United States v. Barba-Villegas
| Docket Number | CR 23-0736 JB |
| Decision Date | 27 October 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CESAR BARBA-VILLEGAS, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Alex M. M. Uballez United States Attorney Rumaldo R. Armijo Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff
Elizabeth Harrison Kennedy, Hernandez & Harrison, P.C. Albuquerque, New Mexico Attorneys for the Defendant
THIS MATTER comes before the Court on the Defendant's Sentencing Memorandum, filed August 21, 2023 (Doc 26)(“Sentencing Memo.”). The Court held a sentencing hearing on August 22, 2023. See Sentencing Minute Sheet at 1, filed August 22, 2023 (Doc 27). The primary issues before the Court are: (i) whether the Court should accept the Fast-Track Plea Agreement into which Plaintiff United States of America and Defendant Cesar Barba-Villegas entered pursuant to rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure stipulating to a 2-level downward departure pursuant to U.S.S.G. § 5K3.1, see Fast Track Plea Agreement, filed May 24, 2023 (Doc. 19)(“Plea Agreement”); (ii) whether the Court should depart downwardly or vary below the Guidelines on the basis of Barba-Villegas' cultural assimilation to the United States; (iii) whether the Court should sentence Barba-Villegas to a low-end Guideline sentence because allegedly similarly situated defendants on average receive low-end sentences; and (iv) what length of imprisonment sentence the Court should impose. The Court concludes: (i) it will not accept the Plea Agreement, because the § 5K3.1 downward departure it provides would produce a Guideline range that is too low, which does not permit the Court to impose a sentence that adequately reflects the 18 U.S.C. § 3553(a) factors; (ii) the Court will not depart downwardly or vary below the Guidelines on the basis of Barba-Villegas' asserted cultural assimilation; (iii) the Court will not sentence Barba-Villegas to a low-end Guideline sentence because the allegedly similarly situated defendants that receive low-end sentences are disanalogous to Barba-Villegas' circumstances; and (iv) the Court will sentence Barba-Villegas to 16 months' imprisonment.
The Court has reviewed the factual findings in the Presentence Investigation Report, filed June 5, 2023 (Doc 22)(“PSR”), the Sentencing Memo.'s factual assertions, and facts asserted at the sentencing hearing, and, there not being any objections to those, the Court adopts them as its own. Barba-Villegas, a twenty-nine-year-old Mexican citizen, is a resident of Santa Fe, New Mexico. See PSR at 2; Id. ¶¶ 40, 44, at 11; Sentencing Memo. at 1-2. Barba-Villegas' parents brought Barba-Villegas, then six-months old, with them when they entered the United States without authorization. See PSR ¶ 44, at 11; Sentencing Memo. at 1; Draft Transcript of Hearing at 16:16-21, taken August 22, 2023 (Armijo)(“Tr.”).[1]Barba-Villegas has five siblings who were born in the United States. See PSR ¶¶ 40, 42-43, at 11; Sentencing Memo. at 1; Tr. at 14:5-15 (Harrison); Tr. at 16:16-21 (Armijo). He grew up in Santa Fe, attending schools there, see PSR ¶ 49, at 11; Sentencing Memo. at 1. In 2013, he married a woman in New Mexico and has a child with her, although the couple divorced that same year. See PSR ¶ 45, at 12; Sentencing Memo. at 1; Tr. at 14:5-15 (Harrison).
Barba-Villegas has a lengthy criminal record, which he first started developing as a juvenile. See PSR ¶¶ 20-30, at 4-8; Tr. at 6:13 (Armijo). His first juvenile adjudication was for burglarizing a car at age fifteen, when he smashed the driver's side window and stole a purse, see PSR ¶ 20, at 4, and he subsequently acquired several similar juvenile adjudications: (i) resisting arrest, along with two dismissed counts of burglarizing a dwelling, age fifteen, see PSR ¶ 21, at 5; (ii) burglarizing a car, stealing several items including a briefcase and CPAP machine, age fifteen, see PSR ¶ 22, at 5; (iii) burglarizing a car, stealing iPod accessories and phone accessories, age sixteen, see PSR ¶ 23, at 6; (iv) possession of burglary tools, possession of marijuana and alcohol by a minor, age sixteen, see PSR ¶ 24, at 6; and (v) stealing a bottle of vodka from an Albertson's store and fleeing, age seventeen, see PSR ¶ 25, at 6.
He then racked up adult convictions until he was deported on April 26, 2012, see PSR ¶ 5, at 3: (i) Burglary (Dwelling House), along with several dismissed burglary, larceny, and damage-to-property counts, age eighteen, when Barba-Villegas “entered three separate dwellings (houses) located in Santa Fe County, New Mexico, with the intent to commit theft,” PSR ¶ 26, at 7; (ii) Shoplifting, age eighteen, when Barba-Villegas “stole a Vaporite from a Dollar Market,” PSR ¶ 27, at 7; and (iii) Resisting, Evading or Obstructing an Officer, age nineteen, when police tried to arrest Barba-Villegas after learning during a traffic stop he had an outstanding warrant, but “the defendant pulled away and tried to run from the scene[, and when p]olice stopped the defendant, . . . he continued trying to pull away and run,” PSR ¶ 28, at 7-8. After his resisting arrest conviction, the United States deported Barba-Villegas to Mexico on April 26, 2012. See PSR ¶ 5, at 3.
