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United States v. Charley

United States District Court, D. New Mexico

January 3, 2017


          Damon P. Martinez United States Attorney Elaine Y. Ramirez Assistant United State Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          John Van Butcher Assistant Federal Public Defender Office of the Federal Public Defender Albuquerque, New Mexico Attorney for the Defendant.


         THIS MATTER comes before the Court on the Defendant's Objection to Proposed Conditions of Supervised Release, filed April 16, 2015 (Doc. 29)(“Objections”). The Court held a sentencing hearing on April 28, 2015. The primary issue is whether the Court may impose, as a condition to Defendant Alvin Charley's supervised release, continued payment toward the remaining balance of restitution owed in a different criminal matter, United States v. Charley, No. CR 10-1732 JB. The Court concludes that such continued restitution payment in a different criminal matter is a valid condition of supervised release. The Court will thus overrule Charley's Objections and impose the condition.


         In a Plea Agreement, filed January 28, 2015 (Doc. 26)(“Plea Agreement”), Charley admitted the following facts:

On the evening of August 15, 2014, at 95 Lobo Valley Road, Pinedale, New Mexico which is within the exterior boundaries of the Navajo Nation, Alvin Charley began yelling at John Doe. John Doe, who was standing in front of his home, just 133 feet from Charley's residence, responded for Alvin Charley to bring it on. Both men had been drinking alcohol. Alvin Charley believed that John Doe owed him for the time he spent in jail. John Doe responded that Alvin Charley owed him for stabbing him on a previous occasion. Alvin Charley walked from his house to John Doe's house as family members tried to keep them apart. Alvin Charley had a knife in his right hand. The two men began fighting. Alvin Charley and John Doe fell to the ground. When they got off the ground, blood was seen coming from John Doe's chest. The fight continued around to the northern side of John Doe's house. Family members continued to try and separate Alvin Charley and John Doe. Alvin Charley walked off. Family members helped John Doe into a car. John Doe said that he was hot and needed to get out. He was removed and lay on the ground next to the car, where he died. On August 17, 2014, the Office of Medical Investigators autopsy of John Doe showed that he died from a single stab wound to his chest (left). The stab wound hit his lung, and nicked the pericardium sack, which the heart sits in. Approximately 1, 500 ml of blood was removed from his chest cavity. Alvin Charley and John Doe are registered members of the Navajo Indian Tribe.

         Plea Agreement ¶ 6, at 3-4. The John Doe in the plea agreement is a victim named Leo Cayaditto. See Presentence Investigation Report ¶ 11, at 3, disclosed April 7, 2015 (“PSR”).

         Additionally, before the present criminal conduct, on December 7, 2010, Charley pleaded guilty -- in criminal matter United States v. Charley, No. CR 10-1732 JB -- to:

On or about May 12, 2010, I stabbed Leo Cayaditto in the chest and right side of his abdomen with a knife. As a result of my actions, Mr. Cayaditto suffered injuries that were life threatening and caused him extreme physical pain. I further admit that, in stabbing Mr. Cayaditto, I was not exercising lawful self-defense because the force I used was in excess of that reasonably necessary under the circumstances. The stabbing occurred in Pindale, New Mexico, on land that was within the exterior boundaries of the Navajo Nation. I am an enrolled member of the Navajo Nation and am “Indian” as defined by federal law.

United States v. Charley, No. CR 10-1732 JB, Plea Agreement, filed December 7, 2010 (Doc. 24). Pursuant to that Plea Agreement, the Court sentenced Charley to 18 months incarceration and ordered Charley pay $12, 742.69 in restitution to the New Mexico Human Services Department (Medicaid). See PSR ¶ 57, at 10. “A total of $12, 642.69 remains owed in restitution.” PSR ¶ 57, at 10.


