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United States v. Dutch

United States District Court, D. New Mexico

October 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARC DUTCH, Defendant.

          BRIAN A PORI ATTORNEY FOR MR.

          GEORGE C. KRAEHE DUTCHASSISTANT UNITED STATES ATTORNEY

          MEMORANDUM OPINION AND SENTENCING ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         On September 26, 2019, this Court held a resentencing hearing as to Defendant Marc Dutch. Doc. 69. At issue was whether the government has carried its burden on remand of establishing by a preponderance of the evidence that Mr. Dutch qualifies for a mandatory 15-year term of imprisonment under the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e). After carefully considering the Tenth Circuit's order and judgment in United States v. Dutch, 753 Fed.Appx. 632 (10th Cir. 2018) (unpublished), hearing new argument from the parties, and once again reviewing the Shepard documents submitted in this case, the Court concludes that the government still has not carried its burden of establishing by a preponderance of the evidence that Mr. Dutch has three prior violent felony convictions “committed on occasions different from one another.” § 924(e)(1). The Court accordingly finds that the ACCA does not apply.

         Having again considered the need to impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes set forth in 18 U.S.C. § 3553(a), the Court hereby resentences Mr. Dutch to a term of 60 months' imprisonment in the Bureau of Prisons as to Count 1 of the indictment, charging him with Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). It additionally re-imposes a term of three years of supervised release and the special conditions set forth below.

         BACKGROUND

         I. The Instant Offense

         The events giving rise to this case occurred on January 27, 2016. Doc. 27 at 4. On that date, officers with the Albuquerque Police Department responded to the area of 4000 Camino De La Sierra in reference to a vehicle that had crashed into a wall. Id. A search of the Motor Vehicle Database revealed the vehicle to be registered to the defendant, Mr. Dutch. Id. Responding officers soon made contact with Mr. Dutch, who had reportedly fled the scene and was standing on a nearby sidewalk with his hands in his jacket pockets. Id. Officers commanded Mr. Dutch to remove his hands from his pockets, but he initially refused and began to walk away. Id. at 4-5. After receiving additional commands, Mr. Dutch eventually complied and was taken into custody. Id. at 5. Officers then patted him down and recovered a loaded .22LR caliber revolver from his front right jacket pocket. Id. They also recovered a five-dollar bill containing a crystalline substance which field-tested positive for methamphetamine, and a loaded syringe with a clear substance that was also determined to be methamphetamine. Id. Mr. Dutch appeared intoxicated. Id.

         On April 12, 2016, Mr. Dutch was charged in a one-count indictment with Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). Doc. 2. The indictment charged him with knowingly possessing the .22 caliber revolver and two rounds of ammunition on January 27, 2016, while having been convicted of three prior felonies: auto burglary, embezzlement of a motor vehicle, and bank robbery. Id. He pled guilty to the indictment on November 7, 2016. Doc. 26.

         II. The ACCA Enhancement and The Supporting Documents

         In its initial Presentence Report filed on December 9, 2016, probation found that Mr. Dutch “has at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions.” Doc. 27 ¶ 31. It concluded that he is therefore “an armed career criminal… subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).” Id. The predicate offenses probation relied on in applying the ACCA enhancement were Mr. Dutch's 2006 federal convictions for Bank Robbery in case No. 05-CR-02769-002JC. Id. Finding these convictions to satisfy the ACCA's requirements, probation applied a five-level enhancement to Mr. Dutch's Base Offense Level. Id. It also noted that, under § 924(e), the Court was required to impose a term of imprisonment of at least 15 years. Doc. 27 ¶ 103.

         In his original Sentencing Memorandum, Mr. Dutch raised several objections to probation's finding that the ACCA applied. Doc. 33 at 3-5. He argued that the definition of “different occasions” in § 924(e) is unconstitutionally vague in violation of the Fifth Amendment; that the government could not carry its burden of showing that Mr. Dutch's convictions for bank robberies occurred on different occasions; and that applying the ACCA's mandatory minimum sentence would result in cruel and unusual punishment in violation of the Eighth Amendment. Id.

         In response, the government argued that the ACCA should apply, and that Mr. Dutch's bank robbery convictions were committed on three separate occasions. Doc. 34 at 1, 10-11. In support, it submitted three documents from the 2006 bank robbery case: the ten-count indictment, dated December 28, 2005 [Doc. 34-1]; Mr. Dutch's plea agreement, dated July 19, 2006 [Doc. 34-2]; and the criminal judgment, dated November 15, 2006 [Doc. 34-3]. The government did not submit a transcript of Mr. Dutch's plea colloquy from the plea hearing in the case.

         As the Court will discuss in depth below, the documents the government submitted from the 2006 case are exceedingly sparse and ambiguous and therefore fail to explain what exactly Mr. Dutch admitted to in connection with the convictions. The plea agreement does not contain a recitation of the factual basis for the plea or a statement of the offense elements Mr. admitted to committing. It simply states “[t]he defendant hereby agrees… to plead guilty to Counts 1, 6, and 7 of a seven-count indictment charging violation [sic] ¶ 18 U.S.C. § 2113, that being Bank Robbery, and 18 U.S.C. § 2, that being Aiding and Abetting.” Doc. 34-2 at 2.

