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United States v. Troup

United States District Court, D. New Mexico

October 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD TROUP, a.k.a. “Huero Troup, ” Defendant. Date of Arrest Charge/Court Guideline Points

          Fred Federici Attorney for the United States Acting Under Authority Conferred by 28 U.S.C. § 515 Albuquerque, New Mexico --and-- Maria Ysabel Armijo Randy M. Castellano Matthew Beck Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff

          Sarah M. Gorman Law Offices of Robert D. Gorman Albuquerque, New Mexico Attorney for Defendant Angel DeLeon

          Richard Sindel Sindel, Sindel & Noble, P.C. Clayton, Missouri --and-- Brock Benjamin Benjamin Law Firm El Paso, Texas Attorneys for Defendant Joe Lawrence Gallegos

          Patrick J. Burke Patrick J. Burke, P.C. Denver, Colorado --and-- Cori Ann Harbour-Valdez The Harbour Law Firm, P.C. El Paso, Texas Attorneys for Defendant Edward Troup

          Russell Dean Clark Las Cruces, New Mexico Attorney for Defendant Leonard Lujan

          James A. Castle Castle & Castle, P.C. Denver, Colorado --and-- Robert R. Cooper Albuquerque, New Mexico Attorneys for Defendant Billy Garcia

          Douglas E. Couleur Douglas E. Couleur, P.A. Santa Fe, New Mexico Attorney for Defendant Eugene Martinez

          Phillip A. Linder The Linder Firm Dallas, Texas --and-- Joseph E. Shattuck Marco & Shattuck Albuquerque, New Mexico --and-- Jeffrey C. Lahann Las Cruces, New Mexico Attorneys for Defendant Allen Patterson

          John L. Granberg Granberg Law Office El Paso, Texas --and-- Eduardo Solis El Paso, Texas --and-- Orlando Mondragon El Paso, Texas Attorneys for Defendant Christopher Chavez

          Nathan D. Chambers Nathan D. Chambers, LLC Denver, Colorado --and-- Noel Orquiz Deming, New Mexico Attorneys for Defendant Javier Alonso

          Scott Moran Davidson Albuquerque, New Mexico --and-- Billy R. Blackburn Albuquerque, New Mexico Attorneys for Defendant Arturo Arnulfo Garcia

          Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico --and-- Jerry Daniel Herrera Albuquerque, New Mexico Attorneys for Defendant Benjamin Clark

          Pedro Pineda Las Cruces, New Mexico --and-- León Encinias León Felipe Encinias Attorney at Law Albuquerque, New Mexico Attorneys for Defendant Ruben Hernandez

          Gary Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for Defendant Jerry Armenta

          Larry A. Hammond Osborn Maledon, P.A. Phoenix, Arizona --and-- Margaret Strickland McGraw & Strickland Las Cruces, New Mexico Attorneys for Defendant Jerry Montoya

          Steven M. Potolsky Jacksonville Beach, Florida --and-- Santiago D. Hernandez Law Office of Santiago D. Hernandez El Paso, Texas Attorneys for Defendant Mario Rodriguez

          Jacqueline K. Walsh Walsh & Larranaga Seattle, Washington --and-- Ray Velarde El Paso, Texas Attorneys for Defendant Timothy Martinez

          Joe Spencer El Paso, Texas --and-- Mary Stillinger El Paso, Texas Attorneys for Defendant Mauricio Varela

          Richard Jewkes El Paso, Texas --and-- Lauren Noriega The Noriega Law Firm Los Angeles, California and Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California Attorneys for Defendant Daniel Sanchez

          George A. Harrison Las Cruces, New Mexico --and-- Kimberly S. Brusuelas-Benavidez Albuquerque, New Mexico Attorney for Defendant Gerald Archuleta

          B.J. Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant Conrad Villegas

          Theresa M. Duncan Duncan, Earnest, LLC Albuquerque, New Mexico and Marc M. Lowry Rothstein Donatelli, LLP Albuquerque, New Mexico Attorneys for Defendant Anthony Ray Baca

          Charles J. McElhinney McElhinney Law Firm, LLC Las Cruces, New Mexico Attorney for Defendant Robert Martinez

          Marcia J. Milner Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez

          Christopher W. Adams Charleston, South Carolina --and-- Amy Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New Mexico Attorneys for Defendant Christopher Garcia

          William R. Maynard El Paso, Texas and Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico --and-- Ryan J. Villa Albuquerque, New Mexico and Michael V. Davis Michael V. Davis, Attorney & Counselor at Law, P.C. Corrales, New Mexico Attorneys for Defendant Carlos Herrera

          Justine Fox-Young Albuquerque, New Mexico --and-- Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez

          Lisa Torraco Albuquerque, New Mexico --and-- Donavon A. Roberts Albuquerque, New Mexico Attorneys for Defendant Andrew Gallegos

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico Attorneys for Defendant Santos Gonzalez

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez

          Jerry A. Walz Walz and Associates Albuquerque, New Mexico Attorneys for Defendant Brandy Rodriguez

          MEMORANDUM OPINION AND ORDER [1]

