United States v. Cleveland
| Decision Date | 25 June 2021 |
| Docket Number | No. CR 17-0965 JB,CR 17-0965 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KIRBY CLEVELAND, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Defendant Kirby K. Cleveland's Objections to the Amended Presentence Report [DKT. 178-1], filed July 28, 2020 (Doc. 181)("Objection")(brackets in the original title). The primary issue is whether the Court can apply a 6-level sentencing enhancement under United States Sentencing Guidelines ("U.S.S.G") § 3A1.2(a), which applies when a defendant commits an offense "motivated by" the victim's status as a government officer, because although Defendant Kirby Cleveland was drunk and was worried that he would be attacked by a group of men that night, he knew that he shot at a police officer, because the uniformed officer approached with flashing lights in marked vehicle. The Court concludes that K. Cleveland knew that he was shooting at a police officer, because: (i) the officer approached in a marked police vehicle with his emergency lights on before stopping K. Cleveland and his uncle; (ii) the officer was in uniform; and (iii) K. Cleveland had two opportunities to see the vehicle with its flashing lights, first when the officer stopped him, and, second when he turned around to shoot at the officer. Accordingly, the Court overrules the Objection. Although not an Objection, the Court also concludes by the preponderance of that the evidence the video evidence shows that K. Cleveland was not involved in attacking another inmate on May 2, 2019, because the video shows that K. Cleveland was in another part of the building while the attack occurred.
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 district court's district court's determination of drug quantity is a factual finding that must be supported by a preponderance of the evidence and is reviewed for clear error."). 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 See United States v. Banda, 168 F. App'x 284, 289 (10th Cir. 2006)(unpublished)( that "there is no prohibition on considering hearsay testimony at sentencing, provided it bears indicia of reliability"). The evidence and information upon which the Court relies must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 (). The Court takes its facts from the Second PSR, the Plea Agreement, filed December 2019 (Doc. 165), and the Objection.1
1. K. Cleveland, While Absconding From Supervised Release, Is Attacked and Beaten Up by Men Driving a White Van.
three-month revocation sentence, and he was placed on supervised release. See Second PSR ¶ 11, at 4; Plea Agreement ¶ 9(a).
2. On February 26, 2017, K. Cleveland absconded, after he left and failed to return to the residential reentry center in which he was ordered he reside at as part of conditions of supervision. See Second PSR ¶ 11, at 4; Plea Agreement ¶ 9(b).
3. A warrant was issued for his arrest. See Second PSR ¶ 11, at 4.
4. On either March 9 or 10, 2017,2 a group of men in a white van stopped K. Cleveland, his brother, and his father while they were traveling together, and dragged them from their truck. See Second PSR ¶ 28, 31, at 7, 8; Objection at 3-4; Transcript of Interview of Nathaniel Cleveland at 19:4-16 (taken 17, 2017), filed May 11, 2021 (Doc. 195-20)("Tr. N. Cleveland").
5. The attackers pulled K. Cleveland's father out of the truck and began to beat him. See Second PSR ¶ 79, at 16; Tr. N. Cleveland at 21:4-17.
6. K. Cleveland attempted to protect his father, but the attackers hit K. Cleveland with baseball bats and pipe, knocked out several of his front teeth, and caused other injuries, including an open wound on K. Cleveland's forehead, which a cousin later closed with homemade stitches. See Second PSR ¶¶ 31, 79, at 8, 16; Objection at 3-4.
7. K. Cleveland's father later went to the hospital, but K. Cleveland did not seek medical treatment, instead, he treated his pain by drinking. See Second PSR ¶¶ 79-80, at 16.
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Images 1-3: Photographs of K. Cleveland's stitched head injury, bruises on his shoulder
and back, and missing front teeth.3
8. On the evening of March 11, 2017, K. Cleveland; Katie Todachine , K. Cleveland's long-term partner; and their children, were at home watching movies. See Second PSR ¶ 21, at 6.
9. Over the course of the evening, K. Cleveland drank alcohol and became intoxicated. See Second PSR ¶ 21, at 6.
10. K. Cleveland was fearful that the attackers would show up at the residence. See Second PSR ¶ 21, at 6.
11. K. Cleveland thought that vehicles driving by the house might be the attackers, and he told Todachine to call the police. See Second PSR ¶ 21, at 6.
12. K. Cleveland became increasingly agitated, and at some point obtained a gun, firedshots outside, and took his daughter outside and showed her how to shoot the gun. See Second PSR ¶ 21, at 6.
