United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING UNITED
STATES' REQUEST FOR AN UPWARD VARIANCE
MATTER is before the Court on the United States of
America's Sentencing Memorandum filed on December 1, 2016
(Doc. 32), in which the government seeks an upward variance
to a sentence of imprisonment of 96 months. Having considered
all the factual and legal matters presented in the extensive
record before this Court, as well as the arguments presented
at the hearing on June 5, 2017, this Court has determined
that an upward variance from the Sentencing Guidelines is
justified; however, the Court will hear any final sentencing
arguments from counsel at the sentencing hearing which the
Court anticipates setting in Las Cruces when the Court
travels there the week of August 21, 2017. The Court notes
that the United States is requesting that the Defendant be
sentenced to a term of 96 months' imprisonment, which
would constitute an upward variance of 25 months above the
high end of Defendant's sentencing guideline range of 57
to 71 months.
March 14, 2016, Defendant Candelario Ayala, Jr. pled guilty
to a one-count Information, charging Felon in Possession of a
Firearm in violation of 18 U.S.C. § 922(g)(1), 18 U.S.C.
§ 924(a)(2). Subsequently, the probation office prepared
Defendant's presentence report (“PSR”). The
PSR determined Defendant's base offense level to be 24.
See United States Sentencing Guidelines Manual
(“Guidelines”) § 2K2.1. Based on the total
offense level of 21and a criminal history category of IV, the
PSR set forth Defendant's advisory Guidelines
imprisonment range at 57 to 71 months.
government alleges that the following circumstances warrant
an upward variance: On October 23, 2015, Defendant kidnapped
his ex-girlfriend Lezlie Monreal at gunpoint, and during this
event Defendant fired one round from his gun into the floor
of Ms. Monreal's residence. This incident started the
investigation that resulted in Defendant being charged for
being a felon in possession of a firearm.
hearing on June 5, 2017, the parties fleshed out the
circumstances surrounding the October 23, 2015 incident. The
government claims after Defendant forced Ms. Monreal into his
vehicle, a maroon Suburban, he drove her at gunpoint to a
trailer in Canutillo, Texas where he sexually assaulted her.
The government called the case agent, Special Agent Bryce
Fankhauser of the FBI, to testify at length as to what he had
learned from Ms. Monreal and other witnesses. Special Agent
Fankhauser explained that on October 23, 2015, Ms. Monreal
went to her mother Norma Avalos' home, located at 916
McKinley in Anthony, New Mexico (the “McKinley
Residence”). Defendant arrived at the residence with a
gun shouting Ms. Monreal's name, pushed his way into the
residence, and shot a round into the floor. Special Agent
Fankhauser testified that the spent shell casing was never
located because it hit a steel beam that runs laterally
underneath the home and shattered into numerous pieces. There
was a significant amount of debris and trash underneath the
residence that would have concealed the pieces of the bullet.
The same day, Special Agent Fankhauser took photographs of
the scene, which show a small hole in the floor of the home
surrounded by fresh particles of floorboard.
Agent Fankhauser explained that Ms. Monreal's mother,
fourteen-year-old sister, eleven-year-old cousin, and
ten-year-old brother were inside the residence when Defendant
fired his gun. Defendant forced Ms. Monreal into his
Suburban, and drove her to Canutillo, Texas to a trailer
where Defendant's brother, Sergio Ayala, and girlfriend,
Crystal Ludwig, were staying (the “Canutillo
Residence”). Defendant then sexually assaulted Ms.
Monreal throughout the night of October 23, 2015.
in the morning of October 24, 2015, FBI agents went to the
home of Defendant's aunt, Juana Ayala, in an attempt to
locate Defendant and Ms. Monreal. Ms. Ayala agreed to assist
law enforcement by calling Defendant's cell phone. Ms.
Monreal spoke with Ms. Ayala from Defendant's phone and
told Ms. Ayala that she was not in danger, and that she did
not wish to speak with the FBI because she was worried about
her immigration status. At the hearing, Ms. Ayala explained that
when she asked Ms. Monreal if Defendant had kidnapped her,
Ms. Monreal started laughing and said that he had not.
called Ms. Ludwig to testify as to her memory of the night of
October 23, 2015 and early morning hours of October 24, 2015.
Ms. Ludwig testified that she and her boyfriend Mr. Ayala
were in the yard of the Canutillo Residence when Ms. Monreal
and Defendant arrived, and Ms. Monreal did not appear to be
in any danger or to be there involuntarily. Later that night,
Defendant and Ms. Monreal left together in the Suburban to
pick up McDonald's and the four of them ate together. FBI
agents contacted Ms. Ludwig early in the morning on October
24, 2015, and she agreed to go check on Ms. Monreal after
learning agents were looking for Defendant. When Ms. Ludwig
checked on Ms. Monreal in the trailer, Ms. Monreal stated she
was fine and again stated she did not want to speak with law
enforcement. Ms. Ludwig admitted that she was not actually
inside the trailer with Defendant and Ms. Monreal.
that morning, Defendant and Ms. Monreal left the Canutillo
Residence. Defendant told Ms. Monreal to take his Suburban to
Ms. Ayala's house because he knew his aunt was looking
for him. Ms. Monreal left the Canutillo Residence in the
Suburban, without Defendant. She did not drive to Ms.
