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United States v. Joe

United States District Court, D. New Mexico

May 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLEY JOE, JR., Defendant.

          James D. Tierney Acting United States Attorney Elaine Y. Ramirez Kristopher N. Houghton Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Devon M. Fooks Assistant Federal Public Defender Office of the Federal Public Defender Albuquerque, New Mexico Attorney for the Defendant

          UNSEALED [1] MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Sentencing Memorandum and Objections to Presentence Report, filed September 19, 2017 (Doc. 38)(“Objection”). The Court held a sentencing hearing on October 3, 2017. The primary issue is whether the vulnerable victim enhancement in U.S.S.G. § 3A1.1(b)(1) applies to Defendant Charley Joe, whose victim had cerebral palsy and could use only the right side of his body. The Court will overrule Joe's Objection to the application of the vulnerable victim enhancement in the Presentence Investigation Report, filed June 7, 2017 (Doc. 31)(“PSR”).

         FACTUAL BACKGROUND

         Joe and his brother, the victim, are registered members of the Navajo Nation and lived on the Navajo Nation Indian Reservation. See PSR ¶ 10, at 4.[2] The two brothers had a bad relationship; Joe “drank a lot, which would cause frequent arguments with the victim.” PSR ¶ 12, at 4. One day, they got into an altercation, in which the victim “started hitting” Joe, “punching him in the mouth, nose, and eye.” PSR ¶ 16, at 5. Eventually, Joe used an axe against his brother, killing him. See PSR ¶ 17, at 5. The Office of the Medical Investigator determined that the cause of death was “chop wounds.” PSR ¶ 18, at 6.

         The victim “was born with cerebral palsy and only had the use of the right side of his body.” Addendum to the Presentence Report at 1, filed September 27, 2017 (Doc. 39)(“Addendum”). Joe “was fully aware of his brother's medical condition.” Addendum at 1. Although “the victim reportedly did not let his disability stop him from completing daily activities, cerebral palsy did limit the victim in his movement.” Addendum at 1. Many “of the victim's injuries were sustained on the left side of his body, which the victim could not use.” Addendum at 1.

         PROCEDURAL BACKGROUND

         On October 12, 2016, a federal grand jury indicted Joe for one count of voluntary manslaughter “in violation of 18 U.S.C. §§ 1153 and 1112.” Indictment at 1, filed October 12, 2016 (Doc. 11). Joe pled guilty to the Indictment. See Plea Minute Sheet at 1, filed March 23, 2017 (Doc. 29). The PSR assigned Joe a base offense level of 29 and a criminal history category of one. See PSR ¶¶ 32, 46, at 8-9. The PSR adds 2 levels to Joe's offense level based on the vulnerable victim enhancement. See PSR ¶ 34, at 8.

         ANALYSIS

         Under U.S.S.G. § 3A1.1(b)(1), “if the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels.” “Vulnerable victim” is defined as a person “who is a victim of the offense of conviction . . . and who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1(b)(1) App. Note 2. The vulnerable victim enhancement applies “to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim's unusual vulnerability.” U.S.S.G. § 3A1.1(b)(1) App. Note 2.

         Joe argues that his brother does not qualify as a vulnerable victim. See Objection at 1. He asserts that “neither the government nor United States Probation has provided any evidence to show that Mr. Joe selected his brother as a victim due to his age or his disability.” Objection at 3. He further argues that the vulnerable victim enhancement “does not apply because the government has not shown that the victim in this matter was unusually vulnerable due to some other characteristic.” Objection at 4. According to Joe, “[t]he simple fact that Mr. Joe's brother suffered from cerebral palsy is not, in and of itself, sufficient to apply the 2 level enhancement.” Objection at 4.

         The United States Court of Appeals for the Tenth Circuit has written extensively on the vulnerable victim enhancement.

The status of “vulnerable victim” hinges on the idea that some characteristic renders a victim “particularly susceptible” to the criminal conduct. In other words, the “vulnerable victim” is someone who is unable to protect himself or herself from criminal conduct, and is therefore in need of greater societal protection than the average citizen.

United States v. Shumway, 112 F.3d 1413, 1423 (10th Cir. 1997). “The Guidelines' enhancement, however, is reserved for exceptional cases in which the victim is unusually vulnerable or particularly susceptible to the crime committed.” United States v. Proffit, 30 ...


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