         THIS MATTER comes before the Court on: (i) Defendant Edward Troup's Objections to the Presentence Investigation Report (Doc. 2591) and Motion to Strike Paragraphs 6-13, 17, 18, 20, 21, 26-31, and 65 of the Presentence Investigation Report and Motion to Order the Government to Include These Objections in the Materials Sent to the Bureau of Prisons BOP, filed April 26, 2019 (Doc. 2621)(“Objections”); and (ii) Edward Troup's Conditional Motion for Downward Variance, filed May 10, 2019 (Doc. 2648)(“Motion”). The primary issues are: (i) whether, under § 2E1.3 of the United States Sentencing Guidelines Manual (U.S. Sentencing Comm'n 2018)(“U.S.S.G.”), [2] the underlying crimes are first-degree murder for Defendant Edward Troup's conviction of two Counts under 18 U.S.C. § 1959(a)(1), establishing a base offense level of 43 pursuant to U.S.S.G. § 2A1.1; (ii) whether the 2-level enhancement under U.S.S.G. § 3A1.1(b)(1) for a vulnerable victim applies to both Counts, because the two victims were incarcerated; (iii) whether the 2-level enhancement under U.S.S.G. § 3A1.3 for restraint of victim applies to both Counts, because the victims were killed in close quarters in their prison cells; (iv) whether a 2-level reduction under U.S.S.G. § 3B1.2(b) is appropriate for both Counts, because Troup maintains that his role in both homicides was minor; (v) whether a downward departure under U.S.S.G. § 4A1.3 is warranted, because the Presentence Investigation Report, filed March 20, 2019 (Doc. 2591)(“PSR”), having calculated his criminal history level at VI from 25 criminal history points overrepresents Troup's criminal history; (vi) whether the Court should strike the PSR's paragraphs 6-13, 17-18, 20-21, and 26-31, because the United States Probation Officer (“USPO”) relied on the prosecutors' files to find the facts in these paragraphs rather than the trial transcripts, or the PSR's paragraph 65, because the USPO could not find details of the offense contained in this paragraph; and (vii) whether a downward variance is appropriate, because the Guidelines' range is harsher than necessary to achieve 18 U.S.C. § 3553(a)'s sentencing objectives. The Court held a sentencing hearing on May 15, 2019. The Court concludes that: (i) there is evidence to find, by a preponderance, that the underlying crimes for the 18 U.S.C. § 1959(a)(1) offenses are first-degree murder, establishing a base offense level of 43 pursuant to U.S.S.G. § 2A1.1, so the Court overrules this Objection; (ii) the homicide victims' status as prisoners and as targets of the Syndicato de Nuevo Mexico (“SNM”) for hits establishes them as vulnerable under U.S.S.G. § 3A1.1(b)(1), so the Court overrules this Objection; (iii) the victims were physically restrained in small, enclosed areas, which establishes that they were restrained under U.S.S.G. § 3A1.3, so the Court overrules this Objection; (iv) there is not a preponderance of the evidence to find that Troup's role in the murders was minor, so the Court overrules this Objection; (v) the PSR does not overrepresent Troup's criminal history because the PSR presents an accurate representation of the seriousness of Troup's criminal history and Troup's likelihood of recidivism, so no downward departure is warranted, and the Court overrules this Objection; (vi) the USPO should not rely on prosecutors' notes to find facts where there has been a trial, but because the Second Addendum to the Presentence Report, filed May 14, 2019 (Doc. 2654)(“Second Addendum”) maintains that these facts are accurate and cites to the trial transcripts, and because the USPO verified conviction and information contained in paragraph 65, the Court overrules these Objections; and (vii) the Guidelines' range of life is adequate and necessary to promote 18 U.S.C. § 3553(a)'s sentencing objectives, so a downward variance is not warranted. Accordingly, the Court overrules the Objections and denies the Motion.

         FACTUAL BACKGROUND

         Troup is one of many Defendants named in a sixteen-Count indictment charging “members/prospects/associates of the” SNM with “acts of violence and other criminal activities, including[] murder, kidnapping, attempted murder conspiracy to manufacture/distribute narcotics, and firearms trafficking.” Second Superseding Indictment ¶ 1, at 2, filed March 9, 2017 (Doc. 949)(“Indictment”). The Indictment alleges that the SNM constitutes an enterprise “as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce.” Indictment ¶ 2, at 2-3. The Court has provided background information on the SNM in a number of prior opinions, including in its Memorandum Opinion and Order, 287 F.Supp.3d 1187, filed March 7, 2018 (Doc. 1882)(“MOO”). The Court provides this information, which is garnered from the Indictment, purely to provide background information on this case and recognizes that this information reflects largely Plaintiff United States of America's version of events:

SNM is a violent prison gang formed in the early 1980s at the Penitentiary of New Mexico (“PNM”) after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. . . . Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See . . . Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment at 3. SNM now has approximately 250 members, and “a ‘panel' or ‘mesa' (Spanish for table) of leaders who issue orders to subordinate gang members.” Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment at 3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and profit from narcotics trafficking. See Indictment at 3-4. Members who fail “to show continued loyalty to the gang [are] disciplined in various ways, [] includ[ing] murder and assaults.” Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment at 4. If another gang does not abide by SNM's demands, SNM will assault or kill one of the other gang's members to show its power. See Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment at 4. SNM further engages in violence “to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others.” Indictment at 4. To show its strength and influence, SNM expects its members to confront and attack any suspected law enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment at 8. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the Federal Bureau of Investigation's present investigation. See United States v. Garcia, No. CR 15-4275, Memorandum Opinion and Order at 2, 221 F.Supp.3d 1275, 1277, filed November 16, 2016 (Doc. 133).
. . . .
The United States now brings this case, which it initiated in Las Cruces, New Mexico, against thirty-one Defendants, charging them with a total of sixteen counts. See Indictment at 1, 9-18. All Defendants are accused of participating in the SNM enterprise's operation and management, and of committing unlawful activities “as a consideration for the receipt of, and as consideration for a promise and an agreement to pay, anything of pecuniary value from SNM and for the purpose of gaining entrance to and maintaining and increasing position in SNM, an enterprise engaged in racketeering activity.” Indictment at 9-18. Defendant Arturo Arnulfo Garcia, Defendant Gerald Archuleta, Defendant Benjamin Clark, [Defendant Mario] Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, and [Defendant Daniel] Sanchez are the enterprise's alleged leaders. See Indictment at 6. The other Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See Indictment at 6. The SNM gang enterprise, through its members and associates, allegedly engaged in: (i) racketeering activity as 18 U.S.C. §§ 1959(b)(1) and 1961(1) defines that term; (ii) murder and robbery in violation of New Mexico law; (iii) acts, indictable under 18 U.S.C. §§ 1503, 1512, and 1513, “involving obstruction of justice, tampering with or retaliating against a witness, victim or an informant”; and (iv) offenses involving trafficking in narcotics in violation of 21 U.S.C. §§ 841 and 846. Indictment at 9.
. . . .
For fuller factual context, there are now four cases before the Court related to SNM's alleged criminal activity. In a related case -- United States v. Baca, No. CR 16-1613, 2016 WL 6404772 (D.N.M.)(Browning, J.) -- the United States names twelve defendants, all alleged SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d). There is also a separate prosecution of [Defendant Christopher] Garcia for drug crimes, see United States v. Garcia, No. CR 15-4275 (D.N.M.)(Browning, J.), and a four-defendant prosecution for alleged violent crimes in aid of racketeering, under 18 U.S.C. § 1959. See United States v. Varela, No. CR 15-4269 (D.N.M.)(Browning, J.).

