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United States v. Sedillo

United States District Court, D. New Mexico

December 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BRUCE SEDILLO; LOREN SABAQUIE, and ROBERT GALLARDO, Defendants.

          John C. Anderson United States Attorney Presiliano Torrez Howard R. Thomas Assistant United States Attorneys District of New Mexico Albuquerque, New Mexico Attorneys for the Plaintiff

          Daniel J. Tallon Daniel J Tallon, Attorney at Law Placitas, New Mexico Attorney for Defendant Bruce Sedillo

          Alejandro Benito Fernandez Assistant Federal Public Defender Federal Public Defender Organization for the District of New Mexico? Albuquerque, New Mexico Attorney for Defendant Loren Sabaquie

          Jerry Daniel Herrera JD Herrera Law Offices Albuquerque, New Mexico Attorney for Defendant Robert Gallardo

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Motion to Continue the Restitution Hearing, filed December 11, 2018 (Doc. 152)(“Motion”). The Court held a hearing on this matter on December 12, 2018. The primary issue is whether, pursuant to Dolan v. United States, 560 U.S. 605 (2010), the Court may continue the hearing to determine the restitution owed a victim of the Defendants Bruce Sedillo, Loren Sabaquie, and Robert Gallardo's Verizon Wireless Robbery until after 18 U.S.C. § 3664(d)(5)'s ninety-days-after-sentencing deadline for restitution determinations. The Court concludes that, pursuant to Dolan v. United States, it may determine the restitution amount outside the ninety days after Sedillo's, Sabaquie's, and Gallardo's sentencings, and, thus, the Court will grant the Motion in part until December 19, 2018. At that time, the Court will determine whether to order restitution and whether to continue the determination of the restitution amount for sixty days.

         FACTUAL BACKGROUND

         The Court takes its facts from the Presentence Investigation Report, filed July 27, 2018 (Doc. 98)(“Sabaquie PSR”); the Presentence Investigation Report, filed July 23, 2018 (Doc. 96)(“Gallardo PSR”); and the Presentence Investigation Report, filed July 10, 2018 (Doc. 95)(“Sedillo PSR”). The Court provides these facts for background.

         On January 16, 2017, Gallardo and Sedillo entered a Metro PCS store with a “chrome pistol with an extended magazine” and stole “iphones, Sound Bands, [1] S.D. cards[2] and an unknown amount of cash.” Sabaquie PSR ¶ 10, at 5; Gallardo PSR ¶ 11, at 5; Sedillo PSR ¶ 11, at 5 (quotations identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR). On January 21, 2017, Sedillo and Sabaquie took “cigarettes, beer, and an unknown amount of cash” from a 7-Eleven and “fled in a Scion[3] style ‘box car.'” Sabaquie PSR ¶12, at 5; Gallardo PSR ¶ 13, at 5; Sedillo PSR ¶ 13, at 5 (quotations identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR). On January 25, 2017, Sedillo, with two men not indicted as co-Defendants, robbed a Wienerschnitzel and fled in a “red box style vehicle.” Sabaquie PSR ¶ 13, at 5; Gallardo PSR ¶ 14, at 5; Sedillo PSR ¶ 14, at 5 (quotation identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR). On January 26, 2017, Sedillo, Sabaquie, Gallardo, and a fourth, unidentified man, robbed the same Metro PCS store previously robbed on January 16, 2017. See Sabaquie PSR ¶ 14, at 5-6; Gallardo PSR ¶ 15, at 5-6; Sedillo PSR ¶ 15, at 5-6. On February 2, 2017, while detectives were conducting surveillance at a Verizon Wireless store, Sedillo, Sabaquie, Gallardo, and a fourth, unindicted man, entered the store with two handguns. See Sabaquie PSR ¶ 16, at 6; Gallardo PSR ¶ 17, at 6; Sedillo PSR ¶ 17, at 6. The two men armed with handguns “demanded cash and cellphones, demanding that the employees lay down on their faces. One of the males put a handgun to one of the employees head and forced him to the back area of the store and had him open the safe.” Sabaquie PSR ¶ 19, at 7; Gallardo PSR ¶ 20, at 7; Sedillo PSR ¶ 20, at 7 (quotation identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR). Sedillo, Sabaquie, and Gallardo left the store with “$5, 260 in cash, ” and “smart phones and tablets.” Sabaquie PSR ¶ 19, at 7; Gallardo PSR ¶ 20, at 7; Sedillo PSR ¶ 20, at 7 (quotations identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR). Sedillo, Sabaquie, and Gallardo's vehicle fled the Albuquerque Police Department officers (“APD officers”) at “a high rate of speed, ” and turned into a neighborhood. Sabaquie PSR ¶ 16, at 6; Gallardo PSR ¶ 17, at 6; Sedillo PSR ¶ 17, at 6 (quotation identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR). When the APD officers located the vehicle, a “red Scion XB, ” the APD officers uncovered “an open bag full of box Verizon cellphones, shoes, and other clothing items associated with the robbery.” Sabaquie PSR ¶¶ 16-17, at 6; Gallardo PSR ¶¶ 17-18, at 6; Sedillo PSR ¶¶ 17-18, at 6 (quotations identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR). The APD officers located Sabaquie and Gallardo in the area. See Sabaquie PSR ¶¶ 17-18, at 6-7; Gallardo PSR ¶¶ 18-19, at 6-7; Sedillo PSR ¶¶ 18-19, at 6-7.

