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United States v. Calvert-Cata

United States District Court, D. New Mexico

October 21, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
PETER CALVERT-CATA, Defendant.

          Lucy B. Solimon Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorney for the Plaintiff

          Sylvia A. Baiz Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER[1]

         THIS MATTER comes before the Court on: (i) the Defendant's Objections to Pre-Sentence Report, filed July 13, 2017 (Doc. 40)(“Defendant's Objections”); (ii) the United States' Sealed Objections to Pre-Sentence Report and Response to Defendant's Objections to Pre-Sentence Report, filed July 17, 2017 (Doc. 41); (iii) the United States' Sealed Sentencing Memorandum, filed July 21, 2017 (Doc. 42)(“Sentencing Memorandum”); and (iv) the Defendant's Sentencing Memorandum and Objection to Part of a Special Condition of Supervised Release, filed July 25, 2017 (Doc. 43)(“Defendant's Sentencing Memorandum”). The Court held a sentencing hearing on August 14, 2017. The primary issues are: (i) whether the USSG § 2A3.1(b)(1) 4-level enhancement applies to the guidelines calculation of Defendant Calvert-Cata's sentence; (ii) whether the USSG § 2A3.1(b)(4)(B) 2-level enhancement applies to the guidelines calculation of Calvert-Cata's sentence; (iii) whether the USSG § 3A1.1(b)(1) 2-level enhancement applies to the guidelines calculation of Calvert-Cata's sentence; (iv) whether the USSG § 4B1.5(b)(1) 5-level enhancement applies to the guidelines calculation of Calvert- Cata's sentence; (v) whether the Fifth Amendment to the Constitution of the United States of America prohibits the Court from requiring Calvert-Cata to submit to clinical polygraph examinations, as directed by a probation officer or treatment provider, as a condition of supervised release; and (vi) whether the Court may not require Calvert-Cata to submit to clinical polygraph examinations, as directed by a probation officer or treatment provider, as a condition of supervised release, because polygraph examinations are unreliable. The Court concludes that: (i) the USSG § 2A3.1(b)(1) 4-level enhancement does not apply; (ii) the USSG § 2A3.1(b)(4)(B) 2-level enhancement does not apply; (iii) the USSG § 3A1.1(b)(1) 2-level enhancement applies; (iv) the USSG § 4B1.5(b)(1) 5-level enhancement applies; (v) the Fifth Amendment does not prohibit the Court from requiring Calvert-Cata to submit to clinical polygraph examinations, as directed by a probation officer or treatment provider, as a condition of supervised release; nevertheless, at the time of any polygraph examination, Calvert-Cata may invoke the Fifth Amendment privilege and refuse to answer an incriminating question; and (vi) reliability concerns do not prohibit the Court from requiring Calvert-Cata to submit to clinical polygraph examinations, as directed by a probation officer or treatment provider, as a condition of supervised release. Accordingly, the Court will sustain in part and overrule in part the Plaintiff United States' and Calvert-Cata's respective objections to the Presentence Investigation Report, filed May 12, 2017 (Doc. 35)(“PSR”).

         FACTUAL BACKGROUND

         The Court provides as a factual background those facts that Calvert-Cata admitted in his plea agreement. See Plea Agreement ¶ 8, at 3-4, filed March 6, 2017 (Doc. 32)(“Plea Agreement”). Calvert-Cata admitted:

         On or about August 13, 2016, in Indian Country, in Rio Arriba County, in the District of New Mexico, I, Peter Calvert-Cata, an Indian, unlawfully and

knowingly attempted to engage in a sexual act with Jane Doe. I touched her breasts and genitalia. I then attempted penetration of Jane Doe's genital opening by my finger, with an intent to arouse my sexual desire. I attempted to engage in the sexual act with Jane Doe while I knew she was incapable of appraising the nature of my conduct because she was highly intoxicated by alcohol and marijuana. I did provide the marijuana.

Plea Agreement ¶ 8, at 3-4.

         PROCEDURAL BACKGROUND

         Calvert-Cata pled guilty to a single information charging a violation of 18 U.S.C. §§ 1153 and 2242(2), that being sexual abuse occurring in Indian Country. See Plea Agreement ¶ 3, at 2. The United States Probation Office (“USPO”) disclosed the PSR. See PSR ¶ 1, at 3. The USPO also disclosed Attachment A to the Presentence Report, filed May, 12, 2017 (Doc. 35-1)(“PSR Attachment A”). Both the United States and Calvert-Cata objected to the PSR's application of various sentencing enhancements. See Defendant's Objections ¶¶ 1-4, at 4-5; Sentencing Memorandum at 4. The USPO maintains that it correctly applied each enhancement to which the United States and Calvert-Cata objects. See Addendum to the PSR at 3-7, filed August 2, 2017 (Doc. 46)(“Addendum”).

         Calvert-Cata further objects to a specific condition of supervised release. In PSR Attachment A, the USPO recommends that the Court impose the following condition: “[Y]ou must submit to clinical polygraph examinations, as directed by the probation officer and/or treatment provider. You may be required to pay a portion of all the cost of the assessments and treatment.” PSR Attachment A at 3. Calvert-Cata objects to this condition of supervised release on both Fifth Amendment and reliability grounds. See Defendant's Sentencing Memorandum at 4-5.

         ANALYSIS

         First, the USSG § 2A3.1(b)(1) 4-level enhancement does not apply. Second, the USSG § 2A3.1(b)(4)(B) 2-level enhancement does not apply. Third, the USSG § 3A1.1(b)(1) 2-level enhancement applies. Fourth, the USSG § 4B1.5(b)(1) 5-level enhancement applies. Fifth, the Fifth Amendment does not prohibit the Court from requiring Calvert-Cata to submit to clinical polygraph examinations, as directed by a probation officer or treatment provider, as a condition of supervised release; however, at the time of the polygraph, Calvert-Cata may nevertheless invoke the Fifth Amendment privilege and refuse to answer an incriminating question. Last, reliability concerns do not prohibit the Court from requiring Calvert-Cata to submit to clinical polygraph examinations, as directed by a probation officer or treatment provider, as a condition of supervised release.

         I. THE USSG § 2A3.1(B)(1) 4- LEVEL ENHANCEMENT DOES NOT APPLY.

         The PSR applies a 4-level increase under USSG § 2A3.1(b)(1), because the offense involved conduct described in 18 U.S.C. § 2241(a) or (b). See PSR ¶ 29, at 7. Both the United States and Calvert-Cata object to the application of the § 2A3.1(b)(1) 4-level increase. See Defendant's Objections ¶ 1, at 4; Sentencing Memorandum at 4. The USPO maintains that the § 2A3.1(b)(1) 4-level enhancement was correctly applied. See Addendum to the PSR at 3, filed August 2, 2017 (Doc. 46)(“Addendum”). The USPO relies on § 2A3.1 Application Note 2, which states that “[t]his provision would apply, for example . . . in a case in which the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol.” USSG § 2A3.1(b)(1) app. n.2. See Addendum at 3.

         The § 2A3.1(b)(1) 4-level enhancement does not apply. That section directs the Court to increase the offense level if the offense involves conduct that 18 U.S.C. § 2241(a) or (b)

         describes. “As the text of these statutory provisions makes clear, they penalize conduct intended to overcome another person's lack of consent to a sexual act, whether achieved through physical force, threats of force, or other means that render the other person unconscious or otherwise unable to fend off the assault.” United States v. Volpe, 224 F.3d 72, 77 (2d Cir. 2000). Looking to 18 U.S.C. ยง 2241(a) and (b)'s ...


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