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United States v. Chavez

United States District Court, D. New Mexico

December 18, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER THEODORE CHAVEZ, Defendant.

          John C. Anderson United States Attorney Maria Ysabel Armijo Randy M. Castellano Matthew M. Beck Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Orlando Mondragon El Paso, Texas John L. Granberg Granberg Law Office El Paso, Texas Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Responses to Pre-Sentence Report, filed December 5, 2018 (Doc. 80)(“Objections”).[1] The primary issues are: (i) whether the quantity of controlled substances that Defendant Christopher Chavez allegedly possessed should be determined by weight rather than by dosage, reducing Chavez' base offense level to 6, pursuant to the United States Sentencing Guidelines Manual § 2D1.1(d) (U.S. Sentencing Comm'n 2016)(“U.S.S.G.”), [2] see Presentence Investigation Report ¶ 8, at 5, filed August 13, 2018 (Doc. 55)(“PSR”); (ii) whether, pursuant to U.S.S.G. § 4A1.1(e), the Court should assign only 1 criminal history point for Chavez' Aggravated Battery criminal history entry, see PSR ¶ 35, at 10, because the Aggravated Battery criminal history points correspond to the same sentence imposed for the Receiving or Transferring a Stolen Motor Vehicle criminal history entry, see PSR ¶ 33; (iii) whether, pursuant to U.S.S.G. § 4A1.1(e), the Court should assign only 1 criminal history point for Chavez' Auto Burglary and Conspiracy to Commit Auto Burglary criminal history entry, see PSR ¶ 40, at 12, because the Auto Burglary and Conspiracy to Commit Auto Burglary criminal history points correspond to the same sentence imposed for Possession of a Controlled Substance, to wit: Heroin criminal history entry, see PSR ¶ 38, at 11; (iv) whether, pursuant to U.S.S.G. § 4A1.1(e), the Court should assign only 1 criminal history point for Chavez' Possession of a Controlled Substance (Heroin) criminal history entry, see PSR ¶ 41, at 12, because the Possession of a Controlled Substance (Heroin) criminal history points correspond to the same sentence imposed for Possession of a Controlled Substance, to wit: Heroin criminal history entry, see PSR ¶ 38, at 11; (v) whether, pursuant to U.S.S.G. § 4A1.1(e), the Court should assign only 1 criminal history point for Chavez' Residential Burglary, Larceny, and Receiving Stolen Property criminal history entry, see PSR ¶ 42, at 13, because the Residential Burglary, Larceny, and Receiving Stolen Property criminal history points correspond to the same sentence imposed for Possession of a Controlled Substance, to wit: Heroin criminal history entry, see PSR ¶ 38, at 11; (vi) whether, considering Chavez' objections to the PSR's calculation of his criminal history points, Chavez' criminal history should be 11 points rather than 19 points, see PSR ¶ 43, at 13; (vii) whether, if the Court determines Chavez' criminal history points are 11, his criminal history category is V, see PSR ¶ 44, at 13; (viii) whether, rather than placing Chavez at a Residential Reentry Center (“RRC”) upon supervised release, the Court should order that Shayleen Macias, Chavez' current girlfriend, undergo screening as a suitable third party custodian for Chavez, see PSR ¶ 56, at 16; (ix) whether Chavez may reserve argument about his physical condition until sentencing, see PSR ¶ 58, at 16; and (x) whether, based on a total offense level of 13 and criminal history category of V, Chavez' guideline imprisonment range is 30 to 36 months, and not 33 to 41 months, see PSR ¶ 71, at 18. The Court concludes that: (i) Suboxone[3] quantity may not be calculated by dosage, and that the Federal Bureau of Investigations (“FBI”) agent's dosage determination is arbitrary, so the Court will sustain Chavez' objection to the last sentence of paragraph 8 of the PSR and remove that sentence, although the Court notes that the change does not affect Chavez' total offense level, which is 13; (ii) U.S.S.G. § 4A1.1(e) applies to none of the PSR paragraphs that Chavez mentions, because the charges which Chavez compares were either separated by an intervening arrest, or were neither charged in the same charging document, nor sentenced on the same day, and, thus, the Court overrules Chavez' Objections to his criminal history points calculation; (iii) having overruled Chavez' objections to his criminal history points calculation, the Court overrules Chavez' objections to his criminal history score and category; (iv) the Court will consider at the hearing on December 19, 2018, Chavez' request that the Court order the United States Probation Office (“USPO”) to screen Shayleen Macias, Chavez' current girlfriend, as a third-party custodian; (v) the Court grants Chavez' request to discuss his physical condition at the December 19, 2018, hearing; and (vi) the Court overrules Chavez' objection to his U.S.S.G. calculation, which is accurate for a total offense level of 13 and a criminal history category of VI. The Court therefore sustains the Objections in part and overrules them in part.

