United States District Court, D. New Mexico
C. Anderson 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.
Stephen P. McCue Federal Public Defender Devon M. Fooks
Assistant Federal Public Defender Office of the Federal
Public Defender Albuquerque, New Mexico Attorneys for the
UNSEALED MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) the United
States' Motion for Upward Departure and/or Upward
Variance, filed August 22, 2017 (Doc.
37)(“Motion”); and (ii) the Defendant's
Sentencing Memorandum and Objections to Presentence Report,
filed September 19, 2017 (Doc. 38)(“Objections”).
The Court held a sentencing hearing on October 3, 2017. The
primary issues are: (i) whether Defendant Charley Joe's
crime, voluntary manslaughter, was unusually heinous, cruel,
or brutal such that, under U.S.S.G. § 5K2.8, the Court
should depart upward from the sentencing range that the
United States Sentencing Guidelines prescribe; (ii) whether
C. Joe's conduct merits an upward variance pursuant to 18
U.S.C. § 3553(a); and (iii) whether C. Joe's conduct
merits a downward variance pursuant to 18 U.S.C. §
3553(a). The Court concludes that it will not depart upward,
nor vary upward or downward, from the Guidelines range. The
Court has wide discretion, and it usually does not depart or
vary upward from the bottom of the Guidelines range unless a
particularly aggravating factor is present. Here, the factors
that put upward pressure on C. Joe's sentence outweigh
the factors that put downward pressure on that sentence,
keeping the sentence in the Guidelines range or higher. On
balance, a sentence at the bottom of the Guidelines range, 78
months followed by three years of supervised release, is
necessary -- but also adequate -- to reflect the seriousness
of the offense, promote respect for the law, provide just
punishment, afford adequate deterrence, and avoid sentencing
disparities among defendants with similar records found
guilty of similar offenses. Accordingly, the Court will deny
the Motion and overrule the Objections.
and his brother, Jonathan Joe, the victim, are registered
members of the Navajo Nation, and lived on the Navajo Nation
Indian Reservation in Shiprock, New Mexico. See
Presentence Investigation Report at 2, 4, filed June 7, 2017
(Doc. 31)(“PSR”). Both of C. Joe's feet are
damaged, and he “walks with a constant limp, ”
because he never received treatment after two separate foot
injuries. Objections at 11-12. See PSR ¶ 59, at
also has a long history of alcohol abuse. See PSR
¶ 63, at 12-13. He started drinking at age twelve, and
his longest sober period since then lasted only five months.
See Objections at 11. C. Joe is now sixty-eight
years old. See PSR ¶ 88, at 16. Further, most
of his criminal history relates to alcoholism. See,
e.g., PSR ¶¶ 44, 47, at 9 (describing a
history of criminal conduct involving, among other things,
driving under the influence of alcohol and public
intoxication). His father also “died within a few years
of his birth.” Objections at 10.
“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”). C. 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.
brothers had a bad relationship, in which C. Joe “drank
a lot, which would cause frequent arguments with the
victim.” PSR ¶ 12, at 4. Indeed, C. Joe had
consumed alcohol on the day of J. Joe's death.
See PSR ¶ 86, at 15. One day, the brothers got
into an altercation in which J. Joe “started
hitting” C. Joe, “punching him in the mouth,
nose, and eye.” PSR ¶ 16, at 5. The fight got out
of control, and, eventually, C. Joe used an axe to attack his
brother. See PSR ¶ 17, at 5. The resulting
wounds killed J. Joe, but he did not die immediately.
See Objections at 4-5. After using the axe, C. Joe
saw the victim lying “on the floor, bleeding from his
head.” PSR ¶ 17, at 5. C. Joe “became scared
and ran from the house, leaving the axe by the front
door.” PSR ¶ 17, at 5. “It is unclear when
the attack actually occurred, although the timeline suggests
it was either Monday, September 12, 2016, in the evening
after 5:45 p.m., or Tuesday, September 13, 2016 before 3:45
p.m.” Motion at 4.
date of the fight, Debra Benally “went to the
victim's residence to purchase corn.” Motion at 3.
See Objections at 4. She saw J. Joe lying on the
floor with a bloody arm. See Motion at 3. J. Joe was
still alive, and he told Benally to call 911, which she did.
