United States v. Gomez
| Decision Date | 23 August 2021 |
| Docket Number | CR 19-3726 JB |
| Citation | 556 F.Supp.3d 1230 |
| Parties | UNITED STATES of America, Plaintiff, v. Jonathan GOMEZ, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Fred J. Federici, Acting United States Attorney, Maria Ysabel Armijo, Randy M. Castellano, Ryan Ellison, Assistant United States Attorneys, United States Attorney's Office, Las Cruces, New Mexico, Attorneys for the Plaintiff.
Keren H. Fenderson, Fenderson Law Firm, Albuquerque, New Mexico --and-- Harry I. Zimmerman, Harry Ira Zimmerman Attorney at Law, Albuquerque, New Mexico, Attorneys for the Defendant.
THIS MATTER comes before the Court on the Defendant's Objections to Presentence Report, filed February 10, 2021 (Doc. 93)("Objections"). The primary issues are seven factual objections and one legal objection: (i) whether Defendant Jonathan Gomez told M.A.2 that the Syndicato Nuevo Mexico gang ("SNM") leader Anthony Ray Baca, a.k.a. "Pup," ordered J.M. to be killed; (ii) whether Gomez put a hit on M.A. before July, 2012; (iii) whether Gomez ordered Benjamin Clark to murder Vernon Clark; (iv) whether, sometime after March, 2014, Gomez sent a letter to Rudy Perez reassuring him that Gomez did not think Perez had snitched against SNM about J.M.’s murder; (v) whether, on Baca's behalf, Gomez ordered SNM member Conrad Villegas to assault J.R.; (vi) whether Gomez was an influential member of the SNM gang; (vii) whether Gomez was Baca's right-hand man; and (viii) whether the Court can apply a 2-level sentencing reduction under United States Sentencing Guidelines ("U.S.S.G.") § 3E1.1, because Gomez has accepted responsibility for his criminal behavior, even though he had an eight-inch sharpened metal instrument in his jail cell. The Court concludes that: (i) Gomez told M.A. that Baca ordered J.M. to be killed; (ii) Gomez did not put a hit on M.A. before July, 2012; (iii) Gomez ordered Benjamin Clark to murder Vernon Clark; (iv) sometime after March, 2014 Gomez sent a letter to Rudy Perez reassuring him that Gomez did not think Perez snitched against SNM about J.M.’s murder; (v) on Baca's behalf, Gomez ordered Villegas to assault J.R.; (vi) Gomez was an influential member of the SNM gang; and (vii) Gomez was Baca's right-hand man; (viii) Gomez has withdrawn from his associations with SNM, and his possession of the eight-inch sharpened metal instrument does not show that he does not accept responsibility; therefore, he is entitled to U.S.S.G. § 3E1.1 ’s 2-level sentencing reduction. The Court will, therefore, sustain in part and overrule in part the Objections.
The Court takes its facts from the United States Probation Office's ("USPO") Presentence Investigation Report, filed January 20, 2021 (Doc. 88)("PSR"), the Objections, the United States’ Response to Defendant's Objection to the Presentence Report, filed May 6, 2021 (Doc. 102)("Response"),3 the Addendum to the Presentence Report, filed April 29, 2021 (Doc. 100)("Addendum"), and Gomez's Reply to the Government's Response to Defendant's Objections to the Pre-sentence Investigative Report, filed May 20, 2021 (Doc. 106)("Reply"). The Court makes its findings of fact 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 on hearsay if the hearsay is reliable. See United States v. Banda, 168 F. App'x 284, 289 (10th Cir. 2006) (unpublished)("[T]here is no prohibition on considering hearsay testimony at sentencing, provided it bears indicia of reliability.").4 The evidence and information upon which the Court relies must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 ().
1. This case is one of many that stems from an investigation that the Federal Bureau of Investigation ("FBI"), New Mexico Corrections Department ("NMCD"), and the Bernalillo County Sheriff's Office ("BCSO") jointly have conducted into SNM, a powerful and violent prison gang that formed in February 1980 after a prison riot at the Penitentiary of New Mexico in Santa Fe, New Mexico ("PNM"). See PSR ¶ 11, at 7.
2. Shortly after the prison riot in February 1980, "prison gangs such as the SNM and Los Carnales began to emerge within the [NMCD]." PSR ¶ 11, at 7.
3. SNM and Los Carnales "began to organize themselves and focused primarily on gaining their own status within the
correctional institutions by employing violence upon the inmate population to assume a position of leadership and control." PSR ¶ 11, at 7.