         FACTUAL BACKGROUND

         At the Plea Hearing, held before the Honorable Gregory B. Wormuth, United States Magistrate Judge for the District of New Mexico, Chavez pled guilty to the Indictment. See Indictment at 1, filed March 21, 2017 (Doc. 36). See also Clerk's Minutes at 1, filed May 30, 2018 (Doc. 50)(“Plea Hearing Minutes”). The Indictment charges that Chavez

unlawfully, knowingly and intentionally combined, conspired, confederated, agreed, and acted interdependently with each other and with other persons whose names are known and unknown to the Grand Jury to commit an offense defined in 21 U.S.C. §§ 841(a)(1) and (b)(1)(E), specifically, distribution of Suboxone. In violation of 21 U.SC. § 846.

Indictment at 1. The Indictment also charges that Chavez, “an inmate of the Hidalgo County Detention Center . . ., attempted to obtain a prohibited object, specifically, Suboxone. In violation of 18 U.S.C. § 1791(a)(2).” Indictment at 2. There is no plea agreement in this case.

         The Court takes the facts from the PSR. No one has objected to the PSR's recitation of the facts, so unless someone objects or wants an evidentiary hearing to present more facts, they will serve as the Court's findings of fact for purposes of this sentencing. The PSR describes the offense conduct as follows:

6. On December 3, 2015, Christopher T. Chavez was taken into federal custody for the offense detailed in paragraph 52 of this presentence report, for which he was eventually acquitted at trial on March 25, 2018. Throughout that term of incarceration, he and Yvonne Madrid, who were previously married, but divorced in 2011, remained in contact with each other via telephone calls and written correspondence. Chavez' prior defense counsel on that unrelated matter was provided with an envelope containing various letters and Christmas cards by Madrid. On December 22, 2017, at Madrid's request, Chavez' previous defense counsel attempted to deliver the envelope and Christmas cards to Chavez while he was in the custody of the Hidalgo County Detention Center in Lordsburg, New Mexico. The prior defense counsel advised detention center staff that the envelope and its contents were not legal documents, but were from Chavez' family and allowed staff to inspect the contents. Subsequently, detention center staff discovered two Suboxone strips concealed within two of the Christmas cards. The contraband was turned over to the Lordsburg Police Department, then to the Federal Bureau of Investigations (FBI) for further investigation. Chavez' prior defense counsel provided a statement to the Lordsburg Police Department then departed the Hidalgo County Detention Center. According to the FBI, had it not been for the prior defense counsel's candid interaction with detention center staff, the Suboxone would have been delivered to Chavez.
7. On December 26, 2017, agents interviewed Madrid who stated during recent telephone conversations, Chavez pressured her to send him Suboxone. Chavez reportedly told Madrid he could make $300 selling the Suboxone inside the jail and would send her some of the proceeds. Madrid stated she was in need of the money and agreed to do so. Madrid stated she does not have a prescription for Suboxone so she purchased the two strips of Suboxone from an unknown individual “on the streets” of Albuquerque for $7 per strip. Madrid concealed the two Suboxone strips inside of the Christmas cards and mailed them to Chavez' prior defense counsel with the intent of having the defense counsel deliver them to Chavez.

PSR ¶¶ 6-7, at 4-5 (emphasis in original).

         PROCEDURAL BACKGROUND

         In the PSR, the USPO calculated Chavez's base offense level at 13 pursuant to U.S.S.G. § 2P1.2(a)(2). See PSR ¶ 15, at 5. On November 6, 2018, the USPO filed email correspondence between the USPO and Chavez, discussing the same Objections which Chavez raised in his Objections. See Email from Mike Adolph, United States Probation Officer for the District of New Mexico to Mr. John Granberg, Attorney at Law (dated Aug. 31, 2018), filed November 6, 2018 (Doc. 78)(“Email from Adolph to Mr. Granberg”). The Email from Adolph to Mr. Granberg contains the USPO's initial, informal, responses to some of Chavez' Objections, and the Court will discuss these responses, where relevant, in its analysis. The Court does not rely upon the Email from Adolph to Mr. Granberg's statements as fact and has conducted its own research into the caselaw and the facts in order to verify the basis for the USPO's calculations in the PSR. The Court will further describe the Objections, see Objections at 1-3, with the USPO's responses, see Second Addendum at 1-3, in its analysis.

         RELEVANT LAW REGARDING THE GUIDELINES

         In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1976, thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Sentencing Reform Act intact, including 18 U.S.C. § 3553: “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. at 261.

         Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary” to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . .

18 U.S.C. § 3553(a)(2)(A)-(D).

[A] defendant who has been found guilty of an offense described in any Federal statute . . . shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

18 U.S.C. § 3551. To achieve these purposes, § 3553(a) directs sentencing courts to consider:

(i) the Guidelines; (ii) the nature of the offense and the defendant's character; (iii) the available sentences; (iv) a policy favoring uniformity in sentences for defendants who commit similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

         Although the Guidelines are no longer mandatory, both the Supreme Court and the United States Court of Appeals for the Tenth Circuit have clarified that, while the Guidelines are one of several factors which § 3553(a) enumerates, they are entitled to careful consideration. See Rita v. United States, 551 U.S. 338, 349 (2007)(“The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill [its] statutory mandate.”); United States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006)(describing the Guidelines as more than “just one factor among many”). They are significant, because “the Guidelines are an expression of popular political will about sentencing that is entitled to due consideration . . . [and] represent at this point eighteen years' worth of careful consideration of the proper sentence for federal offenses.” United States v. Cage, 451 F.3d at 593 (internal quotation marks omitted)(quoting United States v. Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006)). A reasonable sentence is one that also “avoid[s] unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. at 261-62.

         The Tenth Circuit has “joined a number of other circuits in holding that a sentence within the applicable Guidelines range is presumptively reasonable.” United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006), overruled on other grounds by Rita v. United States, 551 U.S. 338, 349 (2007), as recognized in United States v. Zamora-Solorzano, 528 F.3d 1247, 1251 n.3 (10th Cir. 2008). This presumption, however, is an appellate presumption and not one that the trial court can or should apply. See Gall v. United States, 552 U.S. 38, 46-47 (2007); Kimbrough v. United States, 552 U.S. 85, 90-91 (2007); Rita v. United States, 551 U.S. at 351. Instead, the trial court must undertake the § 3553(a) balancing of factors without any presumption in favor of the advisory[4] Guidelines sentence. See Rita v. United States, 551 U.S. at 351; Gall v. United States, 552 U.S. at 46-47; Kimbrough v. United States, 552 U.S. at 90-91.

While the Supreme Court's decision in United States v. Booker has given the sentencing court discretion that it did not have earlier, the sentencing court's first task remains to accurately and correctly determine the advisory-guideline sentence. Thus, before the sentencing court takes up a defendant's Booker arguments, the sentencing court must first determine whether the defendant is entitled to downward departures. The sentencing court may, however, also use these same departure factors in the Booker calculus, even if the court does not grant a downward departure.

United States v. Apodaca-Leyva, No. CR 07-1479 JB, 2008 WL 2229550, at *6 (D.N.M. Feb. 13, 2008)(Browning, J.). The Supreme Court recognized, however, that the sentencing judge is “in a superior position to find facts and judge their import under § 3553(a) in each particular case.” Kimbrough v. United States, 552 U.S. at 89. Applying § 3553(a)'s factors, the Court has concluded that the case of an illegal immigrant who re-entered the United States to provide for his two children and two siblings was not materially differentiated from other re-entry cases, and, thus, no variance from the Guidelines sentence was warranted. See United States v. Almendares-Soto, No. CR 10-1922 JB, 2010 WL 5476767, at *12 (D.N.M. Dec. 14, 2010)(Browning, J.). On the other hand, in United States v. Jager, No. CR 10-1531 JB, 2011 WL 831279 (D.N.M. Feb. 17, 2011)(Browning, J.), although the defendant's military service was not present to an unusual degree and, thus, did not warrant a departure, the Court concluded that a variance was appropriate, because the defendant's military service was “superior and uniformly outstanding, ” as the defendant appeared to have been “trustworthy[] and dedicated, and he served with distinction.” 2011 WL 831279, at *14.

         LAW REGARDING CALCULATING CRIMINAL HISTORY

         Section 4A1.1 of the U.S.S.G states, in relevant part: “The total points from items (a) through (f) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.” U.S.S.G. § 4A1.1. Subsection (a) states: “Add 3 points for each prior sentence of imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a). Application Note to 1 to U.S.S.G. § 4A1.1 states:

         Certain prior sentences are not counted or are counted only under certain conditions:

A sentence imposed more than fifteen years prior to the defendant's commencement of the instant offense is not counted unless the defendant's incarceration extended into this fifteen-year period. See § 4A1.2(e).
A sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted under this subsection only if it resulted from an adult conviction. See § 4A1.2(d).
A sentence for a foreign conviction, a conviction that has been expunged, or an invalid conviction is not counted. See § 4A1.2(h) and (j) and the Commentary to § 4A1.2.

U.S.S.G. § 4A1.1 n.1. Subsection (b) to U.S.S.G. § 4A1.1(b) states: “Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).” There is no limit to the number of points that may be added under either subsection (a) or subsection (b). See U.S.S.G. § 4A1.1 n.1 & n.2.

         Section 4A1.2(d) treats “offenses committed prior to age eighteen.” U.S.S.G. § 4A1.2(d).

It provides that, “[i]f the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 points under § 4A1.1(a) for each such sentence.” U.S.S.G. § 4A1.2(d). Application Note 7 to U.S.S.G. § 4A1.2 provides that, for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense are counted.

U.S.S.G. § 4A1.2 n.7.

         Section 4A1.2(a)(2) of the U.S.S.G., which announces definitions and instructions for ...


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