MOO at 5-12, 287 F.Supp.3d at 1195-99 (footnotes omitted)(first four alterations in the MOO, last two added). The Indictment charges Troup in two Counts: (i) Count 1's violent crimes in aid of racketeering activity, 18 U.S.C. § 1959(a)(1), (2), violation for the March 26, 2001, murder of Frank Castillo; and (ii) Count 3's violent crimes in aid of racketeering activity, 18 U.S.C. § 1959(a)(1), (2), violation for the June 17, 2007, murder of Freddie Sanchez. See Indictment at 9-11.

         On April 9, 2018, the Court began jury selection for the trial on the Indictment's Counts 1-5 and 13-16. See Clerk's Minutes at 6-7, filed April 9, 2018 (Doc. 2324)(“Trial Minutes”). Troup went to trial with six co-Defendants, three of whom were also charged with Troup in Counts 1 and 3. Compare Trial Minutes at 6 (stating that, among others, Defendants Joe Gallegos, Troup, Billy Garcia, and Arturo Arnulfo Garcia went to trial), with Indictment at 9 (charging, among others, Gallegos, Troup, and B. Garcia with Castillo's murder), and Indictment at 10-11 (charging, among others, Troup and A.A. Garcia with Sanchez' murder). The parties gave their opening statements on Thursday, April 12, 2018. The United States began its case in chief the same day. See Trial Minutes at 11.

         The Court takes the offense conduct facts from the PSR and the Second Addendum, because, although Troup objects to portions of the PSR's recitation of the facts based on the PSR's reliance on the United States' files rather than the evidence revealed at trial, the Second Addendum relies on trial transcripts to determine that the PSR's information is accurate. See, e.g., Objections at 2. See also Draft Transcript of Hearing at 46:2-19, taken May 15, 2019 (Burke, Court)(“Tr.”)(providing Troup's agreement with the Court's suggestion to overrule the factual Objections, because the Second Addendum relies on trial transcripts). The Court's findings of fact on Castillo's murder for this sentencing are as follows:

14. On March 26, 2001, officers with New Mexico State Police (NMSP) Criminal Investigations were advised by officials at the Southern New Mexico Correctional Facility (SNMCF) in Las Cruces, New Mexico that an inmate was discovered dead in his cell. Upon arrival, NMSP investigators were informed the victim, identified as F.C., [who] appeared to have been strangled. Investigators were also advised F.C. was a member of the SNM gang.
15. When questioned, inmate Edward Troup denied knowing F.C. and being involved in F.C.'s death.
16. On March 27, 2001, a report of findings was completed by the Office of the Medical Investigator regarding F.C.'s autopsy. The autopsy report revealed a tightly rolled laundry bag was around F.C.'s neck and was twisted around itself. The ligature passed just below the mouth across the upper part of the chin and wrapped tightly around the back of the neck just below the base of the skull. Upon removal of the ligature from the upper neck and chin, a depressed ligature abrasion around the neck and lower face remained. The following injuries were noted: the face and chest were marked with postmortem lividity; petechial hemorrhages were extremely apparent within both eyes; there was hemorrhaging within the left sternocleidomastoid muscle of the lower neck; there was a large contusion on the upper chest area and left shoulder that was not apparent on the surface of the skin due to the high levels of livor mortis; there was a 1 ½ x ¾ inch contusion on the right hip; and there were several abrasions and contusions of both knees as well as on the left foot. The cause of death was identified as ligature strangulation, and it was ruled a homicide.
17. According to a statement made on July 22, 2003 by a confidential informant (CI), who was an inmate at the SNMCF, the morning of F.C.'s murder, the CI observed Troup and Angel DeLeon sitting on the bed in Troup's cell removing the string from a laundry bag. The CI then observed Joe Gallegos talking with F.C., both of whom were in the upstairs portion of the pod. As the CI returned to his cell, he observed Troup sitting on a table, and F.C.'s door was closed. The CI started to walk up the stairs when Troup warned him not to go up the stairs; however, the CI continued to his cell, at which time, he heard a sound consistent with a door being kicked coming from F.C.'s cell. The CI observed Troup go to F.C.'s cell door and kick it in order to keep it closed. The CI entered his cell but continued to look out when he observed DeLeon and Gallegos exit F.C.'s cell and walk straight to the showers.
18. The CI stated they were all called to go to breakfast, and he walked with DeLeon, who told the CI that Gallegos and F.C. had been in F.C.'s cell shooting up heroin. When it was F.C.'s turn, DeLeon stated he grabbed F.C.'s arm, and Gallegos wrapped the string around F.C.'s neck. F.C. attempted to get away; however, Troup pushed the cell door closed to keep it from opening and to prevent F.C. from escaping. DeLeon stated he continued to hold F.C., while Gallegos strangled him. It was during breakfast when F.C. was found murdered in his cell. The CI indicated Gallegos showed him a burn mark on his hand, which he admitted he received when he strangled F.C.
19. On September 12, 2007, NMSP officers met with Leonard Lujan to conduct a follow-up interview regarding F.C.'s murder. According to Lujan, Billy Garcia advised he wanted F.C. “removed”. Although Garcia wanted other inmates murdered, he wanted F.C. killed first by strangulation. Lujan admitted he ordered Gallegos and DeLeon to murder F.C. Lujan further admitted Gallegos and DeLeon had “green lights” on them, and their names would be cleared by murdering F.C. On October 17, 2007, Lujan positively identified Gallegos and DeLeon in a photo lineup as the individuals he ordered to carry out F.C.'s murder. It was later revealed F.C. was murdered, because he allegedly provided information to law enforcement regarding criminal activity.
20. In late November 2012, a CI spoke to Troup while they were at a house in Albuquerque, New Mexico. Troup spoke of his role in F.C.'s murder and stated Garcia gave the order to kill F.C. Troup admitted walking into F.C.'s cell, where DeLeon and others were waiting for F.C. Once F.C. was in his cell, Troup closed the cell door and guarded the door while DeLeon and others strangled F.C. Troup stated F.C. was killed, because he allegedly been seen on an episode of “Cops” providing information to law enforcement.
21. In summary, Troup conspired with other SNM members to murder F.C. and participated in F.C.'s murder at the direction and under the leadership of the SNM. While incarcerated at the SNMCF, Gallegos and DeLeon strangled F.C. to death in his cell, while Troup served as a lookout and helped prevent F.C. from escaping his attackers by keeping his cell door closed. Due to the close quarters of F.C.'s cell, which had only one way in and out . . ., F.C. was not able to fight off his assailants or escape while he was being strangled out of the view of correctional officers . . . . Furthermore, DeLeon held F.C.'s arm while Gallegos wrapped the string about his neck . . . . By virtue of his membership in the SNM, Troup was ordered to participate in the murder by the SNM's leadership . . . .