Ayala's house but instead went back to her mother's
residence. Ms. Avalos called the police. Ms. Monreal first
reported that she had not been in danger and that she had
left with Defendant voluntarily. Ms. Monreal did not
initially wish to speak with Special Agent Fankhauser.
However, Special Agent Fankhauser testified that Ms. Monreal
appeared fragile and frightened, was crying, and had visible
bruising. He testified that she appeared to be withholding
information, which is why he and other officers continued to
press her with questions. At the hearing, Defendant called
Deputy Sheriff Freddy Garcia of the Dona Ana County
Sheriff's Office, one of the officers who initially
investigated the incident, and Deputy Garcia testified that
Ms. Monreal first told officers she was fine and that nothing
had happened between her and the Defendant. However, Deputy
Garcia also explained that Ms. Monreal appeared to be very
frightened and was visibly upset and crying as she was
speaking to him. She eventually revealed that the night
before she had been taken from her mother's home against
her will, and she did not feel that she was free to leave.
After she admitted that Defendant had taken her, she said
that she was not going to tell officers anything else because
he had told her that if she let them know where he was, or
what happened, that he was going to kill her or her mother.
Agent Fankhauser testified that upon further questioning by a
female officer, Ms. Monreal began to discuss the incident in
further detail. She elaborated that she previously said she
was not in danger because she was scared, she had been in
Defendant's presence when making those statements, and
Defendant was still armed with his gun. Ms. Monreal also
reiterated her concerns with her immigration status.
Avalos provided a statement to Dona Ana County Detective
Alfred Sanchez on October 24, 2015. Ms. Avalos' account
of the incident was consistent with what Agent Fankhauser
learned from Ms. Monreal. Ms. Avalos explained that after
Defendant and Ms. Monreal got into the Suburban, Defendant
drove about ten feet, stopped the car, returned to Ms.
Avalos, and told her that he would “come back”
and that “when they mess with me, nobody remains
alive.” He then accelerated the vehicle and left.
Agent Fankhauser further testified that Defendant had
previously threatened violence to Ms. Monreal and her family.
Ms. Monreal told Special Agent Fankhauser that she had seen
Defendant with a gun several times before the October 23
incident. Additionally, many of the witnesses Special Agent
Fankhauser spoke with reported that Defendant was often seen
with a gun, and these witnesses appeared frightened to relay
this information out of fear Defendant would find out.
Special Agent Fankhauser explained that nearly every witness
he spoke with throughout the course of his investigation was
afraid of Defendant, who has a reputation in the Anthony, New
Mexico community as a violent and retributive individual.
October 24, 2015, Ms. Monreal's family transported her to
La Casa, which is a domestic violence shelter located in Las
Cruces, New Mexico. Then, on October 27, 2015, Ms. Monreal
sought treatment at La Piñon located in Las Cruces,
New Mexico, which provides services to victims of domestic
and sexual assault. Ms. Monreal was treated by Ashley Sveum,
RN, who testified at the hearing on June 5, 2017. Nurse Sveum
has been a Sexual Assault Nurse Examiner
(“SANE”) for approximately four years. Ms. Monreal
told Nurse Sveum that she left her mother's home with
Defendant because she was afraid he would hurt her mother.
Once she and Defendant arrived at the Canutillo Residence,
Defendant pulled her hair and kicked and punched her in her
back and neck, and forced her to engage in oral sex. He spat
on her face and she began to cry. He forced her to engage in
various sexual acts throughout the night, and while it was
happening, she was “praying for it to stop.”
Sveum provided a SANE exam, which is a comprehensive exam
available for a victim of a sexual assault and includes
forensic evidence collection. Nurse Sveum stated that Ms.
Monreal was calm and lucid and was not under the influence of
any drugs or alcohol. Nurse Sveum documented nineteen bruises
on Ms. Monreal's body, including on her neck, arms,
breast, thighs, and buttocks. Nurse Sveum determined that the
bruises on Ms. Monreal's arms and neck were consistent
with being grabbed forcefully and strangled as Ms. Monreal
Nurse Sveum testified that Ms. Monreal had an abrasion on her
vagina, which indicated she had been forced to engage in
sexual intercourse. In fact, Nurse Sveum explained that she
had rarely seen such type of vaginal lacerations on her
patients, even after forcible sexual assaults. Nurse Sveum
applied a type of dye called toluidine blue to the
laceration. She explained that toluidine blue adheres to the
skin only if there is in fact a laceration. The toluidine
blue remained on Ms. Monreal's skin, showing a laceration
consistent with the assault Ms. Monreal described.
paints a different picture of what transpired from October 23
to October 24, 2015. While Defendant did not testify, his
counsel presented evidence and argument that he contends
support his position that Ms. Monreal left her residence
willingly, and that the two later engaged in consensual
sexual intercourse. Defendant called a number of witnesses to
testify to this effect, primarily close family members and
friends. Those witnesses also confirmed that Ms. Monreal was
addicted to methamphetamine and that she injected
methamphetamine intravenously. At the hearing, the Defendant
attempted to illustrate Ms. Monreal as a heavy drinker and
partier by introducing numerous photos from Ms. Monreal's
Facebook account, which depict her drinking alcohol and
gesturing with gang symbols.
also introduced a surveillance video of the McDonald's
drive-through from the night of October 23, 2015 to show that
Ms. Monreal was not in any danger. The video shows two
individuals in the front seat of Defendant's maroon
Suburban, but the Court notes it is difficult to discern what