United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND
OVERRULUNG IN PART DEFENDANT'S OBJECTIONS TO THE
MATTER comes before the Court following a sentencing hearing
on August 2, 2017, regarding Defendant Brandon L. Jones'
Objections to Fourth Addendum to Presentencing Report and
Sentencing Memorandum in Support of a Downward Departure,
filed June 18, 2017 (Doc. 266). Having reviewed the pleadings,
and heard the testimony and arguments of counsel, the Court
SUSTAINS in part and OVERRULES in partDefendant's
objections to the Presentence Report (PSR).
the voluminous filings to date, the Court assumes the
parties' familiarity with the facts underlying this
action. However, the Court highlights relevant procedural
developments. On December 1, 2015, Defendant filed an Amended
Motion To Vacate, Set Aside or Correct Sentence Pursuant to 28
U.S.C. § 2255 (Doc. 214), which was based on ineffective
assistance of counsel in failing to file an appeal by
Defendant's prior counsel of record. On January 18, 2017,
the Court ordered the Motion be granted, and set for
resentencing. Based on this decision, the United States
Probation Office subsequently filed Third, Fourth, and Fifth
Addenda to the PSR. The United States Probation Office
maintains that Defendant's offense level is 38, which
combined with a criminal history category of III, establishes
a guideline imprisonment range of 292 months to 365 months.
The Government agrees with the United States Probation
Office's revised guidelines calculation. Defendant does
not take issue with Probation's determination that
Defendant's criminal history category is III; however,
Defendant objects to Probation's determination that
Defendant's offense level is 38 and argues that
Defendant's offense level instead should be 33 although
the Court believes Defense counsel meant to say
Defendant's offense level should be level 32 because
Defendant objects to the two level increase for victim injury
in paragraph 33 of the PSR, objects to the two level increase
for obstruction in paragraph 36 and objects to Defendant not
receiving a two level decrease for acceptance of
responsibility in paragraph 38. Thus, the Court understands
Defendant to be arguing that his adjusted offense level
should be six levels lower from Probation's calculation
of offense level 38. Stated another way, Defendant argues
that his correctly calculated sentencing guideline range to
be offense level 32, criminal history category III which
would result in a guideline sentencing incarceration range of
151 to 188 months.
18, 2017, Defendant filed a Sentencing Memorandum. Doc. 266.
The Government filed a response on June 26, 2017. Doc. 270.
The Court held a hearing on August 2, 2017, to address
Defendant's objections to the PSR.
Defendant's Objections to Information in the PSR
turning to Defendant's objections to the guidelines
sentencing range as set forth in the PSR, the Court addresses
Defendant's objections to some of the language contained
in the PSR. For the reasons that follow, the Court sustains
Defendant's objection to paragraph 17 of the PSR, and
certain language in that paragraph will be stricken. The
Court has already overruled Defendant's objection to
paragraph 54. See Order Reversing Court's Prior
Ruling Regarding Paragraph 54 of the Presentence Report (Doc.
281) which the Court incorporates by reference herein.
Threat of Rape
17 of the PSR establishes that after Defendant and his
Co-Defendant, Jesus Manuel Gallegos, kidnapped victim Javier
Carlos Vasquez, Defendant “told Mr. Vasquez he should
just shoot him, or maybe rape him.” At the August 2,
2017 hearing, defense counsel explained that the reference to
a threat of rape has significantly impeded Defendant's
rehabilitation efforts. Defendant is essentially being
treated as a sexual offender despite the uncontroverted fact
that he has never been found guilty for any sexual offense.
Moreover, the victim in this case did not mention the alleged
threat of rape in his victim impact statement. See
Doc. 183. Defendant likens his situation to that in Brown
v. Montoya, 662 F.3d 1152, 1157-58 (10th Cir. 2011),
where the defendant alleged he was wrongly directed to
register as sex offender and placed in sex offender probation
unit. The Tenth Circuit held the defendant could sustain
certain constitutional claims based on his erroneous
classification as a sex offender. See Id. at
1170-72. Defendant argues that as in Brown, he has
been improperly labeled as a sexual predator by the Bureau of
Prisons due to the language in the PSR, which affects the way
he is classified in federal custody. He is limited to where
he can be placed, and he is housed with inmates who actually
have committed sexual offenses. He has also received repeated
threats to his life based on the assumption that he is a
Government argues in response that although Defendant has
never been charged with any sexual crime, it is also true
that Defendant did threaten to rape the victim, and the
threat is a necessary part of the record. The Government
maintains that to strike the statement from the PSR would be
to eliminate a fact underlying this case, which should not be
done simply because the consequences have been inconvenient
for Defendant's period of incarceration.
Court agrees with Defendant that the language regarding the
threat of rape should be stricken from the PSR because it has
caused Defendant significant hardships during his
incarceration. Defendant has no history of sexual offenses or
any noted propensity to commit sexual offenses. The Court is
sensitive to the trauma the victim faced during the course of
the kidnapping and beating, but the Court does understand why
Defendant's alleged statement that “maybe [he
should] rape him” needs to be removed from the PSR,
particularly because it is causing Defendant issues in terms
of classifying him as a sexual criminal, when he should not
be. Defendant is guilty of the crimes of kidnapping and
aiding and abetting and during the course of the kidnapping
the victim was beaten. Accordingly, the Federal Bureau of
Prisons (“BOP”) should classify Defendant
consistent with inmates who have been found guilty of similar
violent crimes and attempted escapes; however, Defendant
should not be classified by the BOP as a sex offender.
Therefore, the Court sustains Defendant's objection to
certain language in paragraph 17 of the PSR.
Alleged Escape Attempt from Santa Fe County Correctional
Defendant objects to paragraph 54 of the PSR, which
references Defendant's alleged attempted escape from the
Santa Fe County, New Mexico, Correctional Facility. The Court
addressed this objection in a separate Memorandum Opinion and
Order (Doc. 281), and will not repeat the discussion here
other than to note that the Court found there was a
preponderance of the evidence showing Defendant attempted to
escape from the Santa Fe County facility on June 25, 2013.
Accordingly, the Court overruled Defendant's objection to
paragraph 54 of the PSR. See generally Doc. 281.
Defendant's Objections to ...