PSR ¶¶ 14-21, at 9-11. Additionally,

[a]t trial, Michael Jaramillo testified about the 2001 murder of F.C. regarding Troup's role in the offense. According to Jaramillo, Troup was to keep everyone in the dayroom or inside of their individual rooms while the murder of F.C. was committed. Jaramillo testified he observed Troup downstairs (page 23 of Jaramillo transcript), but also indicated Troup had been in the pod area watching the doors to the cells. When questioned about Troup's participation in the murder, Jaramillo noted Troup did participate, as he kept lookout while the murder of F.C. occurred (page 174 of Jaramillo transcript). . . . .
. . . Benjamin Clark provided testimony that he had several conversations with Troup, confirming the information provided during the trial and in the discovery material was accurate. Benjamin Clark testified that, in 2004, he and Troup had a conversation about the 2001 murders of “Looney” and “Pancho” at the Southern New Mexico Correctional Facility. According to Clark, Troup stated “I really didn't do nothing. All I did was close the door. I wasn't involved in it.” It should be noted, “Pancho” is identified as the victim F.C. (page 63 of Clark transcript).

Second Addendum at 1-2.

         The Court's findings of fact on Sanchez' murder for this sentencing are as follows:

22. On June 17, 2007, a correctional office (CO) at the SNMCF was conducting formal count when inmate F.S. was found unresponsive in the prone position with pale limbs and without a pulse. Medical personnel arrived and noticed dried blood on F.S.'s mouth, nose, and pillowcase.
23. NMSP investigators arrived on scene a learned a CO had an informal interview with F.S. when he arrived at the SNMCF on June 14, 2007. During the interview, F.S. indicated there was a “hit” on him, and the CO informed the unit manager that F.S. would need to be moved for his safety. The CO stated he was surprised when he returned to work two days later and discovered F.S. had not been moved, as this process typically happened immediately.
24. On June 18, 2007, an autopsy was performed by the Office of Medical Investigator in Albuquerque, New Mexico. The results of the autopsy led to the medical examiner's opinion that F.S. died of ligature strangulation. The autopsy revealed an abrasion almost completely encircling F.S.'s neck with a slight downward cant on the right posterior neck. The underlying neck muscles showed hemorrhage and bruising, and the cartilage of the neck showed fractures. The manner of death was ruled a homicide.
25. Security video footage showed that on June 16, 2007, four inmates entered Troup's cell, while F.S. walked toward his cell, which was nearby. At that time, the security cameras were covered with wet paper towels and remained covered for approximately 15 minutes.
26. Several other inmates were interviewed on June 16, 2007, and the following information was gleaned. Troup; Javier Alonso, a.k.a. “Wineo”; and Raymond Rascon were responsible for F.S.'s murder. Inmates reported they could hear gurgling noises consistent with someone being strangled coming from F.S.'s cell. Shortly thereafter, Troup was seen exiting F.S.'s cell with something in his hand, which he slid under another inmate's door. Troup instructed everyone involved in F.S.'s murder, “No snitching. Chances are we will all be going away for a while, so take a plea if you get a chance.”
27. On July 5, 2007, the STIU officer completed his investigation of F.S.'s murder, citing information that was received and corroborated by more than one source. The officer determined Troup was one of three inmates who entered F.S.'s cell on June 16, 2007 and murder[ed] F.S. Troup also arranged F.S.'s body to appear as if F.S. was sleeping.
28. On July 7, 2007, NMSP officers conducted interviews with several witnesses/suspects of F.S.'s murder. Specifically, the officers spoke with Ruben Hernandez and Kyle Dwyer, who provided the following information. Hernandez indicated his primary role in F.S.'s murder was to obscure the security camera lenses prior to the murder. He was given instructions by Troup, and although he initially refused, he became fearful for his life; therefore, he complied with Troup's “orders.” On the evening of June 16, 2007, Hernandez was approached by Troup who ordered him to cover the lenses immediately. Hernandez stated he placed wet paper towels over the lenses and became the lookout for any prison staff who may enter the pod. Hernandez stated he heard F.S. struggling, gasping, and gurgling in his cell and observed Alonso arranging F.S.'s body in his bed. Troup later ordered Hernandez to rearrange F.S.[] in his bed during the night to give the impression F.S. had moved around at some point; however, Hernandez stated he did not do as instructed.
29. Dwyer initially indicated he did not have any involvement in F.S.'s murder. However, he later recanted and stated when he was transferred from the Penitentiary of New Mexico (PNM) in Santa Fe to the SNMCF, he hand-delivered a manila envelope to SNM member Benjamin Clark, a.k.a. “Cyclone”. According to Dwyer, the envelope contained court documentation verifying F.S. had cooperated with law enforcement., Dwyer stated he received the envelope from a CO, who received it from Joe Martinez, an inmate at the PNM. Dwyer believed Clark disseminated the information in the envelope to additional SNM members. A few days later, Clark gave the envelope back to Dwyer and stated everyone who needed to see it had seen it, and he instructed Dwyer to destroy the envelope, which Dwyer did. Dwyer indicated he was transferred back to the PNM shortly after F.S.'s murder and was on the bus with Alonso. Alonso showed Dwyer how he could position his arm to make his wrist turn pale while wearing restraints and stated that was how F.S.'s face looked when Alonso was strangling him.
30. In late November 2012, a CI spoke to Troup while they were at a house in Albuquerque. During the conversation, Troup confessed he held F.S.'s legs while Alonso strangled him to death with a drawstring from a laundry bag. Troup stated he and Alonso disposed of the drawstring, took off their clothes, and tore up any evidence to hide their part in the murder.
31. In summary, Troup conspired with other SNM gang members to murder F.S. and participated in F.S.'s murder at the direction and under the leadership of the SNM. While incarcerated at the SNMCF, Troup held F.S.'s legs as Alonso strangled F.S. to death in his cell, while Hernandez covered the security camera lenses and served as a lookout. Due to the close quarters of F.S.'s cell, which had only one way in and out, F.S. was not able to fight off his assailants or escape while he was being strangled out of the view of COs. . . . Furthermore, Troup held F.S.'s legs while Alonso was strangling F.S ..... By virtue of his membership in the SNM, Troup was ordered to participate in the murder by SNM's leadership . . . .

