearm or ammunition facilitated, or had the potential of facilitating,
another felony offense. U.S.S.G. 2K2.1, comment. (n.14(A)). The plain and commonly
understood meaning of facilitate is to make easier. United States v. Marrufo, 661 F.3d 1204,
1207 (10th Cir. 2011) (citing United States v. Gandy, 36 F.3d 912, 914 (10th Cir. 1994)
(recognizing that facilitate means to make easier); Blacks Law Dictionary 668 (9th ed.
2009) (defining facilitate as [t]o make the commission of a crime easier)).
The Tenth Circuit has held that an enhancement under U.S.S.G. 2K2.1(b)(6) may be
applied even though the felony in connection with which the firearm is possessed was not an
offense for which the defendant was convicted. See United States v. Gambino-Zavala, 539 F.3d
1221, 1230 n.3 (10th Cir. 2008); see also U.S.S.G. 1B1.3(a)(2) (uncharged conduct may be
considered in determining specific offense characteristics (such as those covered by
2K2.1(b)(5)), when such conduct is part of the same course of conduct or common scheme or
plan as the offense of conviction).
In United States v. Juarez, 626 F.3d 246, 250-51 (5th Cir. 2010), the Fifth Circuit upheld
the district courts application of both U.S.S.G. 2K2.1(b)(5) and 2K2.1(b)(6) enhancements
where evidence was presented that showed:
J uarez purchased over two dozen weapons, the majority of which were military-
style assault rifles, for a man that she knew only as El Mano. Many of these
purchases were repetitive in one one-month period, for example, J uarez
purchased the same model of firearm six different times. In every transaction with
El Mano, she delivered the weapons to Roma, Texas, a town located just one
mile from the border between Mexico and the United States, in some instances
after transporting them from a gun store in McAllen, Texas, thirty-seven miles
from Roma.

Juarez, 626 F.3d at 255. The Fifth Circuit noted that the district court had also cited the
violence across the border between Texas and Mexico as reason for J uarez to believe that the
17

assault-type weapons she illegally purchased were intended to be transported the very short
distance separating Roma from Mexico. Id. As such, the Fifth Circuit held that [t]hese facts,
considered as a whole, support the district courts conclusion that J uarez transferred a firearm
with knowledge or reason to believe that it would be smuggled into Mexico. Id.
Here, based on the testimony presented at trial, the Court could reasonably infer from all
of the circumstances surrounding New Deals sales to Penny Torres, Roman and the undercover
agents that the Defendants transferred at least one of those thirty-five weapons with a reason to
believe that it would be illegally smuggled into Mexico. See Juarez, 626 F.3d at 255-55.
During the recorded operation on May 19, 2011, Roman said Chapo is taking over, and
discussed .50 caliber ammunition with Ryin Reese, stating that he needed to take it to Mexico to
see if we can win the war between El Chapo and La Linea. App. at 1360-61. During the
recorded operation on J uly 29, 2011, Roman told Rick Reese that the people from Mexico
wanted Roman to spend $24,000 on New Deal firearms. Id. at 3507. Roman also testified that he
used Penny Torres to purchase five rifles in April of 2010 and told Ryin Reese he needed them to
fight with El Chapo. Id. at 1268-69.
Additionally, Roman testified with respect to a particular straw purchase in April of 2010
that he took Penny Torres to New Deal. App. at 1278-80. While there, Roman spoke to both
Ryin and Remington Reese. Id. at 1267. Roman told them that he was back to buy rifles, AK-
47s, to take them to Mexico, because he needed them to fight with El Chapo. Roman bought
five rifles that day, and ordered several more. Id. at 1268-69. Ryin and Remington Reese
showed Roman many rifles, but Roman told them, No, I just need to take AK-47s, because
thats the ones that we use in Mexico. Id. at 1270. Roman gave Penny Torres cash from La
Linea to pay for the rifles, and Penny filled out the paperwork. Id. Ryin and Remington Reese
18