         On September 23, 2014, Charley was charged by a grand jury with: “On or about August 15, 2014, in Indian Country, in McKinley County, in the District of New Mexico, the defendant . . . an Indian, with malice aforethought, did unlawfully kill John Doe by stabbing him. In violation of 18 U.S.C. §§ 1153 and 1111.” Indictment at 1, filed September 23, 2014 (Doc. 14). On January 18, 2015, an Information was filed charging Charley with Voluntary Manslaughter, in violation of 18 U.S.C. §§ 1112(a) and 1153, occurring on August 15, 2014, in McKinley County. See Information at 1, filed January 28, 2015 (Doc. 23). On January 28, 2015, Charley pled guilty to the Information. See Plea Agreement ¶ 6, at 3-4. Charley “entered into a written plea agreement pursuant to Rule 11(c)(1)(c) of the Federal Rules of Criminal Procedure stipulating to a specific sentence of 120 months.” PSR ¶ 5, at 3. The PSR provides that the “defendant agrees that, as part of the defendant's sentence, the Court will enter an order of restitution pursuant to the Mandatory Victim's Restitution Act, 18 U.S.C. 3663A.” PSR ¶ 6, at 3. Charley agrees to “waive all rights conferred by 18 U.S.C. § 3742.” PSR ¶ 7, at 3.

         In the PSR, the United States Probation Office (“USPO”) calculated Charley's base offense level at 29, under U.S.S.G. § 2A1.3. See PSR ¶ 43, at 8. The PSR notes a 2-level reduction pursuant to U.S.S.G. § 3E1.1(a) for accepting responsibility and a 1-level reduction pursuant to U.S.S.G. § 3E1.1(b) for timely notifying authorities of an intention to enter a guilty plea. See PSR ¶¶ 50-51, at 8. The PSR notes that Charley's total offense level is 26. See PSR ¶ 52, at 8. Based on prior convictions for battery, person under the influence of intoxication liquor or drugs, no driver's license, and assault resulting in serious bodily injury, the PSR calculates a criminal history score of 3, which results in a criminal history category of II. See PSR ¶¶ 54-59, at 9-12. The PSR notes that the Guidelines imprisonment range for an offense level of 26 and a criminal history category of II is 70 to 87 months. See PSR ¶ 121, at 22. The PSR also notes that it does not appear as though Charley has the ability to pay any fine. See PSR ¶ 119, at 22. In addition to other mandatory, standard, and special conditions of supervised release, the PSR also recommends, as a special condition, that Charley “continue to make payments towards the remaining balance of restitution owed in Case No.: 1:10CR001732-001 JB.” Attachment A to the Presentence Investigation Report, disclosed April 7, 2015 (“Conditions of Supervised Release”).

         Charley makes two objections to the PSR. First, Charley objects to the “conditions that he must, as condition of his Supervised Release, and under penalty of incarceration . . . ‘continue to make payments towards the remaining balance of restitution owed in Case No.: 1:10CR001732-001 JB.'” Objections at 1 (citing Conditions of Supervised Release). In support of the Objection, Charley argues that “the Court does not have the authority under the Mandatory Victim's Restitution Act[1] to make the prior restitution order a condition of Supervised Release in the instant case.” Objections ¶ 7, at 3. Charley contends that the Court lacks authority to impose the condition because, “upon termination of his last Supervised Release term, the prior restitution order became a civil judgment against Mr. Charley with no greater priority than his other debt.” Objections ¶ 7, at 3. Accordingly, “while 18 U.S.C. § 3664 allows for a wide range of enforcement options, it does not provide authority for the Court to order it as a condition of Supervised Release with the threat of incarceration and making it a higher priority than other debt in a subsequent case.” Objections ¶ 7, at 3.