See Motion at 3. “Benally did not know the
victim so she could not give the dispatcher his name, ”
though she described the address. Motion at 3. She then left
the victim's residence. See Objections at 4. As
she left, “she observed an ambulance and assumed it was
going to take care of the victim.” Motion at 3.
returned to the residence about an hour later, but no
emergency services had arrived. See Objections at 4.
J. Joe was still alive. See Objections at 4-5. He
“was still on the floor, but had moved closer to the
door.” Motion at 3. Again, he asked her to call 911.
See Motion at 3. Benally called the Northern Navajo
Medical Center but “was told there were no ambulances
available, and she should call 911.” Motion at 3.
Benally then called 911, but, again, “was told there
were no ambulances available. She was also told they
responded to her initial call but were unable to locate the
residence.” Motion at 3. “Benally was told a unit
would be sent when it was available. Benally was with her
children and did not want to stay at the residence because
she was shaken up.” Motion at 3.
is unclear when exactly Jonathan Joe expired but it is clear
that he was alive for some time after the attack.”
Objections at 5. “It is also unclear how long the
victim suffered from the wounds he sustained, as he was last
seen alive at approximately 5:21 p.m. on Tuesday, September
13, 2016, but his body was not discovered until Friday,
September 16, 2016 in the morning.” Motion at 4. The
Office of the Medical Investigator determined that the cause
of death was “chop wounds.” PSR ¶ 18, at 6.
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 C. 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). C. Joe pled guilty to the
Indictment. See Plea Minute Sheet at 1, filed March
23, 2017 (Doc. 29). The PSR assigns C. Joe a total offense
level of 28 and a criminal history category of I, which
results in a guideline imprisonment range of seventy-eight to
ninety-seven months. See PSR ¶¶ 41, 46, 70
at 8-9, 14.
United States of America moves the Court to grant an upward
departure and/or an upward variance when sentencing C. Joe.
See Motion at 1. The United States first argues that
an upward departure pursuant to U.S.S.G. § 5K2.8 is
warranted, because the victim “suffered a long,
agonizing death.” Motion at 2. The United States
asserts that C. Joe's conduct was “unusually
heinous, cruel and brutal, ” and that “the
viciousness of the attack, coupled with his failure to render
aid, caused the victim to suffer prolonged pain that was
tantamount to torture.” Motion at 4. The United States
concludes that the Court should upwardly depart and sentence
C. Joe to 180 months, the statutory maximum. See
Motion at 4. In the alternative, the United States argues
that C. Joe's conduct merits an upward variance pursuant
to 18 U.S.C. § 3553(a). See Motion at 4. The
United States contends that the “nature and
circumstances of this offense merit an upward variance to a
sentence of 180 months, ” because the victim's
cerebral palsy partially paralyzed him, and he suffered for
several hours before his death. Motion at 6.
contends that an upward departure pursuant to U.S.S.G. §
5K2.8 is improper. See Objections at 4. He contends
that, although J. Joe suffered, local emergency services
greatly disserved J. Joe. See Objections at 4. C.
Joe further asserts that J. Joe's prolonged suffering was
not C. Joe's intent, so that suffering should not be held
against him. See Objections at 5. He adds that the
crime itself also was not premeditated, but rather, occurred
in the heat of the moment. See Objections at 5. For
these reasons, C. Joe concludes that a U.S.S.G. § 5K2.8
upward departure is improper. See Objections at 5-6.
also argues that a sentence of 60 months “is sufficient
but not greater than necessary to serve as a deterrent both
to Mr. Joe and to other would be offenders.” Objections
at 15. He contends that, because he is sixty-eight years old
and in poor health, a sentence at the low end of the
Guidelines range, 78 months, would essentially be a life
sentence for him. See Objections at 16. According to
Joe, “when one considers Mr. Joe's infirmities and
age, a sentence of 78 months is excessive.” Objections
next contends that the need for the sentence imposed to
protect the public is low, because, although C. Joe has a
criminal history, none of it -- other than killing J. Joe --
is violent. See Objections at 16. C. Joe continues
that his alcohol problems have caused all of his crimes, and
that such a problem is best addressed through counseling
during a lengthy period of supervised release, rather than
through additional prison time. See Objections at
16-17. C. Joe concludes that the Court should not grant an