13. While K. Cleveland was outside with his daughter, Todachine called the police and notified them that there was an intoxicated individual causing a disturbance. See Second PSR ¶¶ 12, 21, at 5, 6.
14. Todachine told the police that K. Cleveland is "being stupid over here, we have kids here." Second PSR ¶ 24, at 7.
15. She did not provide the police with any information about threatening men driving by the residence. See Second PSR ¶ 24, at 7.
16. K. Cleveland then came back inside and asked Todachine to drop him off at Elton Cleveland's house, which she did. See Second PSR ¶ 21, at 6.
17. Later that evening, K. Cleveland asked E. Cleveland for a ride home. See Second PSR ¶ 17, at 5; Transcript of Interview of Elton Cleveland at 5:9-11 (taken March 13, 2017), filed May 11, 2021 (Doc. 195-26)("Tr. E. Cleveland").
18. At 11:29 p.m. that evening, a Crownpoint police officer, Houston Largo, was dispatched in response to Todachine 's call. See Second PSR ¶ 12, at 5.
19. E. Cleveland was driving K. Cleveland home and they were almost back to K. Cleveland's house when E. Cleveland saw police lights in front of them. See Second PSR ¶¶ 17, 19, at 5, 6; Tr. E. Cleveland at 5:13-22.
20. E. Cleveland stopped his truck when he saw the lights. Tr. E. Cleveland at 5:17-22.
21. The vehicles were facing each other head on. See Second PSR ¶ 17, at 5.
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Image 4: Photograph of E. Cleveland's truck facing Largo's police vehicle.
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Image 5: Photograph taken after the incident of Largo's police vehicle in front of
E. Cleveland's truck.
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Image 6: Photograph of the driver's side of Largo's police vehicle.
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Image 6: Photograph of the front of Largo's police vehicle.
22. Largo exited his vehicle. See Second PSR ¶ 19, at 6; Tr. E. Cleveland at 5:24-6:2.
23. At some point, either before Largo exited his vehicle or after, K. Cleveland fledfrom scene with a .22 caliber rifle. See Second PSR ¶ 19, at 6; Objections at 2.4
24. Largo approached E. Cleveland's truck, handcuffed E. Cleveland to the truck's door, removed the keys from the truck's ignition, and at some point secured his own vehicle before pursuing K. Cleveland.5 See Second PSR ¶ 19, at 6; Tr. E. Cleveland at 5:24-6:14.
25. Largo pursued K. Cleveland. See Second PSR ¶¶ 19, 20, at 6.
26. Largo and K. Cleveland exchanged gunfire, with K. Cleveland standing about 232 feet from the where the vehicles were parked. See Second PSR ¶¶ 19, 20, at 6.
27. Largo fired two shots, neither of which hit K. Cleveland. See Second PSR ¶ 20, at 6.
28. K. Cleveland fired approximately nine shots, two of which struck Largo, and one of which fatally wounded Largo. See Second PSR ¶ 20, at 6.
29. From her home, Todachine she saw a police vehicle arrive and turn its lights on, and she saw E. Cleveland's truck. See Second PSR ¶ 22, at 6; Transcript of Interview of Katie Todachine at 5:22-24 (taken March 12, 2017), filed May 11, 2021 (Doc. 195-25)("Tr. Todachine").
30. Within about two minutes, she heard gun shots. See Second PSR ¶ 22, at 6; Tr. Todachine at 6:1-3.
31. Approximately ten minutes later, K. Cleveland knocked on the window, then wentto the front door and told Todachine : Tr. Todachine at 6:15-18. See Second PSR ¶ 22, at 6.
32. K. Cleveland told Todachine : "I thought it was that white van" with "those guys [I] got into a fight with." Tr. Todachine at 6:20-25. See Second PSR ¶ 22, at 6.
33. K. Cleveland returned to the scene. See Second PSR ¶ 23 at 6; Tr. Todachine at 7:1-3.
34. Todachine also went to the scene. See Second PSR ¶ 23 at 6.
35. K. Cleveland argued with Todachine , and then he left the scene, while Todachine stayed at the scene until other officers arrived. See Second PSR ¶ 23 at 6.
36. Around 9:00 a.m. the next morning, police found K. Cleveland hiding near his residence. See Second PSR ¶ 18 at 6.
37. K. Cleveland was still intoxicated. See Second PSR ¶ 18 at 6.
38. That afternoon, on March 12, 2017, at 2:30 p.m., Largo was declared deceased from a gunshot wound to the head. See Second PSR ¶ 15 at 6.
39. At his plea hearing on December 12, 2019, K. Cleveland ...
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