         In addition, according to Charley, 18 U.S.C. § 3563(b)(2) authorizes the Court only to “enter a discretionary condition of Supervised Release[] that requires as a condition of Supervised Release that the defendant make restitution to the instant victim or his family arising from current offense.” Objections ¶ 8, at 3. In turn, Charley argues, it would appear that 18 U.S.C. § 3664(k) would require a defendant to inform the Court and the Attorney General of any material changes [in] economic circumstances. Thus, an inquiry into the defendant's finances during his term of Supervised Release appears to be appropriate. However, the prohibition upon incurring new credit charges or opening new lines of credit is not listed as a discretionary condition of Supervised Release pursuant to 18 U.S.C. § 3563(b)(2).

         Objections ¶ 8, at 3-4. Charley's argument, then, is essentially that the Court “does not have the authority to order as a condition . . . an outstanding debt in an old case . . . nor can the Court prioritize Mr. Charley's creditors with some being able to use the fear of incarceration to collect its debt.” Objections ¶ 9, at 4.

         Second, Charley objects to the “imposition of any fine.” Objections at 1. In support of that Objection, Charley primarily argues that he lacks the “resources” and “employment prospects” to service such a fine. Objections ¶ 13, at 5. Essentially, Charley argues “a court cannot constitutionally imprison a defendant for a debt he is unable to pay.” Objections ¶ 13, at 5. Further, Charley notes that the PSR provides that it does not appear as though Charley has the ability to pay any fines. See PSR ¶ 119, at 22.

         The USPO disclosed two addenda to the PSR. The USPO's Second Addendum to the Presentence Report, disclosed June 26, 2015 (“Second Addendum”), addresses an issue involving Medicaid restitution, which is not related to the present dispute. In the first Addendum to the Presentence Report, disclosed April 27, 2015 (“First Addendum”), however, the USPO responds to Charley's Objections to the Conditions of Supervised Release and to the possible imposition of a fine. See First Addendum at 1. The First Addendum provides that, “[p]ursuant to 18 U.S.C. 3583(d), a federal court may impose, as a condition of supervised release, any condition set forth as discretionary condition of probation in section 3563(b) and any other condition it considers to be appropriate.” First Addendum at 1 (internal quotation marks omitted). The First Addendum asserts that, so long as the condition is “reasonably related to the factors set forth in section 3553(a)(1) and (a)(2), ” the condition is valid. First Addendum at 1. The USPO provides:

In considering 18 U.S.C. 3553 factors, the probation office notes the defendant was previously on supervised release for stabbing the same victim and fell behind on restitution payments. When his term of supervised release was revoked, he had not fulfilled his outstanding restitution obligation. In light of the similarity of charges to the instant offense and the defendant's nonpayment of restitution for his prior federal conviction, the probation office believed the outstanding restitution is reasonably related to the instant offense. Further, the [USPO] is not recommending a new sentence of restitution be imposed that incorporates the outstanding restitution debt. Rather, the probation office recommends imposition of a condition of supervised release that directs the defendant to pay the outstanding restitution.

         First Addendum at 1. The First Addendum then, with respect to imposition of a fine, maintains what the PSR states -- that Charley “does not have the ability to pay a fine.” First Addendum at 1.

         The Court held a sentencing hearing on July 8, 2014. See Transcript of Hearing (taken July 8, 2014)(“Tr.”).[2] At the hearing, Charley first made “sure it's clear to the Court that we would object to any fine but as to the guidelines calculations and material statements in the presentence report we have no objection.” Tr. at 2:19-23 (Butcher). The Court then turned argument to Charley's Objections to the Conditions of Release. See Tr. at 4:15-17 (Court). The Court explained that it had reviewed case law from the United States Court of Appeals for the Fifth Circuit, a case called United States v. Love, 431 F.3d 477 (5th Cir. 2005), which said

the single narrow issue in this case is whether a court can impose as a condition of supervised release that the defendant pay the unpaid restitution ordered as part of a sentence by another Federal Court in another federal case. And they held that in that case the Court could do it in the second case.

