ERIC J. MARKOVICH, Magistrate Judge..
This case arises from the Government's filing of a criminal complaint on February 27, 2019 in the United States District Court for the District of Arizona alleging Defendant Antwanette Marie Masters violated 18 U.S.C. §§ 922(g) and 924(a)(2) for being a felon in possession of a firearm and ammunition. (Doc. 1). Defendant was arrested on March 14, 2019, (Doc. 12), and a federal grand jury indicted Defendant on March 20, 2019. A superseding indictment was then filed on May 29, 2019. (Doc. 22).
Pending before the Court is Defendant's Motion to Dismiss the Superseding Indictment with Prejudice. (Doc. 26). Defendant is charged with one count of being a felon in possession of a firearm and ammunition pursuant to 18 U.S.C. § 922(g)(1). (Doc. 13). Defendant argues that the indictment should be dismissed because her three Arizona class 6 undesignated offense convictions are not felonies for purposes of 18 U.S.C. § 922(g)(1) because the maximum penalty for those offenses under Arizona's mandatory sentencing scheme was one year in prison (the presumptive sentence). (Doc. 26). The Government argues that whether Defendant's convictions were felonies for purposes of § 922(g)(1) is a question of fact left to the jury and not a matter of law to be addressed via a motion to dismiss the indictment. (Doc. 34). The Government further argues that even if this issue is a matter of law, Defendant is in fact a felon based on her previous convictions as they were punishable by more than one year in prison. Id.
The Court concludes that whether Defendant's underlying convictions constitute felonies is a proper question of law for the Court to decide. Further, the Court finds that Defendant's underlying convictions do not constitute felonies for purposes of 18 U.S.C § 922(g)(1) because she did not face greater than a year in prison on any of the charges. While her 2014 convictions could have carried a longer sentence than the presumptive one year, no finding was made by the state court as to any aggravating factors which would have increased the maximum sentence. Therefore, the undersigned recommends that the motion to dismiss the superseding indictment with prejudice be granted.
The Government filed a criminal complaint against Defendant on February 27, 2019, charging her as a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) based on a 2014 conviction. (Doc. 1). The criminal complaint describes both the present and underlying offenses:
On March 14, 2019, Defendant was arrested on the alleged violations. (Doc. 12). On March 20, 2019, a federal grand jury sitting in Tucson, Arizona returned a one-count indictment charging Defendant with violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of a firearm and ammunition based on Defendant's 2014 conviction in Arizona Superior Court, Pima County. (Doc. 13). The Government then filed a superseding indictment on May 29, 2019, which added a 2006 conviction in Arizona Superior Court, Pima County, as another predicate felony. (Doc. 22).
Defendant has three criminal convictions stemming from two separate incidents that may satisfy the predicate felony requirement of 18 U.S.C. § 922(g)(1).
On September 11, 2006, Defendant entered into a plea agreement wherein she pled guilty to the charge of "FACILITATION OF TRAFFICKING IN STOLEN PROPERTY, SECOND DEGREE, A CLASS SIX UNDESIGNATED FELONY." (Doc. 26-1 Ex. B at 1). The plea agreement outlined that if Defendant was sentenced to prison for the offense, the following statutory sentencing range applied: 0.33 years for a substantial mitigated sentence; 0.5 years for a mitigated sentence; 1.0 years for a presumptive sentence; 1.5 years for an aggravated sentence; and 2.0 years for a substantially aggravated sentence. Id. The plea agreement also included a list of "DEFENDANT'S ACKNOWLEDGMENTS." Id. at 4. These acknowledgments included a waiver of trial rights that stated, in part,
The Pima County Superior Court held a change of plea hearing on September 11, 2006, where the presiding judge accepted Defendant's plea agreement. (Doc. 26-1 Ex. C at 12:6-8). During the course of that hearing, the judge advised Defendant:
Id. at 5:15-25; 6:1. The judge further advised Defendant that if she chose not to plead guilty she "would also have the right to have a trial by a jury on any aggravating circumstances that could cause the Court to increase or elevate [her] sentence higher than the presumptive sentence available to the Court for sentencing in [her] case." Id. at 8:13-17.