PSR ¶¶ 22-31, at 11-12. Additionally,

Clark testified he had a conversation with the defendant shortly after the murder of F.S. in 2007 (page 56 of Clark transcript). Clark testified that Troup and Javier Alonso were ordered by two members of the SNM to kill F.S. Troup informed Clark that he and Alonso were told “Thy the F isn't it done If this doesn't get done, then we're going to go in there and do Fred Dawg, and then we're going to do you.” Based on this statement, Alonso and Troup made the decision to kill F.S. Clark testified that Troup indicated Alonso grabbed F.S., threw him to the floor, and put a rope around his neck. Troup admitted to falling on F.S.'s legs, while Alonso slammed F.S.'s head into the floor while strangling him (page 56-57 of Clark transcript).

Second Addendum at 2.

         PROCEDURAL BACKGROUND

         The parties gave their closing statements and turned the case over to the jury for it to begin deliberations on Tuesday, May 22, 2018. See Trial Minutes at 53-54. The jury returned its verdict on Friday, May 25, 2018, finding Troup “guilty of violent crimes in aid of racketeering in the murder of Frank Castillo, as charged in Count 1 of the Indictment, ” and “guilty of violent crimes in aid of racketeering in the murder of Freddie Sanchez, as charged in Count 3 of the Indictment.” Verdict at 3 (dated May 25, 2018), filed May 25, 2018 (Doc. 2332). The Court set Troup's sentencing for May 15, 2019. See Notice of Hearing as to Edward Troup, filed March 11, 2019 (Doc. 2584)(this is a text-only entry on the docket).

         1. The PSR.

         In calculating Troup's Guidelines sentence, the USPO first notes that Troup “has not clearly demonstrated acceptance of responsibility for the offense[s].” PSR ¶ 35, at 13. As to Count 1, the USPO determines that the underlying crime of the racketeering activity is murder, providing a base offense level of 43. See PSR ¶ 37, at 13. The USPO also applies a 2-level adjustment for a vulnerable victim, determining that Castillo's inability “to fight off his assailants or escape while he was being strangled out of the view of correctional officers” means he was a vulnerable victim. PSR ¶ 21, at 11. See id. ¶ 39, at 13. The USPO applies a 2-level adjustment for restraint of victim, because DeLeon held Castillo's arm while Gallegos strangled Castillo. See PSR ¶ 21, at 11; id. ¶ 40, at 14. The USPO does not apply an adjustment for Troup's role in the murder, determining that, “because his actions led to F.C.'s death, neither an aggravating nor a mitigating role adjustment is warranted in this case.” PSR ¶ 21, at 11. See id. ¶ 41, at 14. The USPO also does not apply an adjustment for obstruction of justice, and calculates an adjusted offense level of 47 for Count 1. See PSR ¶¶ 42-43, at 14.

         As to Count 3, the USPO again determines that the underlying crime is murder, providing a base offense level of 43. See PSR ¶ 44, at 14. The USPO adds 2 levels under the vulnerable victim adjustment, determining that Sanchez' inability “to fight off his assailants or escape while he was being strangled out of the view of COs” means he was a vulnerable victim. PSR ¶ 31, at 12. See id. ¶ 46, at 14. The USPO also applied the 2-level adjustment for restraint of victim, because “Troup held F.S.'s legs while Alonso was strangling F.S.” PSR ¶ 31, at 12. See id. ¶ 47, at 14. The USPO does not apply an adjustment for Troup's role in the murder, determining that, “because his actions led to F.S.'s death, neither an aggravating nor a mitigating role adjustment is warranted in this case.” PSR ¶ 31, at 12. See id. ¶ 48, at 14. The USPO also does not apply an adjustment for obstruction of justice, and calculates an adjusted offense level of 47 for Count 3. See PSR ¶¶ 49-50, at 14.

         The USPO calculates the combined offense level as 49. See PSR ¶ 54, at 15. Accordingly, the USPO determines that the total offense level is 43. See PSR ¶ 57, at 15 (citing U.S.S.G. ch. 5, pt. A n.2.). The USPO then provides Troup's criminal history, which the Court summarizes in the following table.

Date of Arrest
Charge/Court
Guideline
Points

March 20, 1989 Age 17

Residential Burglary; Larceny; Conspiracy 2nd Judicial District Court of Bernalillo County, Albuquerque, New Mexico

§ 4A1.2(e)(3)

0

November 28, 1989 Age 18

Harboring a Felon; Contributing to the Delinquency of a Minor 2nd Judicial District Court of Bernalillo County, Albuquerque, New Mexico

§ 4A1.1(c)

1

April 25, 1990 Age 18

Residential Burglary

2nd Judicial District Court of Bernalillo

County, Albuquerque, New Mexico

§ 4A1.1(a)

3

November 8, 1990

Age 19

Residential Burglary 2nd Judicial District Court of Bernalillo County, Albuquerque, New Mexico

§ 4A1.1(a)

3

November 28, 1993 Age 22

Conspiracy to Commit Residential Burglary 13th Judicial District Court of Valencia County, Los Lunas, New Mexico

§ 4A1.1(a)

3

August 21, 1996 Age 24

Receiving Stolen Property (Over $250) 12th Judicial District Court of Otero County, Alamogordo, New Mexico

§ 4A1.1(a)

3

March 14, 1997 Age 25

Possession of a Firearm or Destructive Device by a Felon

4th Judicial District Court of San Miguel County, Las Vegas, New Mexico

§ 4A1.1(a)

3

November 22, 2001 Age 30

Receiving or Transferring a Stolen Vehicle (Possession); Reckless Driving 2nd Judicial District Court of Bernalillo County, Albuquerque, New Mexico

§ 4A1.1(c)

1

December 26, 2001 Age 30

Residential Burglary; Receiving or Transferring a Stolen Vehicle (Possession); Conspiracy to Commit Residential Burglary' Reckless Driving

2nd Judicial District Court of Bernalillo County, Albuquerque, New Mexico

§ 4A1.1(a)

3

July 1, 2003 Age 31

Residential Burglary

2nd Judicial District Court of Bernalillo

County, Albuquerque, New Mexico

§ 4A1.1(a)

3

See PSR ¶¶ 59-68, at 15-21. The USPO notes that these convictions “result in a subtotal criminal history score of 23, ” but adds an additional 2 points, because Troup “committed the instant offense while under a criminal justice sentence.” PSR ¶¶ 69-70, at 21. This calculation results in a criminal history score of 25, and a criminal history category of VI. See PSR ¶ 71, at 21. The total offense level of 43 and criminal history category of VI provides a Guidelines imprisonment term of life. See PSR ¶ 92, at 26.