gave Roman the receipt. Id. at 1269.
Roman went back to New Deal with the undercover agent on J une 15, 2011. Id. at 1379
and 1702. Ryin showed Roman the .50 caliber rifle that Roman had ordered. Id. at 1381 and
1703. Roman told Ryin it was too big to take to Mexico. Id. at 1381-82; see also id. at 1703-04.
Roman had to hide the rifles he bought in his truck, and this rifle would have to be taken apart to
fit in his truck. Id. at 1382. Roman talked to both Ryin and Remington about taking the rifle
apart. Id. at 1383.
As Roman discussed the price of the .50 caliber rifles and ammunition with Ryin, Roman
told Ryin he wanted to resell them in Mexico. Id. at 1386. Ryin told Roman that he didnt want
to know that. Id. at 1387 and 1706. Roman told Ryin, Dont worry. If they catch any of these
rifles in Chihuahua, Ive paid the Mexican police. Nothing is going to come back to you. Id. at
1707-08, see also id. at 1388. Roman paid Ryin cash he had received from the government for
the rifle. Id. at 1383-84, 1395, and 1704-05, 1768. Agent Ramirez filled out the paperwork. Id. at
1396 and 1715-18. All this adds up to damning evidence that Ryin knew Roman was the actual
buyer of that .50caliber rifle, which was destined for Mexico, yet helped Agent Ramirez state
otherwise on Form 4473.
On J uly 29, 2011, Roman went to New Deal a final time with a single female undercover
agent HSI Special Agent Kelley Wigley. Id. at 1412-13 and 1842. Terri greeted them, and
asked if she could help them. Id. at 1845-46. Agent Wigley replied, Whatever he wants, and
pointed at Roman. Id. at 1846. Terri responded, Whatever you want. Id.
Roman told Rick that people in Mexico wanted him, Roman, to spend $24,000 to
$25,000 on guns and ammunition, and that he wanted to do[] business like always, meaning
that someone else would fill out the paperwork. See id. at 1415-17. Rick assisted Roman in
19

purchasing the guns and ammunition. See id. at 1420. Roman selected the weapons and
negotiated their price. Id. at 1860. When Roman had decided which weapons to buy, he told
Rick, Shes going to pay, referring to Agent Wigley. Id. at 1849-50. Agent Wigley testified
that Roman then took the money out of his pocket and gestured [in] my direction, looking at
[Rick], and [Rick] nodded his head to the right, which would be my direction, and Mr. Roman
handed me the money. Id. at 1850. Agent Wigley then handed the money to Rick. Id. at 1855.
Rick said, Well have the young lady fill out the paperwork, and he guided Agent
Wigley to a computer to fill out the paperwork. Id. at 1852-53. After Agent Wigley filled out
her portion of the form, she gave her drivers license to Terri, who then did something on the
computer. Id. at 1853-54. Terri said to Roman, Now, we have to see if shes a felon. Id. at
1854. Roman laughed and asked Agent Wigley whether she was a felon, and she said no. Id.
When Terri was done, she put the form in front of Agent Wigley and asked her to sign it. Id. at
1854-55. Terri did not ask Agent Wigley whether she was the true purchaser, nor did she
provide any other explanation of the form before Agent Wigley signed it. Id. at 1855.
Roman and Agent Wigley also purchased ammunition that day. See id. at 1860-61.
Roman chose the ammunition and negotiated the price with Rick. See id. at 1861-64. Agent
Wigley paid for the ammunition with money Roman had given her. Id. at 1862. Rick and
Roman emptied the ammunition into a black bag. See Id. at 1419 and 1864. Rick peeled off an
orange tag on one of the boxes and commented that an officer had approached him and said that
they found some ammunition in the Columbus deal
3
with his orange tags all over it. Id. at 1864,
1866. He also said that removing the tags would make it harder to trace. Id. at 1866. Rick
helped Roman and Agent Wigley carry their purchases to Romans car. Id. at 1868-69.