         Since the Verizon Wireless robbery, M.D., an employee in the Verizon Wireless store at the time of the robbery, has ceased work at Verizon Wireless, and struggles to enter the community, crowded areas, or Verizon stores. See Second Addendum to the Presentence Report as to Robert Gallardo at 1, filed September 18, 2018 (Doc. 119); Second Addendum to the Presentence Report as to Bruce Sedillo at 1, filed September 18, 2018 (Doc. 120); Second Addendum to the Presentence Report as to Loren Sabaquie at 1, filed September 18, 2018 (Doc. 121)(collectively, “Second Addendum”). Before the Verizon Wireless robbery, M.D. had worked forty-hour weeks and earned twenty-eight dollars per hour. See Second Addendum at 1. Immediately after the robbery, Verizon Wireless supported M.D., but Verizon Wireless has stopped such payments until M.D. provides further information from his psychiatrist; M.D. is seeking to recover his lost wages. See Second Addendum at 1. M.D.'s psychiatrist at the University of New Mexico Hospital (“UNMH”), Dr. Mario Cruz, has diagnosed M.D. with post-traumatic stress disorder (“PTSD”), and M.D. started medication in July, 2018, after three months of therapy. See Second Addendum at 1. Dr. Cruz has M.D. restricting his work, but M.D. believes that his position at Verizon Wireless will be secure. See Second Addendum at 1. M.D., however, “is now behind on paying his child support and has been receiving food stamps.” Second Addendum at 1. M.D. and his girlfriend must live on one salary, and M.D. is unsure if he will receive bills from UNMH. See Second Addendum at 1.

         PROCEDURAL BACKGROUND

         A federal Grand Jury returned a five-count indictment. See Superseding Indictment, filed June 28, 2017 (Doc. 22). In Count 1, the Grand Jury indicts Sedillo and Gallardo for unlawfully obstructing, delaying, and affecting commerce, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2, by taking, through threats with a firearm, cash from Metro PCS employees. See Superseding Indictment at 1. In Count 2, the Grand Jury indicts Sedillo and Sabaquie for violating the same United States Code provisions by similarly taking, through threats with a firearm, cash from the 7-Eleven. See Superseding Indictment at 1-2. In Count 3, the Grand Jury indicts Sedillo for engaging in the same conduct and violating the same United States Code provisions at a Weinerschnitzel. See Superseding Indictment at 2. Count 4 and Count 5 state charges against Sedillo, Sabaquie, and Gallardo for the same conduct and in violation of the same United States Code provisions at, respectively, a Metro PCS and a Verizon Wireless. See Superseding Indictment at 2-3. Sedillo, Sabaquie, and Gallardo each pled guilty to Count 5, which contained the charges for the Verizon Wireless robbery. See Sabaquie PSR ¶ 2, at 4; Gallardo PSR ¶ 2, at 4; Sedillo PSR ¶ 2, at 4. The Sedillo PSR, the Sabaquie PSR, and the Gallardo PSR indicated that the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A (“MVRA”), applies to Sedillo's, Sabaquie's, and Gallardo's crime and that, although the United States Probation Office (“USPO”) sent “victim packets” to the Verizon Wireless, the USPO has not received information from any victim. Sabaquie PSR ¶ 26, at 8; Gallardo PSR ¶ 27, at 8; Sedillo PSR ¶ 27, at 8 (quotation identical in the Sabaquie PSR, the Gallardo PSR, and the Sedillo PSR).