On October 11, 2006, the Pima County Superior Court conducted a sentencing hearing regarding Defendant's offense. The presiding judge found Defendant guilty of the charge, suspended imposition of a sentence, and placed Defendant on supervised probation for three years. (Doc. 26-1 Ex. D at 3:14-21; 5:3-8). After some back and forth between Defendant and the judge regarding the terms of probation, the judge made a statement about the sentence he could have imposed:
Id. at 9:1-6. However, no such sentence was given, and Defendant received probation on the undesignated offense. See Doc. 26-1 Ex. D; Ex. G. The Pima County Superior Court then discharged Defendant from probation on October 19, 2009 and indicated that "[a]ny undesignated offense shall remain undesignated," and that her civil rights were not restored. (Doc. 31-1 Ex. B at 1).
On November 20, 2014, Defendant entered into a plea agreement to the charges of "SOLICITATION TO UNLAWFULLY POSSESS A NARCOTIC DRUG, A CLASS SIX UNDESIGNATED OFFENSE" and "UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA, A CLASS SIX UNDESIGNATED OFFENSE." (Doc. 26-1 Ex. A at 1). The plea agreement outlined the statutory sentencing ranges that applied to the offenses if they were treated as felonies: 0.33 years for a mitigated sentence; 0.5 years for a minimum sentence; 1.0 years for a presumptive sentence; 1.5 years for a maximum sentence; and 2.0 years for an aggravated sentence. Id. It also described an undesignated offense as an offense that "shall be treated as a felony for all purposes unless and until the Court enters an order designating the offense as a misdemeanor." Id. at 2. In her plea agreement, Defendant acknowledged that by entering into the plea agreement she waived certain rights to which she was entitled. Id. at 5-6. This included having a jury determine any aggravating or mitigating factors. Id. at 6. That language matched verbatim the language of her 2006 plea agreement, see supra. Id. Additionally, the plea agreement contained a "STANDARD TERMS AND CONDITIONS" section where it stated that "[t]he Defendant avows that this document bears his (sic) true name and that he (sic) has no prior felony convictions other than those set forth in any Allegation of Prior Conviction filed in this case."
The Pima County Superior Court held a change of plea hearing on November 20, 2014. (Doc. 26-1 Ex. E). At that hearing, the presiding judge told Defendant that "at the time of sentencing, you will be sentenced to probation." Id. at 4:17-18. The judge then warned Defendant of the prison time she faced for her offenses:
Id. at 4:25; 5:1-8. The judge then accepted the plea after hearing the factual basis. Id. at 7:7-10.
The Pima County Superior Court held a sentencing hearing on December 12, 2014 and found Defendant guilty. (Doc. 26-1 Ex. H at 6:13-20). Imposition of a sentence was again suspended, and the Court placed Defendant on probation for 18 months. Id. at 7:7-10.
On January 21, 2015, a "PETITION TO REVOKE PROBATION AND ORDER" was submitted to the Pima County Superior Court by the probation office due to Defendant's noncompliance with her probation. (Doc. 31-1 Ex. E at 1-2). On January 23, 2015, the superior court ordered that a bench warrant issue for the arrest of Defendant. Id. at 3. On February 12, 2019, the Superior Court ordered that the petition to revoke probation be dismissed, designated the 2014 offenses as class six felonies, and terminated probation. (Doc. 31-1 Ex. F at 1-2; Ex. H at 3:1-25; 4:1-5).
On June 5, 2019, Defendant filed the instant Motion to Dismiss the Superseding Indictment with Prejudice. (Doc. 26). Defendant argues that because her offenses "as actually prosecuted and adjudicated were punishable with only one year in custody," she is not a felon for purposes of 18 U.S.C. § 922(g)(1) and therefore cannot be prosecuted for violation of that statute. Id. at 3:11-12 (internal quotations omitted). Defendant bases this argument almost entirely on a recent Ninth Circuit Court of Appeals case, United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019).
On June 20, 2019, the Court ordered Defendant to file a supplement to her motion with documentation from the Arizona Superior Court regarding "whether any of the defendant's prior convictions were subsequently designated as misdemeanor offenses . . . and . . . if any of the offenses were designated as a felony offense as a result of a probation violation, the maximum period of incarceration that the defendant faced for the probation violation." (Doc. 30). Defendant filed the supplement on June 24, 2019. (Doc. 31).
