425 F.3d 886 (10th Cir. 2005), 03-2011, United States v. Serrata

Docket Nº:03-2011, 03-2012, 03-2019, 03-2036.
Citation:425 F.3d 886
Party Name:UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Matias SERRATA, Jr., William Fuller; Kendall Lipscomb, Defendants-Appellants/Cross-Appellees.
Case Date:October 06, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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425 F.3d 886 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,


Matias SERRATA, Jr., William Fuller; Kendall Lipscomb, Defendants-Appellants/Cross-Appellees.

Nos. 03-2011, 03-2012, 03-2019, 03-2036.

United States Court of Appeals, Tenth Circuit.

Oct. 6, 2005


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Mario Esparza, Las Cruces, New Mexico for Appellant/Cross-Appellee Serrata.

Roy R. Barrera, Sr. (Sharon S. Brown, with him on the briefs), Nicholas and Barrera, P.C., San Antonio, Texas for Appellant/Cross-Appellee Fuller.

James F. Maus, El Paso, Texas for Appellant/Cross-Appellee Lipscomb.

Bradley J. Schlozman, Deputy Assistant Attorney General (David Iglesias, United States Attorney, R. Alexander Acosta, Assistant Attorney General, Mark L. Gross, Attorney, Clay G. Guthridge, Attorney, and Lisa J. Stark, Attorney, with him on the briefs), Department of Justice, Washington, D.C., for Appellee/Cross-Appellant United States of America.

Before EBEL, HENRY, and HARTZ, Circuit Judges.

HENRY, Circuit Judge.

These cases concern the related appeals of three former correctional officers, William Fuller, Mathias Serrata, and Kendall Lipscomb, charged with criminal offenses arising out the assault of an inmate at the Lea County Correctional Facility in Hobbs, New Mexico. We exercise jurisdiction pursuant to 18 U.S.C. § 1291. We affirm each of the convictions but vacate the downward departures with respect to each defendant. We also hold that the defendants have established that the district court plainly erred when sentencing these defendants, in light of the Supreme Court's holding in United States v. Booker, 125 S.Ct. 738 (2005), and we therefore vacate each of their sentences and remand for resentencing consistent with this opinion and Booker.


A. Factual Background

These three consolidated appeals, which we have consolidated for disposition, stem from an incident that occurred at the Lea County Correctional Facility (the "Facility") on December 21, 1998, involving the three defendants. Lieutenants William B. Fuller and Matias Serrata, Jr. relocated from the Texas criminal justice system and had been working at the Facility for approximately

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three weeks at the time of the incident. Kendall Lipscomb was a correctional officer who only had approximately six months of experience at the time of the incident.

The incident began when inmate Eric Duran refused to sit in his assigned seat in the dining hall at lunchtime. After engaging in a verbal altercation with a correctional officer and resisting several direct orders, Mr. Duran was ordered to leave the dining hall, forfeit his meal, and return to his cell. Instead, Mr. Duran exited the dining hall, immediately returned through an adjacent door, and got in line for a second lunch tray. Correctional officers Gary Butler and Lipscomb then forcibly escorted Mr. Duran from the dining hall into the corridor, where they were joined by Lieutenants Fuller and Serrata.

On Mr. Fuller's instruction, the officers then took Mr. Duran to an isolated hallway known as "hallway P-15" to minimize the risk of a riot in the dining hall. Fuller Br. at 6. Once in the hallway, Mr. Fuller instructed Mr. Lipscomb to utilize the Facility's video camera, but the camera either malfunctioned during the incident or was never turned on, so there is no tape of the event. Mr. Fuller then ordered Mr. Duran to place his hands on the wall, and he complied. At this point, the government's version of the facts and the defendants' version of the facts diverge.

According to the government, Mr. Duran, and several of the eyewitnesses who testified at trial, Mr. Fuller threatened Mr. Duran, "put a fist in his face, and said, 'we're all going to fuck him up,'" as several officers and two dogs entered the hallway. Aple's Br. at 4. Mr. Duran allowed his left wrist to be cuffed but then, convinced that he was about to be beaten, said that he would not allow his other hand to be cuffed until the video camera was turned on. Id. at 5. After a sergeant in the hallway stepped forward and explained to Mr. Duran that if he submitted to handcuffing he would not be harmed, Mr. Duran removed his right hand from the wall to allow Mr. Fuller to cuff it. As his hand came off the wall, Mr. Fuller allegedly threw Mr. Duran to the ground, breaking one of his teeth. After Mr. Duran was lying on the ground face first with both hands behind his back, Mr. Fuller "'stomped' on Duran's forehead," with his boots, and Mr. Butler and Mr. Fuller, who were standing on opposite sides of Mr. Duran, proceeded to alternate kicking Mr. Duran in the head. Each officer allegedly kicked Mr. Duran in the head four or five times. Id. at 6. During the assault, which lasted 40-45 seconds, Mr. Serrata "stood within arm's reach, watched, but did not say or do anything to stop the assault." Id.

