United States District Court, D. Alaska
PROCEEDINGS: ORDER FROM CHAMBERS
HONORABLE TIMOTHY M. BURGESS JUDGE
The
matter comes before the Court on the imposition of sentence
for Defendant Michael Saofaga. Saofaga pleaded guilty to
being a felon in possession of a firearm, a violation of 18
U.S.C. § 922(g)(1).[1] On the night of September 18, 2018,
officers with the Anchorage Police Department
(“APD”) were conducting surveillance on the
Springhill Suites in Anchorage, Alaska to execute an arrest
warrant on Saofaga and his associate Brandi
Hardon.[2] Saofaga was contacted by officers outside
of the hotel and then fled on foot. Saofaga ran across the
hotel parking lot and was pursued by a police K9 and Officer
Christopher Nelson, a K9 handler with APD.[3] During the chase,
Saofaga was observed to have an object in his
hand.[4] As the pursuit continued, Officer Nelson
identified the object as a handgun.[5] Saofaga was eventually
apprehended by APD officers.[6]
U.S.
Probation, in its Final Presentence Report
(“PSR”), and the United States, in its Sentencing
Memorandum, allege that in the course of his flight, Saofaga
attempted to discharge the prohibited firearm in the
direction of the pursuing officers.[7] Based on this alleged
conduct, the PSR asserts that Saofaga is subject to a
four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B),
which applies where a defendant “used or possessed any
firearm or ammunition in connection with another felony
offense”-in this case an assault.[8] Additionally,
because Saofaga allegedly assaulted persons he knew or had
reasonable cause to believe were law enforcement officers
during the course of the offense, the PSR adds an additional
six-level increase to Saofaga's offense level pursuant to
U.S.S.G. § 3 A1.2(c)(1).[9] Taking these two enhancements
into account, as well as other adjustments, Saofaga's
total offense level is listed as 23.[10] Correlating with a
criminal history category of IV, Saofaga's resulting
sentencing range is 70 to 87 months.[11] However, Saofaga argues
that the United States has failed to prove that during the
course of his flight, he committed assault, let alone assault
on a person he knew to be law enforcement.[12]
On
November 5, 2019, the Court held an evidentiary hearing to
establish the underlying facts applicable to the two
enhancements.[13] Several witnesses were called, including
Officer Nelson.[14]The Parties submitted their closing
arguments as written filings.[15] While the United States relies
heavily on the testimony of Officer Nelson, Saofaga primarily
relies on images taken from security cameras, which captured
part of the incident.[16]
As a
threshold matter, the Court must first determine the standard
of proof for the enhancements at issue in this case.
“The burden of proof for a factual finding underlying a
sentencing enhancement depends on the magnitude of the
finding's effect on the sentencing
range.”[17]Generally, an enhancement need only be
supported by a preponderance of the evidence.[18]However, in
cases where there is “an extremely disproportionate
impact on the sentence, ” the United States must
establish the applicable enhancement by clear and convincing
evidence.[19]Enhancements are not always considered in
isolation; the Ninth Circuit has counseled that where
“the combined impact of contested sentencing
enhancements is disproportionate relative to the offense of
conviction, the district court must apply the clear and
convincing evidence standard of proof.”[20]
In
Jordan, the Ninth Circuit identified six
non-dispositive factors courts examine to determine whether
an enhancement is disproportionate: (1) whether the enhanced
sentence falls within the maximum sentence for the crime
alleged; (2) whether the enhanced sentence negates the
presumption of innocence for the crime alleged in the
indictment; (3) whether the facts offered in support of the
enhancement create new offenses requiring separate
punishment; (4) whether the increase in sentence is based on
the extent of a conspiracy; (5) whether the increase in the
number of offense levels is four or less; and (6) whether the
length of the enhanced sentence more than doubles the length
of the sentence authorized by the initial sentencing
guideline range where the defendant would otherwise have
received a relatively short sentence.[21]
This
case involves two related enhancements: U.S.S.G. §
2K2.1(b)(6)(B) and U.S.S.G. § 3A1.2(c)(1). Applying a
four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
based on an assault would increase Saofaga's offense
level to 17. The first, second, fourth, fifth, and sixth
Jordan factors do not apply in this matter. Because
this enhancement is supported by facts of an assault-a
“new” and separate offense-the third factor
weighs in favor of finding a disproportionate impact.
However, given Saofaga's criminal history and resulting
offense level, a four-level enhancement “[does] not
present an ‘exceptional case that requires clear and
convincing evidence.'”[22] Thus, Jordan
counsels that U.S.S.G. § 2K2.1(b)(6)(B) applied alone
need only be supported by a preponderance of the evidence if
applied alone.
However,
applying both U.S.S.G. § 2K2.1(b)(6)(B) and U.S.S.G.
§ 3A1.2(c)(1) to Saofaga's guideline calculation
would result in a ten-level increase. Under these
circumstances, the first, second, and fourth Jordan
factors do not apply. Nevertheless, because assault on a law
enforcement officer is a “new” offense, resulting
in an increase of more than six-levels and more than doubles
Saofaga's sentencing guideline range, the applicable
Jordan factors heavily weigh in favor of finding a
disproportionate sentencing impact. Therefore, U.S.S.G.
§ 2K2.1(b)(6)(B) and U.S.S.G. § 3A1.2(c)(1), if
applied together, must be supported by clear and convincing
evidence.
Here,
having carefully reviewed the evidence on the record, the
Court finds that the United States has not proven by clear
and convincing evidence that both U.S.S.G. §
2K2.1(b)(6)(B) and U.S.S.G. § 3A1.2(c)(1) apply.
Likewise, the United States has not proven by a preponderance
of the evidence that § 2K2.1(b)(6)(B) alone applies.
Accordingly,
the Court HEREBY ORDERS that the PSR be
amended as follows:
1.
Omitting the enhancements under U.S.S.G. §
2K2.1(b)(6)(B) and U.S.S.G. § 3A1.2(c)(1) and, thus,
reducing Saofaga's total offense level to 13.
2.
Omitting facts from the PSR that allege that Saofaga
assaulted law enforcement officers. Specifically, paragraph
1, paragraph 3, paragraph 5, paragraph 9, paragraph 20,
paragraph 21, and paragraph 88 must omit any allegation that
Saofaga pointed a gun at law enforcement officers or
attempted to fire it in their direction.
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