United States District Court, D. New Mexico
A PORI ATTORNEY FOR MR.
C. KRAEHE DUTCHASSISTANT UNITED STATES ATTORNEY
MEMORANDUM OPINION AND SENTENCING ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
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632 (10th Cir. 2018) (unpublished), hearing new argument from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
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.
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.
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.
ACCA Enhancement and The Supporting Documents
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.
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.
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.
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.
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.
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.
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
The First Sentencing
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.
Court then weighed the § 3553(a) factors to determine an
appropriate sentence relative to the guideline
range. 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.
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.
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.
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.
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.
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' ...