3
Another investigation in the nearby town of Columbus, New Mexico, had resulted in the indictment of several
town officials for firearms violations. See App. at 1873.
20

By selling the firearms to Ramon and the undercover agents, whom they knew to be
straw purchasers, the Defendants transferred the firearms with knowledge or reason to believe
that the firearms would be used to commit another felony offense the illegal transportation or
smuggling of firearms into Mexico. See Juarez, 626 F.3d at 255. Thus, the Defendants were
properly enhanced four-levels pursuant to U.S.S.G. 2K2.1(b)(6).
Additionally, ATF Special Agent Richard Byrd testified that he traced five weapons
found in Mexico four AK-47 type rifles and a semiautomatic pistol to New Deal. See id. at
2009-19. According to the 4473 forms, New Deal transferred all five of the firearms to Penny
Torres: three on J uly 8, 2010, one on August 21, 2010, and one on August 25, 2010. See id.
Terri acknowledged that on August 27, 2010, she received an ATF tracing form asking for
information about the person who had purchased the gun listed on the form. Id. at 2772 and
3618. The tracing form stated that the gun had been recovered by a law enforcement agency
but did not state that the gun had been recovered in Mexico. Id. at 2771-72. Terri determined
that Penny was the person who purchased the gun. Id. at 2772-73. Terri returned the form and
identified Penny as the purchaser, listing the date sold as J uly 8, 2010. See id. Terri admitted that
she had discussed the trace form with Penny. Id. at 2742, 2775. According to Terri, she told
Penny that Penny needed to check her safe and see if any guns were missing because if they
were, she should call law enforcement. Id. at 2742. Terri did not recall whether she mentioned
her conversation with Penny to the investigating agents. Id. at 2775-76.
Therefore, an inference can be drawn that the Defendants knew the weapons they were
selling were going to Mexico. See United States v. Rogers, 46 F.3d 31, 33 (7th Cir. 1995)
(holding that when a number of weapons a defendant has sold over time end up involved in
crimes, an inference can be drawn that the defendant knew the weapons would be used in other
21

felonies).
D. Double Counting
Defendants claim that application of U.S.S.G. 2K2.1(b)(5) coupled with 2K2.1(b)(6)
constitutes impermissible double-counting, is meritless. [T]he sentencing enhancements under
2K2.1(b)(5), and 2K2.1(b)(6)(A) address two different kinds of harm. United States v. Villa
Carvajal, 516 F. Appx 808, 811 (11th Cir. 2013). As the Eleventh Circuit explained in Villa
Carvajal, [t]he enhancement under 2K2.1(b)(5) increases a defendants case offense level for
trafficking in firearms regardless of whether the defendant intends to export those firearms to
another country. See U.S.S.G. 2K2.1(b)(5). Id. However, the enhancement under
2K2.1(b)(6)(A) applies when a defendant exports firearms outside of the United States, even if
he did not engag[e] in firearm trafficking. U.S.S.G. 2K2.1(b)(6)(A). Id. As such,
2K2.1(b)(6)(A) addresses a conceptually separate notion from the trafficking enhancement
because it specifically punishes the harm resulting from illegal exportation of firearms Thus,
it would not apply to someone who trafficked in firearms but did not intend to export those
firearms to another country. Id. For these reasons, the Defendants enhancement for exporting
firearms does not constitute impermissible double counting.
Thus, the trafficking enhancement does not fully account for the additional harm that the
Defendants intended by illegally exporting the firearms outside of the United States. See United
States v. Coldren, 359 F.3d 1253, 1256-57 (10th Cir. 2004).
E. Obstruction of J ustice

Section 3C1.1 of the Sentencing Guidelines states:

Obstructing or Impeding the Administration of J ustice

If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation,
22

prosecution, or sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendants offense of conviction and any
relevant conduct, or (ii) a closely related offense, increase the offense level by 2
levels.

