2-response by usa

8/11/2019 2-Response by Usa

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

vs.

RICK REESE,

TERRI REESE, andRYIN 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 Joint 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


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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 July 17, 2012. On July 27, 2012, the

Defendants moved for judgment of acquittal on all counts. On July 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 theApplication Notes, The

principles and limits of sentencing accountability under this guideline are not always the same as



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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



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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.1at 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 Jos Alfredo Roman-Jurado (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 toMexico and there there was no theres going to be no problems. If they catchthem 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 July 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

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



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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 inMexico?

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

Q. And one way to defend themselves was to have firearms that werepurchased in your store to help defend themselves, correct? That wouldhelp 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 June 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 July 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.



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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



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on behalf of Roman on several occasions, including a purchase of ten AK-47 type rifles on June

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 June 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 July 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 July 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.



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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

July 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.



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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.



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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 firearms2that 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 June 30, 2010 Yugo M-70 7.62x39 Rifle AB2T-N101949


8 June 30, 2010 Yugo M-70 7.62x39 Rifle AB2T-N1020349 June 30, 2010 Yugo M-70 7.62x39 Rifle AB2T-N102547




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



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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-2238-1019 August 25, 2010 Century Arms Int Draco Pistol DC-2402-10

20 August 25, 2010 Century Arms Int Draco Pistol DC-0646-10



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 Number24 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 GP1975 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


No. Firearms Brand/Model Caliber Serial Number

29 Romarm1Cugir, model GPWASR-IO/63

7.62x39 caliber rifle 1988-ACV0203


7.62x39 caliber rifle 1984-5856


7.62x39 caliber rifle 1983-NR6591

32 Century Arms Inc., modelM70AB2

7.62x39 caliber rifle AB206262

During the undercover operation on June 15, 2011, Roman, utilizing an undercover agent



33 Barrett, model 99 .50 caliber rifle D6998



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On July 7, 2011, during the undercover operation, Roman, utilizing an undercover agent


No. Firearms Brand/Model Caliber Serial Number34 Romarm1Cugir, model GP

WASR-IO/637.62x39 caliber rifle I 940-BT1 65 I


7.62x39 caliber rifle I 974-DT2396

36 Barrett, model 99 .50 caliber rifle, boltaction rifle

D7199

Finally, during the last undercover operation on July 29, 2011, Roman, utilizing an

undercover agent as a straw-purchaser, purchased the following firearms:


37 American Tactical Imports,model C92

9mm pistol T0624-09TE02S499

38 Barrett, model 99 9mm pistol M9-126867

39 Roman/Cugir, Draco 7.62x39 caliber pistol DC-S1S7-1ORO

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



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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-Juardo 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



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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 July 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



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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 June 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 July 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



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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:

Juarez 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 thesepurchases were repetitive in one one-month period, for example, Juarezpurchased the same model of firearm six different times. In every transaction withEl Mano, she delivered the weapons to Roma, Texas, a town located just onemile from the border between Mexico and the United States, in some instancesafter transporting them from a gun store in McAllen, Texas, thirty-seven milesfrom 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 Juarez to believe that the



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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 Juarez 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 July 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



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gave Roman the receipt. Id.at 1269.

Roman went back to New Deal with the undercover agent on June 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 July 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



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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 deal3with 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.

3Another investigation in the nearby town of Columbus, New Mexico, had resulted in the indictment of severaltown officials for firearms violations. SeeApp. at 1873.



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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 July 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 July 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



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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 Justice

Section 3C1.1 of the Sentencing Guidelines states:

Obstructing or Impeding the Administration of Justice

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



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

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



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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 carbusiness sales. You greet a customer first. You know, the customer is always



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correct. Help the customer in any way you can, unless with the exception ofdoing 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 July 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 June 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 June 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 June 15 as well. Near the end of that operation, Terriasked Roman if he wanted to order another .50caliber rifle, suggesting that sheknew 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, tellingTerri, I'll buy it. I'll buy it.Id.at 45:0506. After Roman agreed to buy the .50caliber, 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 thatfirearm. 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 strongevidence that Roman was the .50caliber's actual buyer, and Terri knew it.

Even more clues emerge from the July 7 operation. During that operation, Romanagain said to Terri, [Ryin's] taking my ... money. Government Ex. 201 at 8:2530. Terri responded, I know, huh? Id. Later, while Terri was negotiating theprice for two firearms with Ryin and Roman, she said to Ryin, I was going togive him [$]538 and give him an extra mag. Id. at 9:4346; App. vol. 16, at3399. Translation: Terri considered Roman the actual buyer and was willing tosell him the rifles for $538 each and throw in an extra magazine for goodmeasure. Further, as Roman was buying .50caliber ammunition, Terri asked him,



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

This wave of evidence against Terri reached its crest in one critical exchangeduring the July 29 operation. Shortly after Roman and Agent Wigley arrived,

Terri greeted them and asked how she could help. Agent Wigley pointed atRoman 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, andsaid, Whatever you want. Government Ex. 203 at 3:2325. But at that point[July 29, 2011], the jig was up. Terri knew the firearms purchased that day wouldbe for Roman; Agent Wigley had just said so. Thus, the only way Agent Wigley'spurchases could have been legal is if Agent Wigley bought the firearms forRoman as a gift. App. vol. 15, at 3299 (explaining on Form 4473 that [y]ou arealso 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. JORDAN]: Now, is it your testimony that Kelley was buyinggifts for Roman?

TERRI REESE: No, sir. Kelley purchased firearms for herself.

App. Vol. 12, at 2767. But Agent Wigleys statement put Terri on notice thatthose firearms were not for Agent Wigley. They were for Roman. Yet Terri stillhelped 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



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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 July 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.



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With regard to the undercover operation on July 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) andRita 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



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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 alsoa

legitimate part of the district courts analysis of whether to vary from the Guidelines under 18

U.S.C. 3553.Id.(emphasis in original).



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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 shallbe 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



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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 Just Punishment, Adequate Deterrence andProtect 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



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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 WhoHave 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



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original)).

In their motions for aBooker 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



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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 9/22/2014MARIA Y. ARMIJOAARON O. JORDANAssistant United States Attorney555 S. Telshor, Ste. 300Las Cruces, NM 88011(575) 522-2304 - Tel.(575) 522-2391 Fax

I HEREBY CERTIFY that I electronicallyfiled the foregoing with the Clerk of theCourt using the CM/ECF system which

will send electronic notification to defensecounsel of record.

/s/ /MARIA Y. ARMIJOAssistant United States Attorney


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