United States District Court, D. New Mexico
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
M. Fooks Assistant Federal Public Defender Office of the
Federal Public Defender Albuquerque, New Mexico Attorney for
UNSEALED  MEMORANDUM OPINION AND
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
his brother, the victim, are registered members of the Navajo
Nation and lived on the Navajo Nation Indian Reservation.
See PSR ¶ 10, at 4. 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.
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.
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.
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.
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.
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 ...