United States v. Abel Montoya-Gaxiola

MEMORANDUM

Abel Montoya-Gaxiola (“Abel”) appeals his enhanced sentence, pursuant to 18 U.S.C. § 922(g)(5)(A) and U.S.S.G. § 2K2.1(b)(6)(B), for possession of a firearm or ammunition by an illegal alien in connection with another felony offense. Abel, his brother Rosario Montoya-Gaxiola (“Rosario”), and Fermín Ruiz-Braca-montes (“Ruiz”) were apprehended in the Arizona desert with or near blankets, large backpacks with significant food rations, a radio scanner, multiple cellular telephones, three firearms, and ammunition. All three made statements to border patrol agents.

They were each charged with illegal reentry and firearm possession, and various drug and firearm conspiracy charges. Ruiz pled guilty to certain charges and, as part of his plea agreement, the Government dismissed the others. The Montoya brothers pled guilty to illegal reentry, but went to trial on the other charges against them.

After four days of Government testimony, the district court directed a verdict in favor of the Montoya brothers on the conspiracy charges. Although the district court stated' that the Montoya brothers were clearly “up to no good,” it found that the Government had offered insufficient…