United States District Court, D. New Mexico
C. Anderson, United States Attorney, Maria Ysabel Armijo,
Randy M. Castellano, Assistant United States Attorneys United
States Attorney's Office Las Cruces, New Mexico Attorneys
for the Plaintiff.
Albuquerque, New Mexico Attorneys for Defendant Shauna
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Sealed Objections to the
Presentence Report and Sentencing Memorandum for Defendant
Shauna Gutierrez, filed March 6, 2019 (Doc.
2558)(“Objections”). The primary issue is whether
the 2-level increase for the victim's sustaining serious
bodily injury under § 2A2.1(b)(1)(B) of the United
States Sentencing Guidelines Manual (U.S. Sentencing
Comm'n 2018)(“U.S.S.G.”) applies where the
Plaintiff United States of America did not present medical
testimony at trial that the assault on Jose Gomez resulted in
serious bodily injury. The Court concludes that medical
testimony is not necessary to establish that Gomez suffered
serious bodily injury. Accordingly, the Court overrules
Gutierrez' Objection and applies the 2-level adjustment
under U.S.S.G. § 2A2.1(b)(1)(B).
Shauna Gutierrez pled guilty to the Second Superseding
Indictment Count 14, “Conspiracy to Murder J.G.”;
Count 15, “Attempted Murder of J.G., Assault With a
Dangerous Weapon Upon J.G., Resulting in Serious Bodily
Injury to J.G.”; and Count 16, “Tampering With a
Witness, Victim, or Informant by Physical Force or Threat,
” on March 29, 2018. Second Superseding Indictment at
17-18, filed March 9, 2017 (Doc. 949). See Plea
Agreement at 2, filed March 29, 2018 (Doc. 2003). In her Plea
Agreement, Gutierrez admits the following facts and declares
them true under penalty of perjury:
The United States could prove at trial that the Syndicato de
Nuevo Mexico (SNM) prison gang is an ongoing criminal
organization whose members, prospects and associates engage
in acts of violence and other criminal activities including
murder, kidnapping, attempted murder, and conspiracy to
manufacture/distribute narcotics. The SNM operates in the
District of New Mexico and elsewhere. The SNM constitutes an
enterprise (individuals associated in fact that engaged in,
or the activities of which, affected interstate commerce)
that engaged in racketeering activity.
On or about February 27, 2016, in the District of New Mexico,
I conspired with others to harm the person identified in the
indictment as J.G., an SNM gang member. J.G. was a witness in
a formal proceeding against an SNM gang member. I provided
other individuals with J.G.'s physical location, upon
which they went to that location and assaulted J.G. J.G. was
struck on the head with a machete, which injured his head and
caused serious bodily injury.
Part of the reason J.G. was beaten was to prevent him from
testifying in a formal proceeding against an SNM gang member.
I committed these crimes and I aided and abetted others
involved in the commission of these crimes.
Plea Agreement ¶ 13, at 5-6. The Plea Agreement provides
that Gutierrez “agrees that the Court may rely on any
of these facts, as well as facts in the presentence report,
to determine the defendant's sentence, including, but not
limited to, the advisory guideline offense level.” Plea
Agreement ¶ 14, at 6.
Presentence Investigation Report, filed July 18, 2018 (Doc.
2350)(“PSR”), elaborates on the offense conduct,
21. On February 27, 2016, a deputy with the Valencia County
Sheriff's Office was dispatched to a residence in Belen,
New Mexico, in reference to a disturbance. According to the
caller, an unidentified person forced his way into a
person's home, and a total of four individuals came into
the residence carrying swords, guns, and a machete. The call
was disconnected, and officers responded to the home in
question. Once at the residence, deputies were not able to
locate any evidence of a crime. Deputies learned another
person had called and stated they had witnessed a man covered
in blood running across their property; however, he was no
longer in the area. Shortly thereafter, deputies were
dispatched to another residence as the caller stated her son,
J.G., had been injured. Once at the second residence,
emergency medical services (EMS) were requested. EMS
evaluated J.G. and subsequently transported him to the
University of New Mexico Hospital (UNMH) in Albuquerque, New
22. A detective with the Valencia County Sheriff's
Office, Criminal Investigation Division proceeded to UNMH and
made contact with the emergency room staff, who advised J.G.
had two lacerations to his head, one on the crown and the
second above his right temple. He also had a broken nose, and
his right eye was swollen and discolored. Upon the detective
making contact with J.G., he disclosed he had been working on
Charlene Johnson's residence in Belen and had been
staying at her home. According to J.G., Johnson left her home
at approximately 9:00 AM on February 27, 2016, and asked him
to “watch the house”. He fell asleep on one of
the beds and was awaken with a punch to his stomach. He saw
four people standing over him and identified them as Santos
Gonzales, Brandy Rodriguez, Paul “Oso” Rivera,
and another female he did not recognize.
23. J.G. indicated Gonzales asked, “You remember
me?” and hit him in the eye. Gonzales instructed the
unknown female to go to the front and watch the door. One of
the individuals told J.G. that Joe Lawrence Gallegos had put
a “hit” on him, and they were going to kill him.
“Oso” then hit J.G. with a baton, after which, he
passed the weapon to Rodriguez, and she hit J.G. J.G. noted
he saw Gonzales holding a machete, and as he attempted to get
off of the bed, Gonzales struck him twice on his head with
the machete “like he was chopping a pineapple”.
According to J.G., he fell to the floor and lost
27. On March 9, 2016, the detective made contact with J.G.
for a follow-up interview. According to J.G., he had recently
been followed by people driving a white van but did not
provide any additional information as to why he might be
followed. J.G. added the three individuals who attacked him
mentioned Joe Lawrence Gallegos had put a “green
light” on him, and they were going to “kill
him”. J.G. indicated Rodriguez and “Oso”
had batons, while Gonzales was carrying a machete. He stated
all three beat him with batons, and Gonzales struck him in
the head with the machete. J.G. noted he lost consciousness
and was presumed dead.
29. On May 17, 2016, FBI agents again met with Johnson in
reference to the incident that occurred at her home in
February 27, 2016. According to Johnson, Rodriguez and two
men came to her house and asked to speak to J.G. Johnson
identified the two men as Santos Gonzales and Paul Rivera.
She noted they told her to leave the house, then pushed past
her to go find J.G. Johnson stated she heard shouting and
described it as “the worst sound I've ever
heard”. She added, “They almost killed him. It
was terrible.” Johnson stated she, Rivera, Rodriguez,
and Gonzales then went into the backyard. A short time later,
J.G. fled the house and jumped over the fence. Gonzales and
Rivera shouted, “He's running! He's getting
away!” Johnson ...