United States v. Aguilar
| Decision Date | 29 March 2023 |
| Docket Number | CR 21-0670 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KYLE AGUILAR, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Alexander M.M. Uballez United States Attorney Nicholas James Marshall Brittany DuChaussee Assistant United States Attorneys United States Attorney's Office Albuquerque New Mexico Attorneys for the Plaintiff
Buck T. Glanz, Melissa Ayn Morris, Federal Public Defender's Office, Albuquerque, New Mexico Attorneys for the Defendant
THIS MATTER comes before the Court on the United States' Sealed Objections to the PSR, filed February 9 2023 (Doc. 79)(“Objections”). The primary issues[1] are: (i) whether Defendant Kyle Aguilar is subject to a base offense level of 20 under U.S.S.G. § 2A3.4(a)(1) for having committed his crime by use of force or threats[2]; (ii) whether Aguilar is subject to corresponding 2-level increase under U.S.S.G. § 2A3.4(b)(2), because Jane Doe 1[3] was between the ages of twelve and sixteen at the time of the crime; and (iii) whether Aguilar is subject to a 5-level increase under U.S.S.G § 4B1.5(b)(1) for being a repeat and dangerous sex offender against minors. The Court concludes that: (i) a preponderance of the evidence does not support a finding that Aguilar committed his crime by force or threats under U.S.S.G. § 2A3.4(a)(1), and, accordingly, a base offense level of 12 applies under U.S.S.G. § 2A3.4(a)(3)[4]; (ii) because Aguilar is subject to a base offense level of 12 under U.S.S.G. § 2A3.4(a)(3), he is not subject to a 2-level increase under U.S.S.G. § 2A3.4(b)(2); and (iii) a preponderance of the evidence supports a finding that Aguilar touched Doe 1's genitals over her clothes on at least two occasions, which makes him subject to a 5-level increase for being a repeat-and-dangerous sex offender against minors under U.S.S.G. § 4B1.5(b)(1). Applying a base offense level of 12 pursuant to U.S.S.G. § 2A3.4(a)(3), the uncontested 2-level increase for Doe 1 being in Aguilar's custody and control pursuant to U.S.S.G. § 2A3.4(b)(3), a 5-level increase for Aguilar being a repeat-and-dangerous sex offender against minors pursuant to U.S.S.G. § 4B1.5(b)(1) -- which requires an increase to 22 at a minimum, subject to any decreases under U.S.S.G. § 3E1.1 -- and a 3-level decrease for Aguilar's acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and 3E1.1(b),[5] Aguilar's offense level is 19. Aguilar's criminal history category is II. See PSR ¶ 91, at 19. With an offense level of 19 and a criminal history category of II, Aguilar's imprisonment range is 33 to 41 months, which is within the probation-to-48-months range that the Plea Agreement which the United States and Aguilar executed under rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure provides. See Plea Agreement ¶ 11(a), at 5, filed November 16, 2022 (Doc. 63); Fed. R. Crim. P. 11(c)(1)(C).
The Court's factual background is based on the facts that the Court finds by a preponderance of the evidence. See United States v. Williams, No. CR. 17-2556 JB, 2020 WL 4016108, at *6 (D.N.M. July 16, 2020)(Browning, J.)(citing United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008)). Accord United States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008). The Court may rely upon reliable hearsay, so long as the evidence meets the preponderance-of-the-evidence standard. See United States v. Banda, 168 Fed.Appx. 284, 289 (10th Cir. 2006)(unpublished)(“[T]here is no prohibition on considering hearsay testimony at sentencing, provided it bears indicia of reliability.”).[6] The evidence and information upon which the Court relies must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).
1. In February, 2017, Doe 1 lived with her grandmother, two sisters, and three uncles -- Anthony, Jonathan, and Aguilar -- and the uncles' girlfriends. See Transcript of February 14, 2017 Interview with Doe 1 at 10:25-11:4 (Doe 1, Forensic Interviewer), filed March 13, 2023 (Doc 19)(“Doe 1 Tr.”); id. at 11:12-16 (Doe 1, Forensic Interviewer); Transcript of February 22, 2017 Interview with Jane Doe 2 at 10:6-11:6 (Doe 2, Forensic Interviewer), filed March 13, 2023 (Doc. 91)(“Doe 2 Tr.”); PSR ¶ 17, at 6.
2. The incidents occurred at Doe 1's grandmother's home, which is on the San Felipe Pueblo Indian Reservation. PSR ¶ 16, at 6.
3. At the time the incidents occurred, Doe 1 was twelve years old. See Doe 1 Tr. at 32:1-2 (Doe 1, Forensic Interviewer); PSR ¶¶ 16, 21, at 6.
4. At the time the incidents occurred, Aguilar was thirty-four years old. See PSR ¶ 21, at 6.
5. The first incident occurred on a Sunday, during a Dallas Cowboys football game, when Aguilar was drunk and trying to get Doe 1's attention, which caused Doe 1 to go to her room and lock the door. See Doe 1 Tr. at 18:6-20 (Doe 1, Forensic Interviewer); PSR ¶ 13, at 5.
