United States v. Olmeda, No. 15-3449 (2d Cir. 2018)Annotate this Case
New York authorities arrested Olmeda for attempted murder, attempted assault on a police officer with a deadly weapon, attempted assault, and criminal possession of a weapon. Olmeda had two firearms in his possession. Later searches of his home and storage locker revealed more than 20 additional firearms. While state proceedings were ongoing, a federal grand jury indicted Olmeda as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), and for possession of unregistered firearms, 26 U.S.C. 5845, 5861(d). Olmeda pleaded guilty to the six federal counts. The government argued that Olmeda should receive a four‐level enhancement under U.S.S.G. 2K2.1(b)(6) because he used one of the firearms in connection with another felony offense—the altercation with the New York police officers (relevant conduct enhancement). Olmeda asked that his federal sentence be concurrent with any term of imprisonment for the pending state charges, citing U.S.S.G. 5G1.3. The court declined to order a concurrent sentence, then held a “Fatico hearing” and concluded that the government had proven the state offenses for the relevant conduct enhancement by a preponderance of the evidence. The district court applied that increase and calculated a Guidelines range of 121-151 months, and sentenced him to 151 months. Olmeda had not yet been convicted in state court. The Second Circuit vacated. Section 5G1.3(c) applies where state charges for relevant conduct are pending at the time of the federal sentencing.