         Tr. at 5:11-17 (Court). The Court noted, however, that, in that Fifth Circuit case, “the supervised release in the first case was still ongoing . . . so it is distinguishable at least on that point.” Tr. at 5:20-23 (Court). The Court next described a United States Court of Appeals for the Second Circuit case, called United States v. Gill, 523 F.3d. 107 (2d Cir. 2008), which cites United States v. Love and holds that there was no error in the district court's imposition of a condition of release of making continued restitution payments in another case. See Tr. at 6:3-8:14 (Court).

         Charley disagreed with the Court, stating that “how I read 3563(B)(2) is that a condition of supervision [is] a condition of supervision [in] the instant case[;] the Court can order the payment of restitution as a condition. And I think that's specifically listed in the discretionary conditions that Congress put in the statute.” Tr. at 8:15-25 (Butcher). Charley argued Congress “didn't make what the Court wants to do possible.” Tr. at 12:1-4 (Butcher). In fact, Charley argued, Congress instead created a “litigation unit in the United States Attorneys' Office” that is aimed at collecting the debt owed as restitution in the other case -- that is, Congress chose to address uncollected restitution debt in a different, comprehensive manner. See Tr. at 12:15-13:4 (Butcher). Additionally, Charley asserted,

more interesting, what has not been argued, even if the Court does have discretion to do this, what I've not heard from the probation office is how this relates to a 3553 factor, which all conditions of supervised release must do. Other than saying it's the same victim and same defendant.

         Tr. at 14:3-10 (Butcher). Charley concluded by noting that Congress has “specifically dealt with” this situation

when they created the financial litigation unit, and you noticed this turn[ed] into a civil debt and given this financial litigation unit all the civil tools to enforce it. I would say that's a comprehensive scheme that no longer gives this Court its discretion to impose this [as] a condition of supervised release. And more importantly, it does not fit into any 3553(a) factors. . . .

         Tr. at 17:1-14 (Butcher).

         The United States disagreed with Charley, providing that “the Court can and should include [the condition] as a discretionary factor in the defendant's . . . sentencing. . . .” Tr. at 17:20-25 (Ramirez). The United States argued: “[I]t is related [to the] 3553 factors in that it demonstrates the history and characteristics of this defendant . . . this defendant in particular with this victim . . . .” Tr. at 18:9-19 (Ramirez). Charley then resumed argument and maintained that “as a matter of discretion the Court shouldn't” impose a condition of supervised release to continue payment toward restitution in an unrelated matter. Tr. at 25:8-12 (Butcher). The Court indicated that on the issue of

whether I can do it, I think if I were to go the defendant's way, I would be splitting with the Fifth and Second Circuit. And I think based on the Fifth and Second Circuit decisions, and also 3614, which says you can imprison[] defendants for failure to pay restitution . . . I just don't see a good reason why I should break with the Second and Fifth Circuits.

         Tr. 27:1-10 (Court). Further, “these crimes are . . . about as related as crimes get when you have two of them. And so I think whatever payment in the prior case is [it is] reasonably related to this offense.” Tr. at 27:11-15 (Court). The Court accordingly imposed as a condition of supervised release the continued payment of restitution in the related matter, but did not impose a fine. See Tr. at 39:5-10; id. 40:2-3 (Court).


         In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1976 (the “Act”), thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Act intact, including 18 U.S.C. § 3553: “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. at 261.

         Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary” to comply with four statutorily defined purposes enumerated in § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . .

18 U.S.C. § 3553(a)(2)(A)-(D).

[A] defendant who has been found guilty of an offense described in any Federal statute . . . shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

18 U.S.C. § 3551. To achieve these purposes, § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the offense's nature and the defendant's character; (iii) the available sentences; (iv) a policy favoring uniformity in sentences for defendants who commit similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

         Although the Guidelines are no longer mandatory, both the Supreme Court and the Tenth Circuit have clarified that, while the Guidelines are one of several factors enumerated in § 3553(a), they are entitled to considerable deference. See Rita v. United States, 551 U.S. 338, 349 (2007)(“The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill statutory mandate.”); United States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006)(describing the Guidelines as more than “just one factor among many”). They are significant, because “the Guidelines are an expression of popular political will about sentencing that is entitled to due consideration . . . [and] represent at this point eighteen years' worth of careful consideration of the proper sentence for federal offenses.” United States v. Cage, 451 F.3d at 593 (internal quotation marks omitted). A reasonable sentence is one that also “avoid[s] unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. at 261-62.