The Comments section following 3C1.1 provides a non-exhaustive list of the type of conduct
to which the obstruction adjustment applies. Application Note 4(b) provides:
(b) committing, suborning, or attempting to suborn perjury ;
and Application Note(f) provides:
(f) providing materially false information to a judge or magistrate.
Similarly, Application Note 2 states that the provision is not intended to punish a
defendant for the exercise of a constitutional right such as a denial of guilt (other than a denial
of guilt under oath that constitutes perjury). U.S.S.G. 3C1.1 comment. (n.2) (emphasis
added).
In United States v. Sarracino, 340 F.3d 1148, 1172 (10th Cir. 2003), the Court held that
an obstruction of justice enhancement under 3C1.1 predicated upon perjury is appropriate
when the sentencing court finds that the defendant has given [i] false testimony [ii] on a material
matter [iii] with the willful intent to provide false testimony, rather than as a result of confusion,
mistake, or faulty memory. Material evidence, as used in 3C1.1, means evidence that, if
believed, would tend to influence or affect the issue under determination. Id. The mere fact that a
defendant testifies to his innocence and is later found guilty does not automatically warrant a
finding of perjury. Id. The sentencing court is required to carefully review the evidence and
make findings independent of the jury verdict which specifically identify the testimony at issue
and establish that, in fact, constitutes perjury. Id. at 1173.
In United States v. Wegg, 919 F. Supp. 898 (E.D. Va. 1996), the Court held that
increasing the defendants base offense level by two levels for obstruction of justice in the form
23

of perjury was warranted. The defendant, a federally licensed gun dealer, denied under oath,
before the jury, that he knew that the actual transferees of firearms in straw purchases were not
individuals who were filling out the required forms. The Court stated that the jury necessarily
found beyond a reasonable doubt that the defendant allowed such transactions with actual
knowledge of their illegality, and thus the Court found that the defendant gave false testimony
concerning a material fact with willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.
Section 3C1.1 of the Sentencing Guidelines clearly classifies lying, in detail, about a
material fact, at trial, under oath, as conduct warranting the offense level increase for obstruction
of justice. This is exactly the situation in the instant case.
Terri testified that she did not know that Penny Torres was committing crimes. App. at
2736. Terri said that she never saw Penny in the store with anyone other than her daughter. Id.
Terri claimed to have no knowledge of any connection between Penny and Roman. Id. at 2743.
Terri testified that she cooperated fully with law enforcement in answering all their questions.
Id. at 2742-43. Terri helped [b]ecause I was the one that started the whole thing to begin with,
and I had suspicions about [Penny Torres], or questions about her, and I if she was doing
something illegal, I needed to know that we werent ever going to participate in that. Id. at
2743.
Furthermore, Terri denied ever knowingly selling to anybody who said he was going to
illegally smuggle something to Mexico. Id. at 2744. She knew, though, that a license was
required to export firearms and ammunition from the United States. Id. at 2764-65.
Terri described the videotapes of the undercover operations as:
Routine sales practices, what we were all taught to do, based on Ricks car
business sales. You greet a customer first. You know, the customer is always
24

correct. Help the customer in any way you can, unless with the exception of
doing anything illegal. You just dont do that.
Id. at 2745. Terri testified that if she had thought anything criminal was occurring during the
undercover operations, she would have stopped the sale immediately and done what I did with
Penny Torres, contacted law enforcement. Id. at 2755.
However, Terris testimony was discredited by the evidence presented at trial. The
evidence leading up to the final undercover operation, on J uly 29, 2011, shows that Terri knew
that every single time Roman came into New Deal he was buying weapons for himself. For
example, during the J une 15 operation, Roman said to Terri, This Ryin, he likes to take my
money. App. at 3355. Terri responded, He does, doesn't he? Id. Roman replied, Yeah, he
loves to. He loves to. Id. Thus, the evidence shows that Terri as early as J une 15, 2011, that
Roman paid for the firearms when he came into New Deal.
The Tenth Circuit even suggests that Terris testimony was a willful attempt to exonerate
herself of all misconduct:
There were more clues from J une 15 as well. Near the end of that operation, Terri
asked Roman if he wanted to order another .50caliber rifle, suggesting that she
knew Roman was the .50caliber's actual buyer. Ryin affirmed this by saying,
Mom, he wants another one. Id. at 44:5557. Roman affirmed it too, telling
Terri, I'll buy it. I'll buy it. Id. at 45:0506. After Roman agreed to buy the .50
caliber, Terri took Roman's phone number as the person to call when it came in,
providing further evidence that Terri considered Roman the actual buyer of that
firearm. Terri also gave Roman an estimate of how much it was going to cost.
Accordingly, Terri ordered the .50caliber rifle knowing Roman had requested it,
had agreed to pay for it, and would pick it up when it came in. That's strong
evidence that Roman was the .50caliber's actual buyer, and Terri knew it.