         2. The Objections.

         Troup moves to strike the PSR's paragraphs 6-13, 17-18, 20-21, 26-31, and 65, objecting to its Guidelines calculation and some of the PSR's facts. See Objections at 1-11. Troup also requests that the Court order that his Objections and the Motion be provided to the Bureau of Prison's Classification Office, so that it has a more complete picture of Troup when deciding where he will be housed. See Objections at 11-12. Troup's first Guidelines Objection goes to his base offense level, arguing that the underlying crime for his 18 U.S.C. § 1959(a)(1) convictions cannot be first-degree murder, because “the Court instructed the jury as to both first degree murder and second degree murder under New Mexico law, ” the jury “did not make a finding on first degree murder, ” and “second degree murder under New Mexico law is sufficiently broad that the most analogous offense under federal law is manslaughter.” Objections at 6. The Court used a general verdict form, so Troup maintains that “it cannot be determined whether the jury voted to convict on first degree murder or second degree murder.” Objections at 7. Accordingly, Troup asserts that the Court must assume “that the jury used the instruction relating to second degree murder, ” as otherwise the calculation “would require improper judicial fact finding.” Objections at 7 (citing United States v. Booker, 543 U.S. 220, 244 (2005)). Troup posits that the United States “cannot have it both ways: The government cannot seek, and be given, the flexibility of having the jury consider both first and second degree murder -- and then argue, upon conviction, that the jury convicted on first degree murder where there is no evidence that this was actually the jury's verdict.” Objections at 7 (emphasis in original). Troup argues that the second-degree-murder instruction “was so loose and expansive that it could encompass manslaughter under federal law.” Objections at 8. Troup compares the United States Court of Appeals for the Tenth Circuit's Pattern Jury Instructions' language with the Court's jury instruction, noting that the Pattern Jury Instructions define malice aforethought as “kill[ing] another person deliberately and intentionally, or to act with callous and wanton disregard for human life, ” Objections at 8 (quoting Tenth Circuit Pattern Jury Instructions Criminal § 2.52, at 165 (2018)), whereas the Court instructed the jury that Troup “knew [his] acts created a strong probability of death or great bodily harm, ” Objections at 8 (quoting Court's Final Jury Instructions (without citations) Instruction 31, at 47 (Doc. 2302)(“Court's Instruction”)). Troup compares the Court's Instruction with the Tenth Circuit Pattern Jury Instruction for gross negligence, which is “wanton or reckless disregard for human life, ” Tenth Circuit Pattern Jury Instructions Criminal § 2.53 cmt., at 172, and argues that, because the Court's Instruction required a mens rea of only knowledge, “the most analogous federal offense to that found by the jury is involuntary manslaughter, ” so the Court should calculate Troup's base offense level based on the underlying crime being involuntary manslaughter, which is 12. Objections at 9 (citing U.S.S.G. § 2A1.4).

         Troup also objects to the 2-level adjustment that the USPO imposes under U.S.S.G. § 3A1.1(b)(1) for a vulnerable victim in both Counts 1 and 3, asserting that the adjustment is not applicable. See Objections at 9. Troup maintains that the PSR “does not explain why the Vulnerable Victim adjustment would apply. There is nothing in this case to suggest that there was something that made the victims (themselves members of a violent gang) particularly susceptible to criminal conduct.” Objections at 9. Troup likewise objects to the USPO's imposition of a 2-level adjustment under U.S.S.G. § 3A1.3 for physical restraint, arguing that the adjustment is inapplicable and inappropriate. See Objections at 10. Troup argues that, because Castillo and Sanchez were strangled to death, “[w]hatever physical restraint took place was part and parcel of the crime itself.” Objections at 10.

         Next, Troup disagrees with the USPO's conclusion that a mitigating role adjustment is not warranted. See Objections at 10. Troup notes that “the SNM was a powerful prison gang” when Castillo and Sanchez were killed, and that “[t]here was testimony about ‘orders' coming from higher ups in the SNM.” Objections at 10 (internal quotation marks for emphasis). Troup asserts that his “role in both homicides could only be described as minor, particularly when compared to the killers: Jaramillo (who was immunized) and Alonso.” Objections at 10. Accordingly, Troup requests that the Court apply a 2-level reduction for his minor role under U.S.S.G. § 3B1.2(b).

         Troup's final objection to the Guidelines calculation is to the USPO's calculation of his criminal history, noting that “[p]aragraphs 60 through 68 list property crimes dating back to 1989 when Mr. Troup was 18 years old.” Objections at 10. Troup objects to the inclusion of his 1997 conviction for “Possession of a Firearm or Destructive Device by a Felon, ” PSR ¶ 65, at 19, “because the details of the offense could not be located, ” Objections at 10. Further, Troup asserts that, although he “has amassed 25 criminal history points, his criminal history is substantially overrepresented” and he requests a downward departure to a criminal history category of V under U.S.S.G. § 4A1.3. Objections at 10-11. Accordingly, Troup calculates that -- with a base offense level of 12, no adjustment for vulnerable victim or physical restraint, a 2-level reduction for being a minor participant, and the 2-level multiple count adjustment -- his total offense level is 12, and with a criminal history category of V, his Guidelines range is 27-33 months. See Objections at 11.