4. SNM "expanded throughout the New Mexico penal system and has bolstered [sic] as many as 500 members since the 1980s." PSR ¶ 11, at 7.
5. "The SNM gang operates under a ‘panel’ or ‘mesa’ (Spanish for table) of leaders who issue orders to subordinate gang members." PSR ¶ 12, at 7.
6. "Despite being imprisoned and being closely scrutinized by prison officials, SNM gang leaders managed to convey orders to SNM gang members and associates throughout the prison system through a variety of means, including secret notes called ‘kites’ or ‘welas,’ coded letters, and messages conveyed by complicit visitors." PSR ¶ 12, at 7.
7. "These messages would provide SNM gang members with the gang's operational strategies to facilitate their illegal criminal activities within the penal system." PSR ¶ 12, at 7.
8. "SNM gang members discussed the proposed actions to be taken on those who cooperated against SNM gang members and associates, to include plans and agreements regarding the commission of future crimes, which involved murders, drug distribution, possession of firearms, and assaults, as well as ways to conceal these acts." PSR ¶ 13, at 7.
10. "During the mid-1980s through 2014, high-ranking SNM gang members ordered numerous assaults and murders of other SNM gang members and rival gang members within the NMCD, as well as assaults on correctional officers." PSR ¶ 14, at 8.
11. "From July 5, 1988, through September 28, 2014, at least 15 homicides and/or assaults occurred within the NMCD and Metropolitan Detention Center in Bernalillo County, each of which have been directly tied to the SNM gang." PSR ¶ 14, at 8.
12. "As a result of these murders and assaults, the SNM gang was locked down, and SNM gang leadership were transferred to out-of-state institutions." PSR ¶ 14, at 8.
13. "Due to these lockdowns and transfers, the SNM gang leadership felt they were being unjustly punished by the NMCD Cabinet Secretary." PSR ¶ 15, at 8.
14. The belief that SNM gang leadership was being unjustly punished "was based on the fact that the Cabinet Secretary's previous career as a BCSO Commander was instrumental in the investigation, prosecution, and conviction of SNM gang member Michael Astorga for the murder of BCSO Deputy Jim McGrane." PSR ¶ 15, at 8.
15. The SNM gang leadership used the fact that NMCD Cabinet Secretary Gregg Marcantel previously was employed as a BCSO commander "to propagate within its membership that the Cabinet Secretary was using his position to advance a personal agenda against the SNM gang." PSR ¶ 15, at 8.
16. "In March 2015, a high-ranking official with NMCD advised he had a credible and reliable source claiming there was an active hit placed on Marcantel and Security Threat Intelligence Unit (STIU) Administrator Dwayne Santistevan by SNM gang leadership." PSR ¶ 16, at 8.
17. Between March, 2015, and May, 2015, "NMCD personnel intercepted three letters, to and from SNM gang members, discussing the hit against the Cabinet Secretary and STIU Administrator." PSR ¶ 16, at 8.
18. The threat on Marcentel and Santistevan "culminated in late 2015, when incarcerated SNM leaders directed members on the street to acquire firearms and kill the NMCD officials." PSR ¶ 16, at 8.
19. "The FBI investigation led to the indictment of forty SNM members in December 2015 on federal charges related to Violent Crimes in Aid of Racketeering (VICAR)[5 ] and RICO[6 ] offenses." PSR ¶ 17, at 8.
20. "In April 2016, another 39 members and associates were additionally indicted." PSR ¶ 17, at 8.
21. By April, 2016, "approximately 127 individuals have been arrested in relation to this investigation." PSR ¶ 17, at 8.
22. "The FBI continues to monitor the SNM organization and target members of the organization engaged in on-going criminal activity." PSR ¶ 17, at 8.
23. Gomez, a.k.a. "Baby G." was incarcerated in NMCD between 2004 and September, 2019. See PSR ¶ 19, at 9.
24. Gomez was a SNM member while he was incarcerated between 2004 and 2019. See PSR ¶ 19, at 9.
25. Together with other SNM members, Gomez conspired to assist the SNM gang with its affairs and aims, which included multiple acts of murder, robbery, drug trafficking, and witness tampering and retaliation. See PSR ¶ 19, at 9.
26. On May 5, 2002, Gomez had an approximately eight-inch hacksaw blade hidden under the insole of a black shoe in his prison cell. See PSR ¶ 21, at 9.
27. Gomez admitted the hacksaw blade belonged to him,...
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