Even more clues emerge from the J uly 7 operation. During that operation, Roman
again said to Terri, [Ryin's] taking my ... money. Government Ex. 201 at 8:25
30. Terri responded, I know, huh? Id. Later, while Terri was negotiating the
price for two firearms with Ryin and Roman, she said to Ryin, I was going to
give him [$]538 and give him an extra mag. Id. at 9:4346; App. vol. 16, at
3399. Translation: Terri considered Roman the actual buyer and was willing to
sell him the rifles for $538 each and throw in an extra magazine for good
measure. Further, as Roman was buying .50caliber ammunition, Terri asked him,
25

How about more ammo for your AK that you just bought? Government Ex. 201
at 40:2030; App. vol. 16, at 3436.

This wave of evidence against Terri reached its crest in one critical exchange
during the J uly 29 operation. Shortly after Roman and Agent Wigley arrived,
Terri greeted them and asked how she could help. Agent Wigley pointed at
Roman and said, Whatever he wants. Government Ex. 203 at 3:2023; App.
vol. 9, at 1846; App. vol. 16, at 3463.

Now, to her credit, Terri kept up the charade, pointed back at Agent Wigley, and
said, Whatever you want. Government Ex. 203 at 3:2325. But at that point
[J uly 29, 2011], the jig was up. Terri knew the firearms purchased that day would
be for Roman; Agent Wigley had just said so. Thus, the only way Agent Wigley's
purchases could have been legal is if Agent Wigley bought the firearms for
Roman as a gift. App. vol. 15, at 3299 (explaining on Form 4473 that [y]ou are
also the actual transferee/buyer if you are legitimately purchasing the firearm as a
gift for a third party). But Terri closed that escape hatch with her own testimony:

[MR. J ORDAN]: Now, is it your testimony that Kelley was buying
gifts for Roman?

TERRI REESE: No, sir. Kelley purchased firearms for herself.
App. Vol. 12, at 2767. But Agent Wigleys statement put Terri on notice that
those firearms were not for Agent Wigley. They were for Roman. Yet Terri still
helped Agent Wigley certify that she was the actual buyer on Form 4473.

United States v. Reese, 745 F.3d 1075, 1087-88 (10th Cir. 2014) (emphasis in original).
Terri Reeses testimony was material because it concerned the heart of the case, i.e.,
whether she acted with the requisite criminal intent. Given the evidence in the record (and the
contradiction between the defendants testimony and the testimony of other witnesses on
material issue), it can hardly be said that her testimony was inaccurate testimony caused by
confusion, mistake or faulty memory. Rather, it is clear that the testimony was a willful attempt
to exonerate herself of all misconduct. The factors supporting a sentencing enhancement are
established in the record and thus, the Court should add two points for obstruction of justice.
Similar to Terri, Rick Reese provided testimony in an attempt to willfully exonerate
himself of all misconduct. According to Rick, he did not know that Penny was lying when she
26

claimed on the form 4473s that she was the actual purchaser of the firearms she bought for
Roman. See App. at 2556-57, 2560. He claimed that the fact that she paid with cash did not raise
his suspicions because many of his customers paid with cash. Id. at 2557. He said that he also did
not think it was suspicious for a 33-year-old woman to buy multiple AK-47s. See id. at 2559.
Rick claimed he did not know the guns purchased during the undercover operations were
for Roman. Id. at 2575. He said he did not know that any guns he sold were intended for Mexico.
Id. at 2575-76. Rick denied ever telling Roman that he could take a .50 caliber rifle to the top of
a mountain in Mexico and use it to kill people. Id. at 2592. He testified that he never told
anybody who bought a gun in his store to use it to shoot people. Id.
On cross-examination, Rick admitted that on J uly 29, 2011, he told Roman, I hope my
guns go to Mexico. . . . I hope they use them to shoot those crooked mother-fucking Federales in
the asshole. Id. at 2607-08. Rick acknowledged that it was difficult for Mexican cartel
members to get weapons legally in Mexico, and that they could not go into an FFL in Mexico
and buy AK-47 type weapons. Id. at 2642. He also acknowledged that there was a big market
for AK-47s near the border. Id. at 2642-43. Rick knew that he needed an export license to export
firearms and ammunition to Mexico. Id. at 2645.
Rick admitted that Roman first brought Penny into the store and introduced her either to
Terri or Ryin he wasnt sure which because he wasnt there. Id. at 2670-71. He thought that
Penny was one of the ladies that dont have the knowledge of a firearm and will ask for help
from . . . men that know more about them. Id. at 2671. He also acknowledged that Penny bought
23 firearms from New Deal. Id. When asked why he didnt tell Agents Valles and Martinez that
Roman had brought Penny into the store, Rick said he didnt really consider it because the one
time he saw her there, she was only with her daughter. Id. at 2671-73.
27

