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United States v. Masters

United States District Court, D. Arizona

August 13, 2019

United States of America, Plaintiff,
v.
Antwanette Marie Masters, Defendant.

          REPORT AND RECOMMENDATION

          ERIC J. MARKOVICH UNITED STATES 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Criminal Charge

         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 December 12, 2014, ANTWANETE MARIE MASTERS was convicted of Solicitation to Unlawfully Possess a Narcotic Drug an undesignated Class 6 Felony, which is punishable by a term of imprisonment exceeding one year.
On February 9, 2019, Tohono O'odham Police (TOPD) officers were called to the Desert Diamond Casino on Nogales Highway after ANTWANETE MARIE MASTERS attempted to claim a wallet, which had been turned over to the casino's security unit. The casino was able to identify MASTERS based on her Arizona Identification card, which she had on file through her casino player's account. The casino's security became concerned when a search of the turned-in wallet had multiple identification cards, credit cards and a piece of foil with burnt residue. Security advised MASTERS that TOPD would be called to verify ownership of the identification and credit cards before the wallet could be released to MASTERS. MASTERS informed the security officer that she owned a boarding home and the identification and credit cards belonged to her clients. MASTERS remained on the casino's property. An officer with TOPD arrived, spoke with security, retrieved the wallet, and found the identification and credit cards and the piece of foil with burnt residue. A records check revealed that MASTERS had an active felony warrant out of the Tucson Police Department.
The TOPD officer attempted to find MASTERS and found her in the casino's parking lot sitting between a vehicle and covered plumbing pipes. When asked to identify herself, MASTERS verbally identified herself as “Alisha R. Masters”. Police communications advised the officer that “Alisha” was an alias for MASTERS. In the area where MASTERS had been located, the officer found a pink backpack, a black satchel bag and a multi-colored water bottle. The officer asked MASTERS for consent to search the pink backpack and black satchel bag. MASTERS gave the officer consent. While searching the black satchel bag, the officer found one Phoenix Arms, model HP22A, .22 LR caliber semi-automatic pistol, bearing serial number 4406522, and 7 rounds of .22 LR caliber ammunition. After Miranda, the defendant denied the gun was hers and denied having possession of the black satchel bag. A review of the casino's surveillance coverage showed MASTERS approaching and making contact with security personnel at the security desk near the main entrance when she initially attempted to claim the turned-in wallet. In that footage, MASTERS had in her possession a pink backpack, a black satchel bag and a multi-colored water bottle. The Phoenix Arms pistol and ammunition were not manufactured in the state of Arizona and thus, had to have traveled in interstate commerce to be in Arizona.

Id.

         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).

         B. Defendant's Underlying Convictions

         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).

         i. 2006 Conviction

         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, I further agree to waive my right to all trials. This includes any jury determination of aggravating factors beyond a reasonable doubt. I also agree that the Court, using a standard of preponderance of the evidence, may find the existence of aggravating or mitigating factors which may impact my sentence or disposition.

I further agree that the rules of evidence do not apply in the determination of aggravating and mitigating factors.

Id.

         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:

THE COURT: If I accept your plea, there will be a sentencing hearing in about 30 days; and at that time, the Court will decide whether to designate the matter as a felony and to send you to prison or to suspend the imposition of sentence and place you on probation.
I could allow the offense to remain undesignated in which case I would suspend the imposition of sentence and place you on probation.
If you go to prison, the range of sentence will be from a minimum sentence of four months to a maximum sentence of two years. The presumptive or usual sentence is one year.

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:

THE COURT: This is a Class 6 offense. Would you like to get - I'd be glad to give you - honestly, with your - given your age, you're young, and you don't have a felony conviction, and you haven't hurt anybody, I could very easily just go ahead and treat the matter as a ...

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