On June 26, 2019, the Government filed an untimely Response to Defendant's Motion to Dismiss the Superseding Indictment. (Doc. 34). The Government argues that the determination of whether Defendant's prior convictions are felonies is a matter of fact that should be decided at trial. Id. at 2:10-11. Alternatively, the Government argues that even if the issue is a matter of law that may be determined pretrial, Defendant's prior convictions did constitute felonies for the purposes of 18 U.S.C. § 922(g)(1) because Valencia-Mendoza interpreted the "punishable by" language of United States Sentencing Guideline ("USSG") § 2L1.2 and not 18 U.S.C. § 922(g)(1). Id. at 10:18-20; 11:1-4. Therefore, the Government urges the Court to treat the part of Valencia-Mendoza that states that "punishable by" means the maximum sentence permitted under a state's mandatory sentencing guidelines as applied to an individual defendant as dicta and to instead decide that the holding of United States v. Murillo, 442 F.3d 1152 (9th Cir. 2005) still applies (mandating that the "crime punishable by" language for purposes of § 922(g)(1) means the statutory maximum term of imprisonment). Id. at 16:14-21; 17:1-3.
Defendant filed a Reply to the Government's Response and a Motion to Strike the Government's Response to the Motion to Dismiss on July 2, 2019 as both untimely and exceeding the length limits for responsive pleadings. (Doc. 37). The Government filed a motion for an extension of time to respond to Defendant's Motion to Dismiss, nunc pro tunc, on July 8, 2019. (Doc. 39). The Court held a motion hearing on July 10, 2019 and denied the motion to strike, granted the Government's motion for an extension of time to file its Response nunc pro tunc, and took the instant motion under advisement.
The Government argues that the question of whether Defendant's prior convictions were predicate offenses is an issue of fact best left to the jury to determine.
Rule 12(b) of the Federal Rules of Criminal Procedure states that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Rule 12(b) motions are generally "appropriate to consider `such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, [and] lack of jurisdiction.'" United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993) (quoting United States v. Smith, 866 F.2d 1092, 1096 n. 3 (9th Cir. 1989)). "A defendant has a right to have a jury determine, beyond a reasonable doubt, that he is guilty of every element of the crime with which he is charged. United States v. Jenkins, 501 Fed.Appx. 685, 686 (9th Cir. 2012) (citing United States v. Gaudin, 515 U.S. 506, 522-23 (1995)).
18 U.S.C. § 922(g) makes it unlawful for certain people to possess a firearm or ammunition. Generally, there are four basic elements to the § 922(g) violation: (1) a status element; (2) a possession element; (3) a jurisdictional element; and (4) a firearm element. United States v. Rehaif, 139 S.Ct. 2191, 2195-96 (2019). The offense also requires the government to prove that a defendant knew he or she possessed a firearm as well as that a defendant knew he or she was in a restricted category of persons (in this case, a person previously convicted of a crime punishable by more than one year in prison). See id. at 2200. Whether a defendant's prior offense was punishable by more than one year in prison has been held by courts in sister circuits to be a legal determination properly decided by the trial judge. See United States v. Flower, 29 F.3d 530, 535 (10th Cir. 1994) ("it is the trial judge's responsibility to determine as a matter of law whether a prior conviction is admissible in a § 922(g)(1) case"); United States v. Zellars, 2007 WL 1590846 at *3 (E.D. Ky. May 31, 2007)("the Court agrees that the viability of a prior conviction for a § 922(g)(1) charge is a legal question that must be decided as a matter of law"); United States v. Del Valle-Fuentes, 143 F.Supp.3d 24, 27(D. P.R. 2015) ("The issue of whether [defendant's prior offense] constitute[s] a felony conviction for purposes of section 922(g)(1) is a purely legal question that the Court can answer without a trial on the merits"). This is a stance that the Ninth Circuit Court of Appeals has also seemingly adopted. See Jenkins, 501 Fed.Appx. at 686 (trial court informing jury that the underlying offense was a predicate felony was not improper as jury still had to find that the defendant was convicted under that statute).