6. As Doe 1 was about to take a nap, Aguilar unlocked the door to Doe 1's bedroom, got into her bed, pulled down the sheets, and touched Doe 1's thigh and vagina over her clothes.[7] See Doe 1 Tr. at 18:20-19:1 (Doe 1); id. at 25:14-19 (Doe 1, Forensic Interviewer); id. at 29:630:22 (Doe 1, Forensic Interviewer); id. at 31:1-32:1 (Doe 1, Forensic Interviewer); id. at 38:17-39:8 (Doe 1, Forensic Interviewer); PSR ¶¶ 13, at 5, 16, at 6.
7. When Aguilar touched Doe 1's thigh and vagina, Doe 1 told Aguilar, “[m]y sisters are calling me,” left the bedroom, and joined her sisters outside the house. Doe 1 Tr. at 19:1-3 (Doe 1). See id. at 30:22-25 (Doe 1).
8. After Aguilar touched Doe 1's thigh and vagina, Doe 1 told her sisters to come inside and stay in her room with her. See Doe 1 Tr. at 21:15-20 (Doe 1).
9. Doe 1 told her sisters that Aguilar had touched her, and Doe 1's sisters said that they were scared to be around Aguilar. See Doe 1 Tr. at 30:23-25 (Doe 1).
10. Doe 1 and her sisters went to Doe 1's bedroom, locked the door, put a basket containing clothes by the door, and, when Aguilar tried to open the door, held the door shut, after which Aguilar left the house. See Doe 1 Tr. at 21:21-22:3 (Doe 1).
11. Roughly one week after the first incident, when Doe 1's friends were visiting, Aguilar was drunk and told Doe 1 to go into his room, to which Doe 1 said “no,” and hid in a closet. Doe 1 Tr. at 22:4-8 (Doe 1).
12. Aguilar went into Doe 1's room, which Doe 1 said was locked, saw her in the closet, and told her to go to his room, to which Doe 1 again said “no.” Doe 1 Tr. at 22:9-12 (Doe 1).
13. Aguilar left Doe 1's room, and Doe 1 hid on the side of the bed under blankets. Doe 1 Tr. at 22:12-13 (Doe 1).
14. Aguilar returned to Doe 1's room to look for her in the closet and under the covers, and, although Doe 1's friends told Aguilar that she was not there and had gone to the kitchen, Aguilar insisted that she was in the room. See Doe 1 Tr. at 24:6-7 (Doe 1); 27:20-25 (Doe 1); Memorandum of Interview at 1-2 (dated February 22, 2017), filed February 9, 2023 (Doc. 79-4) (“February 22, 2017 MOI”).
15. At the time Aguilar returned to Doe 1's room, Doe 1's friends and sisters were on the bed where Doe 1 was hiding under the covers, and, at one point, Doe 1 told them to lie on top of her. See Doe 1 Tr. at 24:4-13 (Doe 1); id. at 26:8-9 (Doe 1); Id. at 26:19-27:19 (Doe 1, Forensic Interviewer); id. at 28:6-24 (Doe 1, Forensic Interviewer); Supplemental Report at 2; Memorandum of Interview at 1-2 (dated April 23, 2021), filed February 9, 2023 (Doc. 79-3)(“April 23 MOI”); February 22, 2017 MOI at 1-3.
16. When Doe 1's friends and sisters moved on the bed, Aguilar saw where Doe 1 was lying, touched Doe 1's vagina with his hand over the blanket, and tried pulling off the blanket onto which Doe 1 was holding. See Doe 1 Tr. at 22:14-19 (Doe 1); id. at 24:4-13 (Doe 1); id. at 24:1924 (Doe 1, Forensic Interviewer); id. at 26:2-4 (Doe 1); id. at 28:2-4 (Doe 1); id. at 28:25-29:5 (Doe 1, Forensic Interviewer); id. at 39:7-40:7 (Doe 1, Forensic Interviewer); PSR ¶ 14, at 6; April 23 MOI at 1-2; February 22, 2017 MOI at 1-3.
17. When Aguilar was touching Doe 1 over the blanket, he told her to go to his room, and she said, “no,” which made Aguilar angry and caused him to say “just come here.” Doe 1 Tr. at 22:16-19 (Doe 1).
18. Doe 1 screamed after Aguilar touched her. February 22, 2017 MOI at 1-2.
19. As Aguilar tried to pull the blankets off Doe 1, an opening in the blankets emerged through which Aguilar touched Doe 1's vagina over her clothes. Doe 1 Tr. at 26:6-8 (Doe 1); Id. at 26:13-17 (Doe 1; Forensic Interviewer); id. at 39:7-40:7 (Doe 1, Forensic Interviewer); PSR ¶ 14, at 6.
20. Aguilar touched Doe 1 over her clothes by wandering and searching with his hands “all over the place” in an attempt to touch her “private areas,” and the touching lasted “for a while.”
21. When Aguilar touched Doe 1's vagina over her clothes, Doe 1 told Aguilar to stop, and started kicking him. See Doe 1 Tr. at 26:8-10 (Doe 1); id. at 40:7 (Doe 1).
22. Aguilar started laughing, told Doe 1 to go to his room, and left Doe 1's room. See Doe 1 Tr. at 26:10-12.
23. After Aguilar touched Doe 1 through the blanket, he returned to try to re-enter Doe 1's room, and Doe 1 and her friends proceeded to hold the door closed as Aguilar tried to unlock it, before returning to his own room. See Doe 1 Tr. at 22:20-23:1 (Doe 1).
24. Doe 1 wanted to tell another uncle, Anthony, about the second...
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