         1. The Second Addendum.

         On September 18, 2018 (Doc. 119), the USPO filed the Second Addendums to the Presentence Reports for Sedillo, Sabaquie, and Gallardo. See Second Addendum. In the Second Addendum, the USPO explains that it “received a phone call and interviewed the victim, M.D., ” who described his hardships since the Verizon Wireless robbery. Second Addendum at 1. The Court recites the hardships in the Factual Background. The USPO states that M.D. has not provided it with documentation recording his lost wages and that M.D. “may come to the sentencing hearing but will not address the Court.” Second Addendum at 1. The USPO assures the Court that, if it receives further information from M.D. or other victims, it will update the Court. See Second Addendum at 1.

         2. The Sentencing Hearings.

         The Court held Sabaquie's sentencing hearing first, on September 20, 2018. See Clerk's Minutes, filed September 20, 2018 (Doc. 124). At the hearing, Plaintiff United States of America explained that it has “had a difficult time communicating with some of the . . . witnesses[, ] because they've left their employment and so forth.” Draft Transcript of Hearing at 39:5-7 (taken September 20, 2018)(Torrez)(“Sabaquie Tr.”).[4] The United States reiterated the facts recounted in the Second Addendum, see Sabaquie Tr. at 39:15-20 (Torrez), and, given these facts, asked the Court to “keep the matter of restitution open for 90 days under the statute with respect to Mr. Sabaquie, ” Sabaquie Tr. at 39:20-22 (Torrez). The United States noted that remembering that armed robberies impact individuals' and communities' safety is important. See Sabaquie Tr. at 39:22-25 (Torrez). In response to the Court's question, the USPO indicated that, by the sentencing hearing, it had not been able to obtain information from the victims for restitution. See Sabaquie Tr. at 51:6-14 (Court, Probation Officer). The Court stated, accordingly, that it would not order restitution, as the victims had not made a claim. See Sabaquie Tr. at 51:15-20 (Court). The United States responded by noting that 18 U.S.C. § 3664(d)(5) provides ninety days after sentencing to address restitution under the MVRA and stated that it would seek further information on the matter. See Sabaquie Tr. at 52:20-25 (Torrez). The Court explained that, to postpone addressing restitution, it needed representations from the United States or the USPO that a restitution amount could not be determined through their “reasonable efforts” ten days before the sentencing hearing. Sabaquie Tr. at 53:3 (Court). See id. at 53:1-6 (Court); id. at 55:3-10 (Court). Sabaquie contended that he could not determine whether the United States and the USPO required additional time to obtain information on restitution, what had delayed M.D. in providing information on restitution, or whether M.D. could overcome the obstacle within the ninety days. See Sabaquie Tr. at 53:19-25 (Fernandez). The Court read from 18 U.S.C. § 3664(d), stating that the victim's losses must be unascertainable by ten days before sentencing for the Court to postpone determining restitution ninety days after sentencing and asked whether the USPO could make this representation. See Sabaquie Tr. at 55:3-10 (Court). The United States replied that it had made efforts to obtain such information and that the victim intended to submit information on restitution, see Sabaquie Tr. at 53:7-12 (Torrez), and the USPO affirmed that it could not have determined the restitution amount by ten days before sentencing. See Sabaquie Tr. at 55:11-12 (Probation Officer). The Court indicated that it would have a restitution hearing “no more than 90 days” from the sentencing hearing. See Sabaquie Tr. at 55:13-14 (Court). According to the Court, if, at that time, the victim produces no information, the Court will not order restitution, but if the victim does produce information, Sabaquie can look at the information and consider whether the United States and the USPO could have learned it earlier. See Sabaquie Tr. at 55:15-24 (Court). The Court noted that, if M.D. did not cooperate with the United States or the USPO, the United States and the USPO would struggle to get the information. See Sabaquie Tr. at 55:25-55:8 (Court). The Court indicated that the USPO had made multiple efforts to get the information, so the USPO at least could make representations that it had tried to obtain the information. See Sabaquie Tr. at 56:2-8 (Court); id. at 56:12-15 (Court). The United States replied that it did not get any information about possible restitution until it received the addendum about medical costs. See Sabaquie Tr. at 56:9-11 (Torrez).