Here, the Court agrees with Defendant that this issue is a matter of law that it may properly rule on before trial. In determining whether Defendant's underlying offenses were punishable by more than one year in prison, this Court does not decide any essential element of § 922(g)(1). The Court does not determine: Defendant's status or her knowledge of the alleged prohibited status; her possession of any firearm or ammunition or her knowledge of said possession; the interstate or foreign commerce connection of any firearm or ammunition; or that the object at issue was in fact a firearm. In deciding whether Defendant's underlying offenses were punishable by more than one year in prison, the Court comports with the Ninth Circuit's decision in Jenkins and other circuit courts' determinations that this issue is a matter of law. Therefore, the Court finds the question of whether Defendant's prior offenses were punishable by more than one year in prison to be a matter of law.
Defendant moves to dismiss the superseding indictment based on her belief that she is not a convicted felon for purposes of prosecution under 18 U.S.C. § 922(g)(1). Defendant contends that after the recent Ninth Circuit Court of Appeals' decision in United States v. Valencia-Mendoza, neither of her previous convictions in the Arizona Superior Court were punishable by more than one year in prison. The Government argues that the language in 18 U.S.C. § 922(g)(1), "punishable by imprisonment for a term exceeding one year," still refers to the statutory maximum as outlined in United States v. Murillo and not the maximum sentence that could have been imposed under Arizona's mandatory sentencing guidelines. The Government then argues that Defendant's convictions remain felonies because there was a statutory maximum sentence of two years in prison for class 6 felonies.
The felon in possession statute, 18 U.S.C. § 922(g)(1), makes it "unlawful for any person...who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess a firearm that has been shipped or transported in interstate or foreign commerce. Under prior Ninth Circuit precedent, to determine whether a prior state conviction was a predicate offense under 18 U.S.C. § 922(g)(1), a court was to look at the "potential maximum sentence defined by the applicable state criminal statute, not the maximum sentence which could have been imposed against the particular defendant for his commission of that crime according to the state's sentencing guidelines." United States v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005). In Murillo, the defendant had previously pled guilty to one count of harassment and one count of unlawful possession of a firearm in a Washington state court in 1998. Id. at 1153. Each crime, class C felonies, carried a possible term of imprisonment of up to five years according to the sentencing statute. Id. However, under Washington's sentencing guidelines, the defendant's "actual maximum possible term of imprisonment was 12 months" and he was sentenced to 10 months imprisonment on each count. Id. The defendant was indicted in federal court in 2004 and charged with one count of being a felon in possession of a firearm in violation of § 922(g)(1) based on the two underlying Washington state convictions. Id. The district court dismissed the indictment against Murillo, accepting his argument that under Washington's sentencing guidelines, he was only actually punishable by a term of up to 12 months regardless of the statutory maximum because no aggravating factors were found. Id. However, the Ninth Circuit in Murillo rejected the argument accepted by the district court that the "punishable by" language in 18 U.S.C. § 922(g)(1) referred only to the maximum sentence that could be imposed against a particular defendant under the sentencing guidelines because it was inapposite with Supreme Court precedent. Id. at 1154-55.
However, the Ninth Circuit overruled Murillo in a recent opinion. United States v. Valencia-Mendoza, 912 F.3d 1215, 1222 (9th Cir. 2019) ("Accordingly we hold that our earlier precedents...must be overruled"). In Valencia-Mendoza, the defendant had previously been convicted in Washington state court for possession of cocaine, a class C felony punishable under the same provision of the Washington statutes as was at issue in Murillo. Id. at 1216. As a class C felony, the defendant faced a statutory maximum term of imprisonment of five years. Id. However, under Washington's sentencing guidelines for drug offenses, the sentencing court was required to impose a sentence within the particularly calculated range of 0 to 6 months imprisonment based on the defendant's seriousness level and offender score unless certain aggravating circumstances were found to be present. Id. at 1216-17. No such circumstances were found, and Valencia-Mendoza received a sentence of 30 days in jail. Id. at 1217-18. Valencia-Mendoza later pleaded guilty to unlawfully reentering the United States after having been removed, in violation of 8 U.S.C. § 1326(a). Id. at 1216. Based on his underlying conviction in Washington, Valencia-Mendoza received a four-level enhancement during his sentencing for having been previously convicted of a felony pursuant to USSG § 2L1.2.
