United States v. Arevalo-Contreras
| Decision Date | 03 May 2022 |
| Docket Number | CR 21-0270 JB |
| Parties | UNITED STATES of America, Plaintiff, v. Jorge Alberto AREVALO-CONTRERAS, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Fred Federici, Acting United States Attorney, Letitia Carroll Simms, Assistant United States Attorney, United State Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Margaret Katze, Federal Public Defender, James N. Langdell, Assistant Federal Public Defender, Federal Public Defender Office, Las Cruces, New Mexico, Attorneys for the Defendant.
AMENDED MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendant's Motion for Downward Departure or Variance and Sentencing Memorandum, filed July 1, 2021 (Doc. 25)("Objections"). The Court held a hearing on August 3, 2021. See Notice of Sentencing, filed July 27, 2021 (Doc. 28). The primary issues are whether: (i) the Court should reduce Defendant Jorge Alberto Arevalo-Contreras’ Criminal History Category from IV to II, where Arevalo-Contreras sustained two violent felony convictions at age eighteen -- twelve years ago -- that impact significantly his criminal history score; (ii) whether the Court should conclude that the United States Sentencing Guidelines ("U.S.S.G.") § 2L1.2(b)(2) does not enhance validly Arevalo-Contreras’ sentence, where Arevalo-Contreras argues that the enhancement is invalid under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and inappropriately enhances his sentence based on an offense included already in his criminal history score calculation; (iii) whether the Court should depart downward on the basis of cultural assimilation, where Arevalo-Contreras’ family resides in the United States; (iv) whether the Court should depart downward because of Arevalo-Contreras’ age, where Arevalo-Contreras is thirty years old; and (v) what sentence would be sufficient, but not greater than necessary, to satisfy the factors listed in 18 U.S.C. § 3553(a). The Court concludes that: (i) the Court will not reduce Arevalo-Contreras’ criminal history score, because his criminal history score correctly represents both his past crimes and his likelihood of reoffending in the future; (ii) the U.S.S.G. § 2L1.2(b)(2) enhancement is valid, because both the Guidelines and the United States Court of Appeals for the Tenth Circuit have authorized district courts’ use of prior convictions to calculate a sentence enhancement and a defendant's criminal history category, and because the Sentencing Commission considered both public comment and empirical research when it updated most recently U.S.S.G. § 2L1.2, in 2018; (iii) the Court will not depart downward because of cultural assimilation under Application Note 8 to U.S.S.G. § 2L1.2, because, although Arevalo-Contreras has significant ties to the United States, he did not return to the United States because of his ties here, but rather returned because of his fear of the Mexican cartel, and because lowering Arevalo-Contreras’ sentence would endanger the American public; (iv) a downward departure because of Arevalo-Contreras’ age is inappropriate here, because Arevalo-Contreras is neither elderly nor infirm, but, instead, is young and in good health, and is likely to reoffend; and (v) a sentence of 37 months, which is a high end Guideline range is 30 to 37 months, is sufficient, but not greater than necessary, to satisfy the factors listed in 18 U.S.C. § 3553(a), given that Arevalo-Contreras has twice re-entered the country following deportations and continued to engage in criminal activity until his arrest for the underlying offense. The Court, therefore, overrules the Objections and sentences Arevalo-Contreras to 37 months.
The Court takes its facts from the Presentence Investigative Report, filed June 16, 2021 (Doc. 23)("PSR") and from evidence the United States submitted, see Notice of Lodging, filed August 18, 2021 (Doc. 34).
1. Arevalo-Contreras pled guilty to "Reentry of a Removed Alien" under 8 U.S.C. § 1326. PSR ¶ 11, at 4.
2. Arevalo-Contreras had been convicted of three crimes as a juvenile and three crimes as an adult before committing the offense at issue here. See PSR ¶¶ 23-28, at 5-7.
3. Arevalo-Contreras was born in Chihuahua, Mexico, in 1991. See PSR ¶ 37, at 8.
4. During his childhood, he did not experience abuse and had "frequent contact with his parents." PSR ¶ 37, at 8.
5. Arevalo-Contreras has two older brothers and one younger sister, all of whom reside currently in Albuquerque, New Mexico. See PSR ¶ 37, at 8.
6. Arevalo-Contreras moved to Albuquerque when he was "around eight or nine years old." PSR ¶ 37, at 8.
7. Upon arriving in Albuquerque, Arevalo-Contreras attended School on Wheels Alternative School. See PSR ¶ 48, at 10.
8. Arevalo-Contreras dropped out of school "in the ninth grade because he had to earn money for his household as his mother was struggling to pay the bills." PSR ¶ 48, at 10.
9. At age sixteen, Arevalo-Contreras was convicted of his first crime -- possessing less than one ounce of marijuana. See PSR ¶ 23, at 5.