         The Court held Gallardo's sentencing hearing on October 3, 2018. See Clerk's Minutes, filed October 3, 2018 (Doc. 133). The United States reiterated that it was seeking restitution for M.D. See Draft Transcript of Hearing at 25:1-2 (taken October 3, 2018)(Torrez)(“Gallardo Tr.”). The Court initially noted that it would not impose restitution, as M.D. had not made a claim. Gallardo Tr. at 31:22-32:2 (Court). The United States requested that the Court “hold the matter of restitution open” for ninety days as it did in Sabaquie's sentencing hearing. Gallardo Tr. at 32:25-33:3 (Torrez). The Court asked whether the USPO could have reasonably determined a restitution amount and whether M.D. had submitted information for a restitution claim, and the USPO indicated that the victim expressed “some interest in wanting” a restitution claim but had not submitted information. Gallardo Tr. at 33:9-10 (Probation Officer). See Gallardo Tr. at 33:4-14 (Court, Probation Officer). The Court indicated that it would set a hearing on restitution within ninety days of the hearing and for the same time as Sabaquie's hearing on restitution. See Gallardo Tr. at 33:16-22 (Court).

         The Court held Sedillo's sentencing hearing on October 10, 2018. See Clerk's Minutes, filed October 10, 2018 (Doc. 140). The United States requested that the Court “hold [the] matter of restitution open for the remainder of time that remains as we did with the other co-defendants.” Draft Transcript of Hearing at 21:11-13 (taken October 10, 2018)(Torrez)(“Sedillo Tr.”). The Court asked whether the USPO could determine restitution ten days before the sentencing hearing, and the USPO responded that it had contacted M.D., but that M.D. had not provided documentation about restitution. See Sedillo Tr. at 21:14-21 (Court, Probation Officer). The Court indicated that it would set a hearing in Sedillo's, Sabaquie's, and Gallardo's cases within ninety days, and that, if by that date, M.D. provides figures for restitution, the Court will determine whether to order restitution. See Sedillo Tr. at 21:22-22:7 (Court).

         On October 10, 2018, the Court scheduled a restitution hearing for December 12, 2018. See Notice of Hearing, filed October 10, 2018 (Doc. 142). December 12, 2018, is eighty-three days after Sabaquie's September 20, 2018, hearing.

         3. The Motion.

         The United States filed the Motion, arguing that the Court grant it “an additional 60 days to obtain” and review medical billing records. Motion at 1. The United States explains that it “has made several attempts to obtain the information necessary to inform the Court of what the restitution should be, ” and that the United States has met with and communicated with M.D. and attempted to obtain his medical billing records. Motion at 1. The United States states that it has not received the medical billing records and that it requires those records to “determine future medical costs and past medical costs.” Motion at 1. The United States notes that Gallardo does not object to the continuance but neither Sedillo nor Sabaquie have responded to the Motion. See Motion at 1-2.