With regard to the undercover operation on J uly 29, 2011, Rick acknowledged that
Roman told him that he had to spend $24,000 for the people in Mexico. Id. at 2684, 2702-03.
Roman said that he wanted to buy 24 grand of ammunition and some rifles. Id. at 2687. Rick
and Roman agreed they would handle the paperwork like always. Id. at 2687, 2691. Rick
admitted that Roman specifically told him that he wanted to take the ammunition to Mexico. Id.
at 2690. Roman also told Rick, Shes going to pay referring to the undercover officer. Id. at
2695-96. Rick later told Roman, You can have the young lady fill out the paperwork, and well
get you all set, bro. Id. at 2696.
These conversations between Rick and Roman clearly establish that Rick knew Roman
was the actual buyer. Roman discussed buying the firearms with Rick, Roman selected the
firearms, and Roman told Rick that Agent Wigley would fill out the paperwork. Rick even
watched as Roman pulled the money out of his pocket and handed it over to Agent Wigley to
give to Rick. Contrary to Ricks testimony, the evidence showed that Rick witnessed an obvious
straw purchase but helped Agent Wigley with Form 4473 nonetheless.
For the reasons stated above, the application of the two-level enhancement for both Terri
and Rick Reese for obstruction of justice, pursuant to U.S.S.G. 3C1.1, is warranted.
IV. A Downward Variance from the Advisory Guideline Range, Based on the Factors
Set Forth in 18 U.S.C. 3553(a), Is Not Warranted.

After United States v. Booker, 543 U.S. 220 (2005) and Rita v. United States, 551 U.S.
338 (2007), the Supreme Court left intact all other provisions of the Sentencing Reform Act,
including 18 U.S.C. 3553(a). Section 3553(a) continues to require sentencing judges to take
certain factors into account when imposing a sentence, including the kinds of sentence and the
sentencing range established by the guidelines. 18 U.S.C. 3553(a)(4). Therefore, the Court has
an obligation to craft a sentence that sufficiently accounts for the sentencing factors and
28

objectives outlined in 18 U.S.C. 3553.
The Court must consider the nature and circumstances of the offense and the history and
characteristics of the defendant. 18 U.S.C. 3553(a)(1). The Court should then fashion a
sentence that reflects the seriousness of the offense; promotes respect for the law; and provides
just punishment. 18 U.S.C. 3553(a)(2). The sentence should also adequately deter the
defendant from committing further crimes; deter others similarly situated; protect the public from
the defendant; and provide necessary education and treatment. Id. When formulating its
sentence, the court must also avoid unwarranted sentencing disparities between defendants with
similar records who have been convicted of similar criminal conduct. 18 U.S.C. 3553(a)(6).
As noted by the Supreme Court, the Guideline range is the benchmark and starting point
for any federal sentence. Gall v. United States, 128 S.Ct. 586, 596 (2007). Before a departure is
permitted, certain aspects of the case must be found unusual enough for it to fall outside the
heartland of cases in the Guideline. Koon v. United States, 518 U.S. 81, 98 (1996); see also
U.S.S.G. 1A1.1, Ch. 1, Pt.A, intro. comment. (n.4(b)) (The Commission intends the
sentencing courts to treat each guideline as carving out a heartland, a set of typical cases
embodying the conduct that each guideline describes.). [W]hether the particular case lies
within the heartland of similar offenses is a threshold question that a district court must decide
when determining whether to grant a departure under the Guidelines. United States v. Martinez-
Barragan, 545 F.3d 894, 900 (10th Cir. 2008). This type of heartland analysis is also a
legitimate part of the district courts analysis of whether to vary from the Guidelines under 18
U.S.C. 3553. Id. (emphasis in original).

