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United States v. Jones

United States District Court, D. New Mexico

August 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON L. JONES, Defendant.

          MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND OVERRULUNG IN PART DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT

         THIS 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).[1] Having reviewed the pleadings, and heard the testimony and arguments of counsel, the Court SUSTAINS in part and OVERRULES in part[2]Defendant's objections to the Presentence Report (PSR).

         BACKGROUND

         Given 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[3] 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.[4] 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[5].

         On June 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.

         DISCUSSION

         I. Defendant's Objections to Information in the PSR

         Before 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.

         A. Threat of Rape

         Paragraph 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 sexual offender.

         The 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.

         The 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.

         B. Alleged Escape Attempt from Santa Fe County Correctional Facility

         Second, 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.

         II. Defendant's Objections to ...


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