10. When police officers approached Arevalo-Contreras, he "threw an object over the fence nearby." PSR ¶ 23, at 5.
11. The bag contained marijuana and cocaine. See PSR ¶ 23, at 5.
12. Arevalo-Contreras received a suspended sentence of six months for the
marijuana possession offense. See PSR ¶ 23, at 5.
13. Then, at age seventeen, on February 19, 2009, Arevalo-Contreras was convicted of: (i) shooting at or from a motor vehicle (causing injury); and (ii) unlawful possession of a handgun by a minor. See PSR ¶¶ 24-25, at 5-6.
14. Officers discovered the handgun possession during a traffic stop, during which "they noticed the defendant in the back seat attempting to conceal something." PSR ¶ 25, at 6.
15. After removing the car's occupants, officers saw PSR ¶ 25, at 6.
16. For both crimes, Arevalo-Contreras received an "indeterminate sentence not to exceed 2 years custody." PSR ¶¶ 24-25, at 5-6.
17. Excluding the offense at issue here, Arevalo-Contreras has been convicted of three crimes as an adult. See PSR ¶¶ 26-28, at 6-7.
18. First, Arevalo-Contreras was convicted of aggravated battery resulting in great bodily harm. See PSR ¶ 26, at 6.
19. Second, Arevalo-Contreras was convicted of battery upon a peace officer. See PSR ¶ 27, at 6-7.
20. Arevalo-Contreras "struck" a "youth care specialist ... during a physical confrontation ... while the defendant was in the custody of the Youth Diagnostic Development Center ...." PSR ¶ 27, at 6-7.
21. For this offense, Arevalo-Contreras was sentenced to eighteen months in custody, eighteen months of unsupervised probation, and two years of parole. See PSR ¶ 27, at 6.
22. Arevalo-Contreras has been a member of the Juaritos Maravilla gang. See PSR ¶ 68, at 13.
23. Third, Arevalo-Contreras was convicted of reentry of a removed alien. See PSR ¶ 28, at 7.
24. Following his sentence for his second offense, Arevalo-Contreras was deported on February 15, 2011. See PSR ¶ 27, at 6.
25. While in Mexico, Arevalo-Contreras worked in construction. See PSR ¶ 49, at 11.
26. The Mexican cartel also kidnapped and tortured Arevalo-Contreras following his deportation. See PSR ¶ 40, at 8-9.
27. Members of the cartel "burned him, electrocuted him, pulled his nails off, and threatened to kill him." PSR ¶ 40, at 8-9.
28. After his escape from the cartel, Arevalo-Contreras attempted to re-enter the United States on November 17, 2013. See PSR ¶ 28, at 7.
29. Border patrol agents discovered Arevalo-Contreras "riding in a vehicle crossing through a checkpoint on the Interstate." PSR ¶ 28, at 7.
30. Arevalo-Contreras was "attempting to conceal himself in a large luggage bag." PSR ¶ 28, at 7.
31. Arevalo-Contreras was convicted of reentry of a removed alien on November 12, 2014, and the Honorable Kenneth Gonzales, United States District Judge for the United States District Court for the District of New Mexico, sentenced him to 70 months of incarceration. See PSR ¶ 28, at 7.1
32. After serving this sentence, Arevalo-Contreras was again deported on April 2, 2019. See PSR ¶ 28, at 7.
33. When Arevalo-Contreras illegally reentered the United States in 2019, he began working at a roofing company in Albuquerque. See PSR ¶ 49, at 10.
34. Then, in January, 2020, Arevalo-Contreras began operating an auto-detailing business from his home in Albuquerque. See PSR ¶ 49, at 10.
35. On January 3, 2020, and on February 16, 2020, Arevalo-Contreras made Facebook posts demonstrating that he remains a Juaritos Maravilla gang member:
Facebook 8, filed August 18, 2021 (Doc. 34)(showing an older photograph of men making the Juaritos Maravilla gang sign, while in the comments to the photo Arevalo-Contreras and other men pose recreating the same sign); Facebook 6, filed August 18, 2021 (Doc. 34).
36. On March 8, 2020, Arevalo-Contreras married his current wife, Angel Arevalo. See PSR ¶ 42, at 9.
37. Then, on June 15, 2020, Arevalo-Contreras posted a photograph of a black semi-automatic pistol and a loaded magazine on his Facebook page:
Facebook-4, filed August 18, 2021 (Doc. 34)(showing the conversation between Arevalo-Contreras and another Facebook user in Spanish).
38. Another Facebook user commented on the photograph, in Spanish: "I'm going to sell you one like this." Affidavit in Support of An Application for a Search Warrant ¶ 13, at 9 (dated Aug. 18, 2020), filed August 18, 2021 (Doc. 34)("FBI Report").
39. Arevalo Contreras replied, "how much message inbox???," indicating that he wished to purchase the firearm. FBI Report ¶ 13, at 9.
40. Next, on June 22, 2020, Arevalo-Contreras posted a photograph on his Facebook...
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