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United States v. Joe

United States District Court, D. New Mexico

May 24, 2018

CHARLEY JOE, JR., Defendant.

          John 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 Defendant.


         THIS 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.


         C. Joe 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”).[2] 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 12.

         C. Joe 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.

         J. Joe “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.

         The two 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.

         On the 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.

         Benally 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.

         “It 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.


         On 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.

         1. The Motion.

         Plaintiff 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.

         2. The Objections.

         C. Joe 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.

         C. Joe 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 at 16.

         C. Joe 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 ...

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