The Ninth Circuit vacated the district court's sentence and remanded for resentencing, holding that when considering whether a state predicate offense was "punishable by imprisonment for a term exceeding one year," courts must consider both the relevant statutory maximum sentence for the offense and any mandatory sentencing factors. Id. at 1224. The court based its decision to overrule its precedent on two Supreme Court decisions, Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) and Moncrieffe v. Holder, 569 U.S. 184 (2013), that were decided after Murillo and distinguished another, United States v. Rodriquez, 553 U.S. 377 (2008). Id. at 1222 ("Although those Supreme Court cases arose under different statutes, they are central to our analysis here"). The court reasoned that since the Supreme Court held in Carachuri-Rosendo and Moncrieffe that courts must examine both the elements of an offense and the corresponding sentencing factors in deciding whether a crime is punishable by more than one year, then prior circuit case law to the contrary was "clearly irreconcilable" with those holdings.
Arizona has a mandatory sentencing guideline scheme similar to the Washington mandatory sentencing guidelines at issue in Valencia-Mendoza. Under the Arizona scheme, a class 6 felony carries a presumptive sentence of one year.
A court "may increase or reduce the presumptive sentence...based on the aggravating and mitigating circumstances." Id.; see also Arizona v. Martinez, 210 Ariz. 578, 583 ¶ 19 (2005) ("In Arizona, a defendant convicted of a felony faces a presumptive sentence. . .a judge [can] increase or decrease a defendant's presumptive sentence within the range. . .only if `the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge'"). A court may impose the maximum term if the trier of fact finds one or more aggravating circumstances to be true or the defendant admits to those circumstances (except the court may find the aggravating circumstance of a prior felony conviction).
If the court issues a sentence other than the presumptive sentence, then it must set forth its "factual findings and reasons in support of these findings" on the record during sentencing. A.R.S. § 13-702(C); see also A.R.S. § 13-701(C); Arizona v. Mahler, 128 Ariz. 429, 431 (1981) ("urging that trial judges make specific findings of the aggravating or mitigating factors which form the basis for a sentence greater or lesser than the presumptive sentence"). "However, it is only when the aggravating or mitigating circumstances are found to be true and are to be relied upon in varying from the presumptive sentence that the trial court must articulate factual findings, and reasons in support of the findings at the time of sentencing." Arizona v. Winans, 124 Ariz. 502, 505 (App. 1979).
There is a large range of aggravating and mitigating circumstances listed under the state statute. See A.R.S. § 13-701(D), (E). The aggravating circumstances that are especially relevant in the instant case include being previously convicted of a felony within the last ten years preceding the date of the offense and "any other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime." Id. § 13-701(D)(11), (27). The relevant mitigating circumstances include: the age of the defendant, the defendant's capacity to appreciate the wrongfulness of the defendant's conduct being impaired, minor involvement in the offense, and any other relevant factor. Id. § 13-701(E)(1)-(2), (6).
Under A.R.S. § 13-604(A), a court may designate a nondangerous class 6 felony as a class 1 misdemeanor if "it would be unduly harsh to sentence the defendant for a felony." The court may also "place the defendant on probation . . . and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor." Id.
Here, the Government is misguided in believing that this Court is not bound by Valencia-Mendoza and may instead continue to rely on Murillo. The Ninth Circuit overruled Murillo and instructed courts interpreting "punishable by" language to look beyond the maximum sentence allowed by statute. Instead, Defendant is correct that this Court must consider both the statutory maximum sentence allowed for her prior offenses as well as the mandatory sentencing factors involved in them to determine what sentence Defendant was actually facing under the mandatory sentencing scheme.
The Court now turns to the three convictions that may serve as predicate offenses for the current charge of being a felon in possession of a firearm and ammunition.
The Court finds that when Defendant entered into a plea agreement in 2006, she faced the presumptive sentence of one year. The Court comes to this conclusion for two reasons. First, this was Defendant's first felony conviction, which under the Arizona statutes in force at the time carried a presumptive sentence of one year. While the sentencing court could have deviated from that number, there is no indication that the court made a finding of any aggravating factors. Second, if anything, Defendant may very well have faced a reduced sentence allowed under the sentencing guidelines of six months. The Court bases this conclusion on the transcript of the sentencing hearing. During the hearing, the sentencing judge averred that if he decided to immediately designate the offense a felony and sentence Defendant to a term in prison, he "could very easily just go ahead and treat the matter as a felony and give [Defendant] six months in the Department of Corrections" due to her young age (mitigating circumstance) and lack of a prior felony (aggravating circumstance), as well as the nondangerous nature of her crime. (Doc. 26-1 Ex. D at 9:4-6). Therefore, it seems evident that if the court had imposed a sentence, it intended to find mitigating circumstances and issue a reduced sentence.