         The Tenth Circuit has “joined a number of other circuits in holding that a sentence within the applicable Guidelines range is presumptively reasonable.” United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006), overruled on other grounds by Rita v. United States, 551 U.S. 338, 349 (2007), as recognized in United States v. Zamora-Solorzano, 528 F.3d 1247, 1251 n.3 (10th Cir. 2008). This presumption, however, is an appellate presumption and not one that the trial court can or should apply. See Rita v. United States, 551 U.S. at 351; Gall v. United States, 552 U.S. 38, 46-47 (2007); Kimbrough v. United States, 552 U.S. 85, 90-91 (2007). Instead, the trial court must undertake the § 3553(a) balancing of factors without any presumption in favor of the advisory[3] Guidelines sentence. See Rita v. United States, 551 U.S. at 351; Gall v. United States, 552 U.S. at 46-47; Kimbrough v. United States, 552 U.S. at 90-91.

While the Supreme Court's decision in United States v. Booker has given the sentencing court discretion that it did not have earlier, the sentencing court's first task remains to accurately and correctly determine the advisory-guideline sentence. Thus, before the sentencing court takes up a defendant's Booker arguments, the sentencing court must first determine whether the defendant is entitled to downward departures. The sentencing court may, however, also use these same departure factors in the Booker calculus, even if the court does not grant a downward departure.

United States v. Apodaca-Leyva, 2008 WL 2229550, at *6 (D.N.M. 2008)(Browning, J.). The Supreme Court recognized, however, that the sentencing judge is “in a superior position to find facts and judge their import under § 3553(a) in each particular case.” Kimbrough v. United States, 552 U.S. at 89. Applying § 3553(a)'s factors, the Court has found that the case of an illegal immigrant who re-enters the United States to provide for his two children and two siblings was not materially differentiated from other re-entry cases, and, thus, no variance from the Guidelines sentence was warranted. See United States v. Alemendares-Soto, 2010 WL 5476767, at *12 (D.N.M. 2010)(Browning, J.). On the other hand, in United States v. Jager, 2011 WL 831279 (D.N.M. 2011)(Browning, J.), although the defendant's military service was not present to an unusual degree and, thus, did not warrant a departure, the Court found that a variance was appropriate, because the defendant's military service was “superior and uniformly outstanding, ” as the defendant appeared to have been “trustworthy[] and dedicated, and he served with distinction.” 2011 WL 831279, at *14.


         In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court reaffirmed the principle that it is permissible for sentencing judges “to exercise discretion -- taking into United States v. Nolf, 2014 WL 3377695, at *20-21 (D.N.M. 2014)(Browning, J.)(emphasis in original). consideration various factors relating both to offense and offender -- in imposing judgment within the range prescribed by statute.” 530 U.S. at 481. The Supreme Court cautioned, however, that the Constitution of the United States of America limits this discretion and that the Sixth Amendment to the Constitution requires that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. at 490. In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court elaborated on its holding in Apprendi v. New Jersey, stating that the “statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303 (emphasis, citations, and internal quotations omitted). In United States v. Booker, the Supreme Court held that, because the sentencing guidelines are no longer mandatory, “Apprendi does not apply to the present advisory-Guidelines regime.” United States v. Ray, 704 F.3d 1307, 1314 (10th Cir. 2013). See United States v. Booker, 543 U.S. at 259 (“[W]ithout this provision [of the Guidelines statute] -- namely, the provision that makes the ...

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