         As for the indictment, the three counts to which Mr. Dutch agreed to plead guilty appear to correspond to three separate bank robberies that occurred on different dates and at different banks in Albuquerque in 2005. Doc. 34-1 at 1, 3-4. Count 1 corresponds to a robbery that occurred on November 12, 2005 at the First Financial Credit Union located at 2700 San Mateo Boulevard NE; Count 6 corresponds to a robbery that occurred on November 25, 2005 at the Ironstone Bank located at 7300 Jefferson NE; and Count 7 corresponds to a robbery that occurred on November 26, 2005 at the Sandia Laboratory Federal Credit Union located at 3707 Juan Tabo Boulevard NE. Id.

         However, each of these counts charge two other individuals in addition to Mr. Dutch: George Marvis Hyatt and Natalie Angelique Gutierrez. Id. Each of the counts also charge both substantive bank robbery in violation of 18 U.S.C § 2113(a) and aiding and abetting in violation of 18 U.S.C. § 2. Id.

         The final document the government submitted in relation to the 2006 case is the criminal judgment, filed on November 11, 2006. Doc. 34-3. The first page of the judgment confirms that Mr. Dutch pled guilty to Counts 1, 6, and 7 of the indictment. Id. at 1. It then records that he was adjudicated guilty of Bank Robbery on each of these counts and notes that each offense ended on a different date.[1] Id.

         III. The First Sentencing

         The Court considered Mr. Dutch's objection to the application of the ACCA at his first sentencing hearing held on October 12, 2017. Doc. 41. After reciting the relevant caselaw, the Court concluded that “the government ha[d] failed to meet its burden under Shepard of providing the reliable evidence that the prior offense occurred on occasions different from one another.” Doc. 42 at 14:7-10 (Transcript of Oct. 12, 2017 Sentencing). Although the Court briefly noted the lack of detail in the Shepard documents submitted by the government, in granting Mr. Dutch's objection the Court primarily relied on its finding that the robberies were part of one “ongoing drug-fueled criminal offense.” Tr. at 13:22-14:6, 14:10-11. It pointed out that in United States v. Delossantos, 680 F.3d 1217, 1220 (10th Cir. 2012), the Tenth Circuit held that a defendant's prior convictions were committed on “occasions different from one another” for the purposes of the ACCA because he had a “meaningful opportunity to cease his illegal conduct.” Tr. at 14:21- 15:3. Noting Mr. Dutch's long history of drug addiction and his heavy drug use during the robberies, the Court found that he did not have a “meaningful opportunity” to cease his criminal conduct and accordingly ruled that the ACCA enhancement did not apply. Tr. at 15:4-19, 16:12- 15.

         The Court then weighed the § 3553(a) factors to determine an appropriate sentence relative to the guideline range.[2] Tr. at 18:2-14. As to Mr. Dutch's history and characteristics, the Court noted that he had a tumultuous and troubled childhood. Tr. at 18:15-16. Mr. Dutch's father was an alcoholic who physically abused his mother and once made Mr. Dutch drink several beers at a young age as punishment, causing him to get sick and vomit. Tr. at 18:17-21. In 1994, Mr. Dutch's parents divorced, and his mother moved from Albuquerque to Illinois. Tr. at 18:22-24. She then fell into alcoholism, and his father began to use crack cocaine. Tr. at 18:25-19:1. In 2010, Mr. Dutch's father committed suicide. Tr. at 19:11-12. Mr. Dutch has an older brother, three stepsiblings, and a half-sister, but no longer has a close relationship with his siblings. Tr. at 19:12-16. He is unmarried and has no children. Tr. at 19:11.

         The Court additionally noted Mr. Dutch's struggles with mental illness and long history of substance abuse. He reported attempting suicide at least twice in the past and suffering from posttraumatic stress disorder as a result of being involved in a prison riot while a federal inmate in Terre Haute, Indiana. Tr. at 19:17-21. As to substance abuse, Mr. Dutch began drinking alcohol at the age of 8, using marijuana at the age of 9 or 10, using crack cocaine when he was about 15, and using methamphetamine when he was 17, which he used up until his arrest for the present offense. Tr. at 19:22-20:1. Mr. Dutch was clean from illegal substances from January 2015 to January 2016, but then relapsed. Tr. at 20:1-2. He also has a history of gambling addiction, which contributed to his relapse and his use of methamphetamine leading up to the instant offense. Tr. at 20:3-5.

         With respect to the need for the sentence imposed to reflect the seriousness of the offense, the Court noted that Mr. Dutch's conduct put the public and law enforcement officers at risk of injury or death, but that he accepted responsibility for his actions. Tr. at 20:6-11.

         With respect to deterrence, the Court noted that although Mr. Dutch has an extensive criminal history, most of it appears to have been related to his serious drug addiction and aggravating struggles with mental illness. Tr. at 20:25-21:2. The Court further noted its belief that a combination of an appropriate period of imprisonment, combined with proper drug and mental health treatment, should help Mr. Dutch avoid recidivating. Tr. at 20:12-15.

         Finally, with respect to rehabilitation, the Court noted that Mr. Dutch is desperately in need of substance abuse treatment-both during his imprisonment and after his release-and mental health treatment to address his extremely difficult childhood. Tr. at 20:19-24.

         Considering all of the factors set forth in § 3553(a), especially Mr. Dutch's “very difficult and painful childhood, his drug addiction and his mental illness, ” the Court concluded that a downward variance was appropriate in this case. Tr. at 21:3-6. It accordingly sentenced Mr. Dutch to a term of 60 months' ...


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