United States District Court, D. New Mexico
C. Anderson Attorney for the United States, Paul H. Spiers
Charles Barth Assistant United States Attorneys Attorneys for
Kimberly A. Middlebrooks and Lisa Torraco and Stephen P.
McCue Federal Public Defender Brian A. Pori Assistant Federal
Public Defender Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United States
Probation Office's Amended Violation Report, sent
September 12, 2019. The primary issues are: (i) whether
Defendant Oryan Yazzie's supervised release should be
revoked; and (ii) whether Yazzie should be sentenced to an
enhanced sentence of thirty months. The Court concludes that:
(i) Yazzie's supervised release will be revoked because
he repeatedly violated his supervised release conditions; and
(ii) Yazzie will be sentenced to an enhanced sentence of
thirty months because of Yazzie's recidivism, because of
Yazzie's demonstrated propensity toward violence, and
because of the need to protect the community.
defendant asserts that the length of his sentence is
unreasonable in light of the relevant 18 U.S.C. §
3553(a) factors, he challenges the “substantive
reasonableness” of the sentence. United States v.
Lente, 647, F.3d 1021, 1031-32 (10th Cir. 2011). The
§ 3553(a) “factors include, among other things,
the nature and circumstances of the offense, the history and
characteristics of the defendant, the need to adequately
deter criminal conduct, the need to protect the public from
further crimes by the defendant, and the need to provide the
defendant with necessary medical care.” United
States v. Yazzie, 757 Fed.Appx. 772, 774 (10th Cir.
2018)(“Yazzie”). The United States Court
of Appeals for the Tenth Circuit “review[s] the
substantive reasonableness of a sentence for abuse of
discretion.” United States v. Chavez, 723 F.3d
1226, 1233 (10th Cir. 2013). Moreover, because
“‘there will be a range of possible outcomes the
facts and law at issue can fairly support,' [the Tenth
Circuit] will defer to the district court's judgment
‘so long as it falls within the realm of . . .
rationally available choices.'” Yazzie,
757 Fed.Appx. at 774 (quoting United States v.
Durham, 902 F.3d 1180, 1236 (10th Cir. 2013)).
Yazzie, the Tenth Circuit held that there were
sufficiently compelling reasons to support the district
court's decision to impose a sentence that exceeded the
applicable Guidelines range. Yazzie, 757 Fed.Appx.
at 775. The Tenth Circuit reasoned:
Although sentences falling within the applicable Guidelines
range are presumptively reasonable, see United States v.
McBride, 633 F.3d 1229, 1233 (10th Cir. 2011), this
presumption doesn't apply here because Yazzie's
24-month sentence exceeded the applicable Guidelines range of
5 to 11 months. But the fact that Yazzie's sentence fell
outside the Guidelines range doesn't necessarily render
that sentence substantively unreasonable. See Gall[
v. United States], 552 U.S. [38, ] 51[ (2007)].
Instead, it simply means we must “consider the extent
of the deviation” and determine whether the district
court's proffered justifications for that deviation are
“sufficiently compelling to support the degree of the
variance.” Id. at 50. . . .
Yazzie, 757 Fed.Appx. at 774-75. According to the
Tenth Circuit, the Honorable M. Christina Armijo, former
Chief United States District Judge for the United States
District Court for the District of New Mexico, considered
numerous factors in imposing a twenty-four-month sentence,
such as Yazzie's prior violations, Yazzie's
“demanding and hostile attitude towards people in his
community, ” and the need to “protect the
community.” Yazzie, 757 Fed.Appx. at 775. In
addition, the Tenth Circuit stressed that “Yazzie's
repeated violations of the conditions of his supervised
release are a ‘breach of trust.'”
Yazzie, 757 Fed.Appx. at 775 (quoting United
States v. Steele, 603 F.3d 803, 805 (10th Cir. 2010)).
Because the Tenth Circuit concluded that Yazzie's
sentence was not “‘arbitrary, whimsical, or
manifestly unreasonable, '” the Tenth Circuit
affirmed Chief Judge Armijo's decision. Yazzie,
757 Fed.Appx. at 775 (quoting Untied States v.
Durham, 902 F.3d at 1236). The Tenth Circuit in
Yazzie cited United States v. Steele, in
which it upheld a district court's decision to impose an
eighteen-month sentence -- thus exceeding the Guidelines
range of four to ten months in that case -- and noted that
the defendant had committed a “second breach of trust
in a fairly short time” and that such “recidivism
is generally a reason for increased sentencing
severity.” 603 F.3d at 805.
the Court's decision from the bench to increase
Yazzie's sentence above the Guideline range is likely
sufficient and warranted. As stated above, the Tenth Circuit
has instructed that “recidivism is generally a reason
for increased sentencing severity.” United States
v. Steele, 603 F.3d at 805. The Court stated from the
bench several reasons, in addition to recidivism, why it is
giving an increased sentence, and these reasons track the
§ 3553(a) factors, such as Yazzie's history and
characteristics, adequate deterrence, and protecting the
community. Previously, Chief Judge Armijo also decided to
give an increased sentence, specifically stating her
reasoning. The Court's decision is, therefore, not
“arbitrary, whimsical, or manifestly
unreasonable.” Yazzie, 757 Fed.Appx. at 775.
In sum, the Court's stated reasoning from the bench is
IS ORDERED that (i) the Defendant Oryan Yazzie's
supervised release is revoked; and (ii) the Yazzie is