Barba-Villegas has no family in Mexico and knew no one there until his first deportation. See PSR ¶ 44, 48, at 11-12; Sentencing Memo. at 1; Tr. at 14:13-15 (Harrison); Tr. at 16:8-15 (Armijo). While in Mexico, Barba-Villegas started using and became addicted to heroin, which helped him cope with being in an unfamiliar country. See PSR ¶ 48, at 12. He has since reentered illegally the United States and been deported three additional times -- in February, 2013; October, 2013; and June, 2016. See PSR ¶ 34, at 9.
Two unlawful reentry convictions accompanied these three deportations: (i) Barba-Villegas was convicted on June 3, 2013, of Reentry of a Removed Alien, and the Honorable Martha Vazquez, United States District Judge for the United States District Court for the District of New Mexico, sentenced Barba-Villegas to 130 days' time served, and then the United States deported him to Mexico on October 16, 2013, see PSR ¶ 29, at 8; Sentencing Memo. at 1; Tr. at 6:5-12 (Armijo); Tr. at 12:18-20 (Harrison); and (ii) Barba-Villegas was on convicted on April 25, 2014, of Reentry of a Removed Alien, and Judge Vazquez sentenced him to 24-months imprisonment, and the United States deported him on June 16, 2016, see PSR ¶ 30, at 8; Sentencing Memo. at 1; Tr. at 6:5-12 (Armijo); Tr. at 12:18-20 (Harrison).
The 24-month sentence that Judge Vazquez imposed for the 2014 unlawful reentry conviction was based on the PSR from that time. The United States Probation Office (“USPO”) calculated his adjusted offense level at 24 and, after acceptance of responsibility reductions, his total offense level at 19, see Presentence Investigation Report ¶¶ 15, 17-19, at 4, United States v. Barba-Villegas, No. CR 14-3177 (D.N.M. Nov. 12, 2014)(Vazquez, J.)(“2014 PSR”), and his criminal history score as a 12, producing a category V criminal history, see 2014 PSR ¶ 31, at 8. Notably, on top of the base offense level of 8 for his illegal reentry offense, Barba-Villegas received a 16-level increase in his offense level because he was “was previously deported . . . after a conviction for a crime of violence,” U.S.S.G. § (b)(1)(A)(iii) (2014)(U.S. Sent'g Comm'n, amended 2016), namely the burglary in which he “entered three separate dwellings (houses) located in Santa Fe County New Mexico with the intent to commit theft,” 2014 PSR ¶ 11, at 4. See 2014 PSR ¶ 5, at 3; id. ¶ 27, at 7. Moreover, Barba-Villegas received at least 1 criminal history point for each of the juvenile adjudications described above, except for the age fifteen resisting arrest adjudication, under either U.S.S.G. § 4A1.1(c) or U.S.S.G. § 4A1.1(b). See 2014 PSR ¶¶ 21-28, at 4-7. The 2014 PSR, on these features alone, set Barba-Villegas' Guideline range at 57 months to 71 months. See 2014 PSR ¶ 58, at 12. Judge Vazquez sentenced below this range, however, with her 24-month imprisonment sentence.
After the 2016 deportation following his 24-month sentence, Barba-Villegas reentered the United States in April, 2023, see Tr. at 13:24 (Harrison), in order to visit his father who had “beg[un] suffering health problems,” Sentencing Memo. at 2. Barba-Villegas was residing with his parents, see Sentencing Memo. at 2, and “report[s] his usual occupation as a landscaping worker,” PSR ¶ 50, at 12. The United States apprehended Barba-Villegas on April 9, 2023, when a deportation officer running checks on persons in custody at the Santa Fe County Adult Detention Center identified Barba-Villegas as an illegal alien. See PSR ¶ 5, at 3. Barba-Villegas was in jail on two sets of pending State charges. On March 27, 2023, Santa Fe police officers arrested Barba-Villegas and charged him with Trafficking Controlled Substances (Possess with Intent)(Fentanyl Pill Form)(1st Offense), after “a total of 581 fentanyl pills were found in the vehicle” in which Barba-Villegas was arrested, and “the defendant admitted possessing fentanyl, crack cocaine, and methamphetamine . . . [and] also admitted resupplying himself every day with 2,000 to 3,000 fentanyl pills.” PSR ¶ 35, at 9. See Sentencing Memo. at 2.[2] Barba-Villegas was then released but arrested again on April 6, 2023, and charged with Aggravated Fleeing a Law Enforcement Officer (Injury), and Aggravated Driving While Under the Influence of Intoxicating Liquor or Any Drug (Bodily Injury)(1st Offense), after the following events:
[P]olice attempted a traffic stop on the defendant; however, he began running red lights and...
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