         Troup also objects to the USPO's recitation of some of the facts. See Objections at 2-6. First, Troup objects to the PSR's sentence: “The following information was obtained from discovery material contained in the Assistant United States Attorney's file gleaned from FBI's investigative reports.” Objections at 2 (internal quotation marks omitted)(quoting PSR ¶ 6, at 8). Troup asserts that, “when there's been a trial, as here, it is inappropriate to use ‘the Assistant United States Attorney's file' to define the offense conduct.” Objections at 2 (quoting PSR ¶ 6, at 8). Troup argues that the Court can rely on only “the statements made by witnesses under oath at trial” “to formulate the offense conduct, ” but because of some of the witnesses' “questionable credibility, ” any information on which the Court relies “must have sufficient indicia of reliability to support its probable accuracy.” Objections at 2 & n.1. Troup repeats this objection to the PSR's sentence: “The investigative material in this case is extensive, and for the purpose of being concise, the following summary captures conduct as it pertains solely to this defendant and his participation in the RICO Act case.” Objections at 2.

         Troup objects to the PSR's paragraph 17, which reflects Lawrence Torres' statement that he saw Troup removing a laundry bag string, and that he saw Gallegos and DeLeon leave Castillo's cell. See Objections at 3 (citing PSR ¶ 17, at 10). Troup maintains that, because Jaramillo testified that he used Castillo's laundry bag cord to strangle Castillo, Torres' statement “was an obvious fabrication designed to elevate Torres' potential usefulness as a witness” and that he “was simply making stuff up.” Objections at 3. Further, Troup asserts that Jaramillo killed Castillo, so, “[i]f Torres had seen anyone leaving Frank Castillo's cell, it would have been Michael Jaramillo (the killer), ” so “Torres' statement is a fabrication.” Objections at 4. Troup also notes that Jaramillo testified “that the only role Troup had (if Jaramillo is to be believed on this), was to remain downstairs, and somehow or other, keep people in their cells.” Objections at 4. Troup objects to paragraph 21 as “a terrible misstatement of the facts presented at trial, ” and asserts that the PSR “ignored and omitted the critical testimony of Michael Jaramillo.” Objections at 5 (citing PSR ¶ 21, at 10-11).

         Troup objects to paragraph 25, asserting that “[t]he inmates who entered Troup's cell were Brian Rascon, Raymond Rascon, Javier Alonso and Mr. Troup.” Objections at 5 (citing PSR ¶ 25, at 11). Troup objects to the portion of paragraph 31, which states: “While incarcerated at the SNMCF, Troup held F.S.'s legs as Alonso strangled F.S. to death in his cell, while Hernandez covered the security camera lenses and served as a lookout.” Objections at 5 (internal quotation marks omitted)(quoting PSR ¶ 31, at 12). Troup asserts that “Alonso acknowledged being the killer and stated so during his testimony, under oath, both at the time that he entered his guilty plea and at trial, ” and that “Alonso jumped on Sanchez, slammed his head into the ground and choked Sanchez until he was dead[, ]” which “only took a matter of seconds.” Objections at 5. Troup argues that he “engaged in conduct that distracted Freddie Sanchez momentarily, allowing Javier Alonso to jump on Sanchez from behind.” Objections at 6. Finally, Troup clarifies that, contrary to paragraph 84's statement that “Troup is not taking any type of psychotropic medications, ” Troup has been taking Prozac “since he was incarcerated on December 3, 2015.” Objections at 11 (citing PSR ¶ 84, at 24).

         3. The First Addendum.

         The USPO responds to Troup's Objections. See Addendum to the Presentence Report, filed May 6, 2019 (Doc. 2634)(“First Addendum”). The USPO “maintains that the underlying crimes in Counts 1 and 3 is Murder; therefore, the base offense level is 43.” First Addendum at 3. As to Troup's Objections to the vulnerable victim and restraint of victim adjustments, the USPO “maintains that the information contained in these paragraphs of the presentence report are accurate and the increases were appropriately applied.” First Addendum at 3. The USPO notes that “[s]everal Circuits have found that the enhancement for vulnerable victim is warranted when there is an assault against incarcerated or detained individuals[, ]” and reiterates that the attacks occurred outside the view of the correctional officers, inside “cells only having one entrance and exit, ” and that the victims were “not able to fight off [their] assailants or escape while being held down and strangled by multiple individuals.” First Addendum at 3. The USPO also asserts that the SNM ordered Troup to participate in the murders and his actions led to their deaths, so “[h]is role in the offense cannot be seen as mitigating; therefore, a two-level reduction is not appropriate in this case.” First Addendum at 3. The USPO maintains that the information regarding Troup's felon-in-possession conviction to which he objects “has been verified; therefore, the presentence report will remain unchanged at this time.” First Addendum at 3. The USPO also notes that Troup “has 25 criminal history points, which is almost double the amount of points needed to be placed into a criminal history category of VI, ” so “his criminal history category cannot be identified as over-represented.” First Addendum at 3. Accordingly, the USPO “maintains the defendant's total offense level, criminal history category, and guideline imprisonment range were accurately calculated.” First Addendum at 3.

         Regarding Troup's Objections to the PSR's paragraphs 6, 13, 17, 21, and 31, the USPO “maintains the information contained in these paragraphs of the presentence report is accurate[, ]” because “it was obtained directly from discovery material provided by the United States Attorney's Office.” First Addendum at 2. The USPO also notes that this information provides the Court and the “parties with historical information about the Syndicato de Nuevo Mexico.” First Addendum at 2. Further, as to paragraph 25, the USPO responds that “the names of the persons entering the defendant's cell are not necessary[, ]” because “the conduct pertains solely to the defendant and his participation in the RICO Act case.” First Addendum at 3. Accordingly, the USPO writes that “the presentence report will remain unchanged at this time.” First Addendum at 3. Finally, the USPO, “[b]y way of this addendum, paragraph 84 of the presentence report, is amended to note the defendant states he has been taking Prozac since December 3, 2015.” First Addendum at 3.

         4. The Motion.

         Troup filed his Motion on May 10, 2019, noting that he seeks a variance only if the Court agrees with the USPO's calculation of the Guidelines sentence, because Troup believes the USPO's calculation “is harsher than what is necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a).” Motion¶ 2, at 1. Troup requests that the Court focus on his history from May, 2012, to the present. See Motion ¶ 3, at 2. Troup first notes that he was a free man for about thirty-three months from his release from prison in May, 2012, until his indictment in this case in December, 2015 -- stating that he was incarcerated for about ten months during that time, because “of failed UAs due to his addiction issues.” Motion ¶ 4, at 2. Troup asserts that, while he was free, “he was a contributing member of society” -- getting married, rescuing a dog, reconnecting with his family, and working “at a job he loved with an employer who valued him” -- which Troup maintains “demonstrate[s] that he had turned his life around and was rehabilitated.” Motion ¶ 5, at 2. Troup states that “it was his addiction issues that lead him to make poor decisions which resulted in his first incarceration at age eighteen, ” and that, after being prescribed Suboxone and completing “his removal from heroin” while incarcerated at Otero County Detention Facility (“Otero County”) during the pendency of this case, he has obtained sobriety. Motion ¶ 6, at 2-3.

