United States v. Gonzales

• Decision Date: 16 February 2016
• Docket Number: No. CR 14–0922 JB,CR 14–0922 JB
• Citation: 163 F.Supp.3d 1078
• Parties: United States of America, Plaintiff, v. Jasonn Gonzales, Defendant.
• Court: U.S. District Court — District of New Mexico

163 F.Supp.3d 1078

United States of America, Plaintiff,

v.Jasonn Gonzales, Defendant.

No. CR 14–0922 JB

United States District Court, D. New Mexico.

Signed February 16, 2016

Damon P. Martinez, United States Attorney, Tara C. Neda, Stephen R. Kotz, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff

Brian A. Pori, Federal Public Defender, Albuquerque, New Mexico, Attorney for the Defendant

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Sentencing Memorandum, filed November 20, 2014 (Doc. 62)(“Sentencing Memorandum”). The Court held a sentencing hearing on December 4, 2014. The primary issues are: (i) whether the Court should impose a 16–level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1), because the intended loss exceeded $1,000,000.00; (ii) whether the Court should impose a 4–level enhancement under § 2B1.1(b)(2)(B), because the offense involved fifty or more victims; (iii) whether the Court should impose a 2–level enhancement pursuant to § 2B1.1(b)(10)(C), because the offense involved sophisticated means; (iv) whether the Court should impose a 4–level aggravated role enhancement under § 3B1.1(a); (v) whether the Court should grant Defendant Jasonn Gonzales a downward departure under § 5H1.3 based on his mental and emotional health, and/or under § 5H1.4 based on his physical condition, including drug or alcohol abuse, or gambling addiction; (vii) whether the Court should grant Gonzales a downward departure or variance based on his cooperation with law enforcement, his post-offense rehabilitation efforts, his “extraordinary” acceptance of responsibility, his educational and vocational skills, his long and steady employment history, his lack of guidance as a youth, or based on the need to avoid unwarranted sentencing disparities; and (viii) what restitution the Court should impose upon Gonzales. Gonzales' objections to the PSR are sustained in part and overruled in part. The Court sustains Gonzales' objection to paragraph 71 of the Original PSR, which imposed a 2–level enhancement under § 2B1.1(b)(11)(C)(i). The Court also sustains in part Gonzales' eighth objection—to paragraph 136 of the PSR—to the extent that it varies from the Guidelines. The Court overrules all other objections and denies all requests for a downward departure. The Court will vary, but not as much as Gonzales requested. Finally, the Court has made a diligent effort to avoid any procedural or substantive error.

FACTUAL BACKGROUND

The Court takes its facts from the Presentence Investigation Report (re-disclosed November 25, 2014)(“PSR”), which the United States Probation Office (“USPO”) prepared. The Court will first outline the facts of Gonzales' offense. The Court will then describe Gonzales' criminal history, his other personal characteristics, and his education and financial condition.

1. The Offense of Conviction.

From January 2009 to May 2012, Gonzales and co-Defendant Gerald Archuleta, along with other unindicted individuals, took part in a conspiracy to devise a scheme to defraud and obtain money, specifically unemployment insurance benefits, from the Texas Workforce Commission, Colorado Department of Labor and Employment, and New Mexico Department of Workforce Solutions by means of materially false and fraudulent pretenses and representations and, for the purpose of executing the scheme and artifice, did knowingly cause the United States Postal Service and commercial interstate carrier to move and deliver envelopes containing debit cards by which benefits were paid. See PSR ¶ 5, at 4.

To carry out their scheme, Gonzales and Archuleta fraudulently obtained “names, social security numbers, and dates of birth of individuals without such individuals' knowledge.” PSR ¶ 6, at 5. Further, “the defendants provided TWC, CDLE, and NMDWS with false and fictitious quarterly reports listing non-existent companies that reflected the names of individual identities as the employees of the fictitious companies.” PSR ¶ 6, at 5. “The defendants would then apply for UI benefits under such individuals' identities without their knowledge or authority and provide TWC, CDLE, and NMDWS with the names of false and fictitious last employing units (LEUs) and LEU addresses that they controlled.” PSR ¶ 6, at 5. To provide fictitious LEU addresses, Gonzales and Archuleta traveled across state lines for the purpose of opening various post office boxes to use in their scheme. See PSR ¶ 6, at 5. Once these post office boxes were opened, the Defendants reported the fictitious address to receive debit cards containing unemployment insurance benefits to be sent via the United States Postal Service and private commercial interstate carrier. See PSR ¶ 6, at 5. Upon receipt of these debit cards, Gonzales and Archuleta used the debit cards for their own personal use and benefit. See PSR ¶ 6, at 5. The investigation revealed that the defendants opened sixty-one postal office boxes throughout Texas, Colorado, and New Mexico. See PSR ¶ 7, at 5. The scheme fraudulently used approximately 107 victim identities and was connected to twenty fictitious companies—eleven in New Mexico, seven in Colorado, and two in Texas. See PSR ¶ 7, at 5. “The scheme resulted in a total loss of $804,735.73.” PSR ¶ 7, at 5.