The defendants' version of the story is considerably different. According to Mr. Fuller, Mr. Duran's repeated resistance incited the other inmates in the dining hall to create a disturbance, which included verbal insults and thrown objects.

Once in the hallway, he told Mr. Duran to "cuff up," and brought in the dogs to intimidate Mr. Duran into complying with the order. Fuller Br. at 6. Mr. Duran resisted and struggled prior to being taken down to the floor. Officers Fuller and Butler were on either side of Mr. Duran, and repeatedly yelled for him to "cuff up." Id. at 6. Officer Fuller ordered a "K-9" dog unit to further intimidate Mr. Duran. Mr. Duran continued to defy the officers' orders when the dogs were brought out. After allowing one handcuff to be placed on his wrist, Mr. Duran, without permission, pulled the other arm away and turned to face the officers. Mr. Duran was, under this version of the facts, fighting with the officers to an extent that use

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of force on the part of the officers was reasonable and necessary.

Mr. Lipscomb acknowledges that when he arrived with the video camera, he handed the camera to someone else, and assisted in subduing Mr. Duran by striking him in the midsection with a closed fist and engaging the prisoner with a pain compliance technique consisting of twisting the inmate's ankle and knee.

After the incident occurred, Mr. Duran was examined by a physician, who observed that he was groggy, had abrasions on his head, neck, back, ear and eye, and had a black boot scuff mark on the right side of his head. Shortly thereafter, Mr. Duran lost consciousness and was taken to a hospital by ambulance. He was released shortly thereafter. Ultimately, Mr. Duran did not have any permanent physical injuries or physical impairment as a result of the use of force.

After the assault, Mr. Fuller apparently became concerned about coming up with an explanation for his use of force. He ordered Mr. Butler to punch himself in the face in an effort to orchestrate a false charge that Mr. Duran had assaulted Mr. Butler. Mr. Butler and Mr. Fuller then drove to the Hobbs Police Department and filed assault charges against Mr. Duran. The Hobbs Police Department filed criminal assault charges against Mr. Duran, which were later dismissed.

Mr. Fuller also met with the other officers who witnessed the event and instructed them to file false statements saying that Mr. Fuller was not present during the incident and justifying the use of force against Mr. Duran (i.e., saying that Mr. Duran fought with and resisted the officers, that he punched Mr. Butler in the face, etc.). The warden ordered the officers to re-write their reports, stating that he knew that Officer Fuller was present in the hallway. The officers rewrote nearly the same reports, except to add that Officer Fuller entered the hallway at the end of the assault and placed his foot on Mr. Duran's head to control him. According to Mr. Fuller, he "had second thoughts about covering-up his participation, and tearfully told Warden Bravo that he lied in his report the next morning." Fuller Br. at 10. According to the government, while he did admit to having been present at the event, he did not tell the Warden about the other aspects of the report that were false.

Two weeks later, the New Mexico State Police launched a criminal investigation into the attack on Mr. Duran. The defendants repeated their false statements to the police and provided the police with false documents. Eventually, the FBI joined the investigation. Several of the correctional officers who witnessed the event were accused of lying to federal investigators by sticking to their original false reports, but inexplicably, they were not charged with a crime. Over two years after the incident, a grand jury indicted Mr. Fuller, Mr. Serrata, Mr. Lipscomb, and Mr. Butler on charges of conspiracy to violate Mr. Duran's civil rights, conspiracy to obstruct justice, and witness tampering. Mr. Butler pleaded guilty to two counts and testified against his co-defendants at trial. At the end of a ten-day trial, a jury convicted the other three defendants on all counts.

B. Procedural History

The counts are summarized as follows:

Count 1 - Charges Mr. Fuller with willfully using excessive force against Mr. Duran in violation of 18 U.S.C. § 242.

Count 2 - Charges Mr. Serrata with failing to intervene to stop the assault on Mr. Duran in violation of 18 U.S.C. § 242.

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Count 3 - Charges Mr. Fuller with conspiring to violate Mr. Duran's due process rights by filing false charges against him in violation of 18 U.S.C. § 241.

Count 4 - Charges each of the defendants with conspiring to obstruct justice by...

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