         Troup notes that, during the past forty-one months of his incarceration, he “has not received a single incident report or single dirty UA, [3]” Motion ¶ 7, at 3, and asserts that, because Otero County did not write up any reports of Troup's alleged threats against informants, those allegations “are frivolous, ” Motion ¶ 8, at 3. Troup admits that he “was not ‘perfect' during the past seven years, ” but asserts that “it is remarkable how well [he] has done from the time he was released from the custody of the New Mexico Corrections Department in May, 2012, to the present.” Motion ¶ 9, at 3. Troup notes that he was baptized while housed at the Torrance County Detention Facility on January 6, 2017, and that he “came into the world with many strikes against him, ” but that the past seven years “demonstrate that he has undergone significant rehabilitation and can be a contributing member of society.” Motion ¶ 11, at 3. See id. ¶ 10, at 3.

         Troup asserts that he has been punished for Sanchez' homicide, because he was moved to the PNM in 2007, after the murder, and the New Mexico Corrections Department removed five years of good time -- meaning Troup served “approximately five years' additional incarceration, most of which was served in harsh, solitary conditions.” Motion ¶ 12, at 4. Troup notes that he will have his family's support upon his release, if his sentence is not too long. See Motion ¶ 13, at 4. Troup argues that, “to avoid unwarranted sentencing disparities, ” he “should not be sentenced more harshly than the actual killers simply because he exercised his Sixth Amendment right to a trial” and asserts that, if he were to receive a harsher sentence, the right to a jury trial would be “watered down if not outright undermined.” Motion ¶ 14, at 4 (citing Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. of Books (Nov. 20, 2014), https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/). Troup posits that Jaramillo was more involved than Troup in killing Castillo and that the Rascon brothers were just involved as Troup in Sanchez' murder, but they were not charged. See Motion ¶ 15, at 5. Further, Troup asserts that “Eugene Martinez, Ruben Hernandez, Ben Clark, and Javier Alonso” were move involved or as involved in the killings, so Troup should not receive a higher sentence than any of these individuals. See Motion ¶ 15, at 5. Troup argues that “the Court should account for any possible disparities between the sentence recommended for Mr. Troup and the sentences to be imposed on Javier Alonso, Ben Clark and Ruben Hernandez.” Motion ¶ 16, at 5-6.

         Troup notes that he is now forty-seven-years old, the Castillo murder occurred eighteen years ago, the Sanchez murder occurred almost twelve years ago, and that recidivism rates decline as age increases. See Motion ¶ 17, at 6 (citing U.S. Sentencing Comm'n, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 12 (2004), https://www.ussc.gov/research/research-publications/measuring-recidivism-criminal-history-computation-federal-sentencing-guidelines). Troup asserts that the “warehousing of Mr. Troup is not necessary and is costly.” Motion ¶ 18, at 6. Troup notes former-United States Attorney General Eric H. Holder, Jr.'s speech, which provides that “[t]oo many people go to too many prisons for far too long for no good law enforcement reason, ” and that “[w]e need to ensure that incarceration is used to punish, to rehabilitate, and to deter -- and not simply to warehouse and forget.” Motion ¶ 18, at 6 (internal quotation marks omitted)(quoting Eric H. Holder, Jr., U.S. Att'y Gen., Dep't of Justice, Address at the 15th Annual National Action Network Convention (April 4, 2014)(transcript available at https://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-the15th-annual-national-action-network-convention). Troup also notes the statement by the Honorable William Ray Price, Jr., former-Chief Justice of the Supreme Court of Missouri, urging the move “from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results -- [meaning] sentencing that assesses each offender's risk and then fits that offender with the cheapest and most effective rehabilitation that he or she needs.” Motion ¶ 19, at 6-7 (internal quotation marks omitted)(quoting Nat'l Ctr. for State Courts, Using Offender Risk and Needs Assessment Information at Sentencing: Guidance for Courts from a National Working Group 3 (2011), http://www.ncsc.org/~/media/Microsites/Files/CSI/RNA%20Guide%20 Final.ahx. Troup asserts that, now, at age forty-seven, he “is prepared to be a productive member of society” and that it makes no sense to house him for life at $36, 300.00 per year, because this drains taxpayers' money and it wastes “a man's life to incarcerate him for too long.” Motion ¶ 20, at 7.

         Troup maintains that he was not involved in the 2015 incidents that spurred the investigation, and asserts that “[t]he SNM has been crushed” and is “a dying gang”; the investigation achieved its goal. Motion ¶ 21, at 7. See id. ¶ 22, at 7. Troup argues that he has already been incarcerated about nine years for the Indictment's Counts against him, including his loss of good time, and so he “is entitled to credit for time-served as of December 3, 2015.” Motion ¶ 23, at 8. Troup underscores that, upon release, he “will serve a number of years on Supervised Release[, ]” which will continue his punishment and help to guide him. Motion ¶ 24, at 8. Accordingly, Troup requests that the Court sentence him to the Guidelines range he calculated --27-33 months -- or for no more than 10-15 years. See Motion ¶ 25, at 8.

         5. The First Addendum Response.

         Troup responded to the First Addendum on May 13, 2019. See Edward Troup's Response to the Addendum to Presentence Investigation Report (PSR) (DOC. 2634) at 1, filed May 13, 2019 (Doc. 2651)(“First Addendum Response”). Troup notes his agreement with the USPO that the base offense level for his violations of 18 U.S.C. § 1959(a)(1) is calculated under U.S.S.G. § 2E1.3, which instructs that the base offense level is that of the underlying crime. See Frist Addendum Response at 10. Troup reiterates his belief that the applicable base offense level is that of involuntary manslaughter and notes that the USPO maintains her position “without explanation” that it is murder, but Troup contends that using murder as the underlying crime requires the Court “to engage in the sort of fact finding that is prohibited by United States v. Booker, 543 U.S. 220 (2005).” First Addendum ...


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