29

A. The Nature and Circumstances of the Offense
Section 5G1.1(a) provides:
Where the statutory authorized maximum sentence is less than the minimum of
the applicable guideline range, the statutorily authorized maximum sentence shall
be the guideline sentence.

U.S.S.G. 5G1.1(a). Other than the break that the Defendants received from this guideline
adjustment, there is nothing about the nature or circumstances of the Defendants convictions
that warrant a downward variance.
The Court should consider the seriousness of the offense. The Supreme Court explained
that Congresss principal purpose in enacting the Gun Control Act, which regulates sales by
licensed firearms dealers, is to curb crime by keeping firearms out of the hands of those not
legally entitled to possess them. See Ambramski v. United States, 134 S.Ct. 2259, 2268 (2014)
(citing United States v. Huddleston, 415 U.S. 814, 825 (1974)). In order to achieve this purpose,
Congress chose to make the dealer the principle agent of federal enforcement in restricting
[criminals] access to firearms. Ambramski v. United States, 134 S.Ct. at 2271 (citing United
States v. Huddleston, 415 U.S. 814, 825 (1974)).
Additionally, the Supreme Court noted that the statutes record-keeping provisions
would serve little purpose if the records kept were of nominal rather than real buyers.
Ambramski, 134 S.Ct. at 2269. [T]hose provisions can serve their objective only if the records
point to the person who took actual control of the gun(s). Otherwise, the police will at most learn
the identity of an intermediary, who could not have been responsible for the guns use and might
know next to nothing about the actual buyer. Id.
In the instant case, the Defendants intentionally disobeyed Congresss intent to prevent
guns from falling into the wrong hands. The Defendants did this using their federal firearms
30

license and in doing so, knowingly and intentionally permitted persons to submit false
information about who was the actual purchaser of the firearms. The evidence presented at trial
demonstrated that the Defendants aided and abetted the transfer and sale of 39 firearms to person
they had reason to believe were going to illegally take those firearms out of the United States and
into Mexico. The Defendants had been involved in the instant offense for approximately 18
months and conducted multiple transactions with Penny Torres, Roman and other undercover
agents. As a result of their unlawful conduct, ATF Special Agent Richard Byrd testified that he
traced five weapons found in Mexico four AK-47 type rifles and a semiautomatic pistol to
New Deal, the Defendants business.
Given the nature and circumstances of this case, a sentence of 60 months imprisonment is
warranted.
B. History and Characteristics of Defendants
Nothing about the Defendants history is so extraordinary as to warrant a variance from
the guideline sentence of 60 months. The Defendants each have no criminal history. The lack of
criminal history has been taken into consideration by the Sentencing Guidelines. As such the
Defendants have been appropriately placed in Criminal History Category I, the lowest category
for purposes of calculating a Guidelines sentence.
C. The Need for the Sentence Imposed to Reflect the Seriousness of the Offense,
Promote Respect for the Law, Provide J ust Punishment, Adequate Deterrence and
Protect the Public from Further Crimes of the Defendants

A sentence below the advisory guideline range of 60 months will not reflect the
seriousness of Defendants offenses, promote respect for the law, provide just punishment,
provide for adequate deterrence, or protect the public from further crimes of the Defendants. As
this Court knows, the firearms involved in the instant offense were intended to be provided to
31

individuals associated with drug trafficking organizations, thereby fueling the ongoing violence
along out Southwest border. As such, the Defendants actions represent a very serious threat to
the safety of the citizens of both the United States and Mexico. Under these circumstances, a
variance is not warranted. Rather, a sentence of 60 months is required in order to address the
seriousness of the Defendants conduct and to deter other federally licensed firearm dealers from
knowingly making false statements and representations in connection with the acquisition of
firearms destined for Mexico. This is especially true since the Defendants were aware of the
Columbus gun investigation and still engaged in the misconduct in this case.
D. The Need to Avoid Unwarranted Sentencing Disparities Between Defendants Who
Have Committed Similar Crimes