Considering the plain language of the statute in force at the time of Defendant's sentencing as well as the sentencing factors, the Court finds that Defendant faced, at most, the presumptive sentence of one year. This offense cannot serve as the predicate offense to an 18 U.S.C. § 922(g)(1) prosecution.
Defendant's two convictions stemming from her 2014 arrest for solicitation to unlawfully possess a narcotic drug and unlawful possession of drug paraphernalia could serve as predicate offenses for purposes of prosecution under 18 U.S.C. § 922(g)(1). However, for the foregoing reasons, the undersigned concludes that they do not.
At the time of the convictions, Defendant faced a statutory maximum sentence of two years if the judge entered an "aggravated" sentence for a class 6 felony. Under Murillo, the two-year statutory maximum for an aggravated sentence would end this Court's inquiry, and the Court would find Defendant had a qualifying predicate offense under 18 U.S.C. § 922(g)(1) as she would be convicted of a crime "punishable by over a year imprisonment." However, this is no longer the end of the inquiry. Instead, this Court must also analyze Arizona's mandatory sentencing guidelines to determine what sentence this Defendant actually faced.
Here, because these offenses were for soliciting to unlawfully possess a controlled substance and unlawful possession of drug paraphernalia, Defendant's offenses fit squarely into the mandatory structure of A.R.S. § 901.01(A). This statute mandated that the sentencing judge suspend imposition of a sentence and give Defendant probation. See A.R.S. § 901.01(A) ("The court shall suspend the imposition or execution of sentence and place the person on probation"). Defendant was therefore not facing prison time at the time of her sentencing unless she violated her probation. Therefore, the greatest punishment a judge could give Defendant based on the charges was probation, which was then to be revisited if Defendant violated that probation.
In order to analyze what sentence Defendant faced if she violated probation, it is helpful to compare the instant case with the underlying sentencing scheme at issue in Valencia-Mendoza. In Valencia-Mendoza, the sentencing judge had a range within which the defendant could be sentenced, referred to as the "presumptive sentence." Valencia-Mendoza, 912 F.3d at 1217. However, the judge could expand beyond that presumptive sentence to the statutory maximum by finding any aggravating circumstances that justified doing so and stating them on the record. Id. at 1217-18. The Arizona scheme at issue here is similar, except that Arizona's presumptive sentence is a single term of years rather than a range. Under Arizona law, the judge must issue the presumptive sentence of one year for class 6 felonies absent any findings of aggravating or mitigating circumstances. If the judge does find aggravating circumstances, then the judge may issue a sentence all the way up to the statutory maximum sentence. So, while it is true that if Defendant violated her probation
Defendant's prior conviction from 2006, although still undesignated, was a felony for all purposes under state law unless and until it was designated a misdemeanor. Therefore, it could have been deemed an aggravating circumstance because it had been less than 10 years since that offense. See A.R.S. § 13-701(D)(11). However, no findings were made during Defendant's 2014 sentencing hearing regarding her prior felony conviction, nor were any made during the initial appearance regarding the petition to revoke probation on February 12, 2019. Additionally, it appears from the record that Defendant did not admit to having any prior felony convictions. Defendant avowed in her plea agreement in 2014 that she had no prior felony convictions except those in any "Allegation of Prior Conviction" filed in her 2014 case. No such "Allegation of Prior Conviction" seems to have been filed with the sentencing court.
Without any findings of aggravating circumstances or admission by Defendant of a prior felony conviction, this Court cannot find that at the time of her 2014 convictions, Defendant faced more than the presumptive sentence.
Accordingly, based on the foregoing analysis, the undersigned RECOMMENDS that the District Court enter an order GRANTING Defendant's Motion to Dismiss Superseding Indictment with Prejudice. (Doc. 26).
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number:
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.