2. Gonzales' Criminal History up to the Offense of Conviction.

Gonzales has two prior criminal convictions. See PSR ¶¶ 80–81, at 22. First, on December 13, 1988, Gonzales was sentenced to an unknown term of probation for indecent exposure in the Superior Court of California—Juvenile Court, Los Angeles. See PSR ¶ 80, at 22. At the time of the referral, on August 16, 1988, Gonzales was sixteen years old. See PSR ¶ 80, at 22. The PSR further states:

Court documents reflect on August 16, 1988, and August 22, 1995, the defendant did willfully, unlawfully, and lewdly expose his private parts in a public place where other people were present, offended, and annoyed. In addition, on August 11, 1998, the defendant solicited another to engage in the same conduct. Four counts for Lewd Conduct and one count of Indecent Exposure were dismissed.

PSR ¶ 80, at 22. Second, on March 9, 1991, when Gonzales was eighteen years old, he was arrested in Utah and charged with: (i) one count of attempted rape; (ii) one count of attempted sodomy/forcible sodomy; and (iii) one count of attempted burglary of a dwelling. See PSR ¶ 81, at 22. The PSR states that, on May 3, 1991, Gonzales was sentenced to fifteen years as to count one, and as to count three, not more than five years, all to run concurrently. See PSR ¶ 81, at 22. Regarding this conviction, the PSR also states:

The defendant was represented by counsel. The Information reflects that on February 10, 1991, the defendant had sexual intercourse with another who was not his spouse and without her consent. The offense was committed during the course of a burglary, where he caused physical injury to another while attempting to flee. Due to the age of the offense, law enforcement narrative reports were not available. The defendant was not arrested in this matter until March 9, 1991. Additional counts for Rape and Aggravated Burglary were dismissed.

The defendant was released to parole supervision on March 12, 2002. He successfully discharged parole on January 16, 2006. Contact with the New Mexico Adult Probation and Parole Office (provided supervision for Utah through Interstate Compact) reflects the defendant had no violations while on parole and successfully completed Sex Offender Treatment as required. The defendant is required to register as a sex offender annually, for life. H[e] first registered in the state of New Mexico in 2003, and his last registration occurred on August 13, 2014 (Registration # 48714).

PSR ¶ 81, at 22.

The New Mexico Courts Database also reflects that Gonzales was issued citations for speeding on August 8, 2006, January 2, 2013, and September 25, 2013. See PSR ¶ 84, at 23. Gonzales was convicted in two of these matters and received a deferred sentence and fees. See PSR ¶ 84, at 22. The remaining case was dismissed. See PSR ¶ 84, at 22. Finally, Gonzales was arrested on two other occasions. See PSR ¶¶ 87–88, at 23–24. On January 31, 2007, when Gonzales was thirty-four years old, he was arrested and charged for “Patronizing Prostitutes” in Bernalillo County Metropolitan Court in Albuquerque, New Mexico. PSR ¶ 87, at 23. The PSR states that, on June 26, 2007, the case was dismissed, and further explains:

The defendant was represented by counsel. Arrest reports reflect officers observed a known prostitute enter a vehicle driven by the defendant. The vehicle drove multiple back roads before stopping in an empty parking lot. Officers made contact with the defendant, who admitted he agreed to pay the prostitute $30 for fellatio.

PSR ¶ 87, at 23. On April 30, 2011, when Gonzales was thirty-eight years old, he was arrested for “Registration of Sex Offenders Information Required.” PSR ¶ 88, at 24. The PSR lists the agency involved as “Rio Arriba Magistrate Court, Espanola, NM,” and states that, on March 26, 2014, the case was dismissed. PSR ¶ 88, at 24. Regarding this incident, the PSR further explains: “The defendant was represented by counsel. He was arrested in this matter on July 28, 2011. Contact with the Rio Arriba Magistrate Court revealed that all records in this case were destroyed in 2011. There is no further information available regarding this charge.” PSR ¶ 88, at 24.

3. Gonzales' Personal Characteristics.

Gonzales was born on July 19, 1972, in Van Nuys, California. See PSR ¶ 90, at 24. Gonzales' father is employed as a machine operator in parts production. See PSR ¶ 90, at 24. “His mother, with whom he resides, owns the Purple Adobe Lavender Farm and tea room, which deals primarily in lavender plant and product sales.” PSR ¶ 90, at 24. Gonzales' parents terminated their relationship when he...