A guideline sentence in the instant matter is necessary in order to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct. 18 U.S.C. 3553(a)(6). The guideline sentence is 60 months for a defendant
with the same criminal history category as the Defendants and who is guilty of the present
offenses. The Defendants request a sentence of time-served, which is approximately 17 months
for Rick and Ryin Reese and approximately 7 months for Terri Reese. This request for time-
served for Rick and Ryin Reese is roughly one-fourth the sentence of what would be assessed
against similarly-situated defendants. And for Terri Reese, a time-served sentence is merely one-
eighth the sentence of what would be assessed against similarly-situated defendants. There is
nothing in this case to warrant a variance to such a disparate sentence. Rather, a sentence within
the guideline range will further the important and intrinsically valuable end of ensuring
uniformity. See e.g., United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) ([T]he
purpose of the Guidelines [is] to promote uniformity in sentencing so as to prevent vastly
divergent sentences for offenders with similar criminal histories and offenses. (alteration in
32

original)).
In their motions for a Booker variance, the Defendants assert that this Court should
consider a sentence imposed in a similar case in this district, United States v. Villalobos, et. al.,
where the Court imposed a sentence which was significantly less than the guideline range
calculated in the pre-sentence report in the instant case. (Docs. 480 at 3-4, 481 at 4, 482 at 4).
In Villalobos, 11-CR-00487 RB, Ian Garland, the federally licensed firearms dealer
involved in that case, entered a plea of guilty to a single conspiracy count to illegally exporting
merchandise or articles in violation of 18 U.S.C. 553 and 371, and six counts of assisting
others with the straw purchasing of one hundred ninety three firearms while having reason to
know that the firearms were illegally destined to persons in Mexico. As a result of his guilty
plea, Garland received a three-level reduction for acceptance of responsibility. Garlands total
offense level was 27 and his Criminal History Category was I, resulting in a Guideline
imprisonment range of 70-87 months. However, the seven counts to which Garland pled guilty
all carried a statutory maximum penalty of 60 months. Thus, the Guideline Sentencing range for
Defendant Garland became 60 months imprisonment. On May 24, 2012, the Court sentenced
Defendant Garland to the maximum statutory term of 60 months imprisonment followed by a 3-
year term of supervised release.
On October 28, 2013, the Court concluded that an error had been made in calculating
Defendant Garlands base offense level. Based on a corrected base offense level, Garlands new
sentencing guideline range became 37-46 months imprisonment. On December 13, 2013, the
Court re-sentenced Garland to 37 months imprisonment.
Therefore, in holding with the consistency of sentencing of federally licensed firearm
dealers in the District of New Mexico, like Garland, this Court should sentence the Defendants to
33

their correctly calculated guideline sentencing range of 60 months imprisonment. Unlike the
Defendants in this case, Ian Garland accepted responsibility for his actions and did not perjure
himself on the stand at trial.
IV. Conclusion

WHEREFORE, the United States respectfully requests that this Court conclude that a
sentence of 60 months imprisonment for each Defendant would be sufficient, but not greater than
necessary to comply with the sentencing factors in 18 U.S.C. 3553(a). Furthermore, the Court
should not find that any downward departures or variances from the guideline imprisonment
range are warranted.

Respectfully submitted,

DAMON P. MARTINEZ
United States Attorney

Electronically Filed 9/22/2014
MARIA Y. ARMIJ O
AARON O. J ORDAN
Assistant United States Attorney
555 S. Telshor, Ste. 300
Las Cruces, NM 88011
(575) 522-2304 - Tel.
(575) 522-2391 Fax

I HEREBY CERTIFY that I electronically
filed the foregoing with the Clerk of the
Court using the CM/ECF system which
will send electronic notification to defense
counsel of record.

/s/ /
MARIA Y. ARMIJ O
Assistant United States Attorney


2-Response by Usa

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2-Response by Usa

Uploaded by

Copyright:

Available Formats

1

IN THE UNITED STATES DISTRICT COURT

You might also like