         4. The Status Hearing.

         Because Gallardo was not present in the courtroom but remained in custody outside the state of New Mexico, the Court began the hearing by inquiring whether the hearing could proceed without Gallardo's presence. See Draft Transcript of Hearing 3:7-21 (taken December 17, 2018)(Herrera, Court)(“Restitution Hearing Tr.”). The Court clarified that, although close to ninety days had passed since Sabaquie's sentencing hearing, the Court had reached only the middle of the ninety days since Gallardo's sentencing hearings. See Restitution Hearing Tr. at 3:16-21 (Court). Gallardo indicated concerns with proceeding with the Restitution Hearing, because the United States had noted that they did not have the documents necessary to establish a restitution amount and, according to Gallardo, without that, the parties could not meaningfully discuss the restitution amount. See Restitution Hearing Tr. at 3:22-4:7 (Herrera). The Court noted that it would prefer to proceed with the Restitution Hearing when Gallardo will be present and that the United States has the responsibility for ensuring the Defendants' presence in the courtroom. See Restitution Hearing Tr. at 4:8-14 (Court).

         The United States indicated that it had received some information, including medical records, from M.D. but that M.D. had not yet provided the United States his medical billing records. See Restitution Hearing Tr. at 4:15-22 (Torrez). The United States requested, accordingly, another sixty days to obtain the information for restitution, including medical billing records, tax records, and information about M.D.'s lost wages. See Restitution Hearing Tr. at 4:22-5:3 (Torrez). The Court asked under what authority it could grant the United States sixty days to obtain such information, and the United States cited Dolan v. United States, 571 F.3d 1022 (10th Cir. 2009). See Restitution Hearing Tr. at 5:4-10 (Court, Torrez). The United States argued that Dolan v. United States stands for the proposition that a court has authority to make a restitution determination after the ninety-day deadline if the court indicates “prior to the deadline” that it will order restitution and leaves “open for more than 90 days only the amount.” Restitution Hearing Tr. at 6:10-17 (Torrez). Torrez requested that, given this case, the Court order restitution “without a final amount” and give the United States sixty days to determine the restitution amount. See Restitution Hearing Tr. at 6:18-22 (Torrez). The Court indicated that the Supreme Court of the United States affirmed Dolan v. United States in United States v. Dolan, 560 U.S. 605 (2010), but that the Supreme Court adopted a narrower analysis than the Court of Appeals for the Tenth Circuit. See Restitution Hearing Tr. at 6:5-9 (Court).

         The Court expressed concern about ordering restitution without Gallardo's presence and asked for Gallardo's opinion about ordering restitution at the Restitution Hearing and determining the restitution amount later when Gallardo was present. See Restitution Hearing Tr. at 6:23-7:5 (Court). Gallardo expressed concern about the Court ordering restitution, because the United States had not provided even medical billing records from which to determine the restitution amount's size. See Restitution Hearing Tr. at 7:6-15 (Herrera). The United States explained that M.D.'s PTSD might be causing the difficulties in obtaining M.D.'s responses and that the United States had had similar problems working previously with “an individual that suffered a disability, ” Restitution Hearing Tr. at 8:8 (Torrez); according to the United States, with the previous victim, the United States required a year to obtain the desired information. See Tr. at 8:3-13 (Torrez). The United States offered that it could subpoena the medical billing records and provide M.D. for cross-examination. See Restitution Hearing Tr. at 8:13-18 (Torrez). The Court offered to set a hearing on December 19, 2018, the ninetieth day after Sabaquie's sentencing, to further consider the issue. See Restitution Hearing Tr. at 8:22-25 (Court). Sabaquie acquiesced to this plan with the condition that, before the hearing, the United States provide any documents it obtained. See Restitution Hearing Tr. at 9:15-20 (Fernandez). In response to the Court's question whether the United States agreed to this request, the United States agreed to provide Sedillo, Sabaquie, and Gallardo any documents recovered before the hearing. See Restitution Hearing Tr. at 10:22-25 (Court, Torrez). The Court noted that Gallardo should be present in the courtroom for the December 19, 2018, hearing. See Restitution Hearing Tr. at 12:3-5 (Court). The United States offered that, if it could obtain the medical billing records it would try to arrive at a restitution amount before December 19, 2018, and the Court replied that, if the United States read Dolan v. United States correctly and the Court could permissibly follow the two-step process of ordering restitution before the ninety-day deadline and determining the restitution amount after the ninety-day deadline, the Court would order restitution on December 19, 2018, and grant the United States another sixty days to determine the restitution amount. See Restitution Hearing Tr. at 13:9-23 (Torrez, Court).

         LAW ...


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