United States v. Green
| Decision Date | 14 February 2022 |
| Docket Number | CR 06-2605 JB |
| Court | U.S. District Court — District of New Mexico |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. RICKY BARKSDALE GREEN, Defendant. |
Fred J. Federici Acting United States Attorney Renee L. Camacho Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff
Brian G. Grayson Grayson Law Office, LLC and Daniel J. Tallon Daniel J. Tallon, Attorney at Law Attorneys for the Defendant
THIS MATTER comes before the Court on the United States Probation Office's (“USPO”) Third Amended Petition for Revocation of Supervised Release, filed October 20, 2021 (Doc. 320)(“Revocation Petition”). The Court held an evidentiary revocation hearing on October 27, 2021 and November 30, 2021. See Clerk's Minutes, filed October 27, 2021 (Doc. 327); Clerk's Minutes, filed November 30, 2021 (Doc. 336). The primary issue is whether the Court should revoke Defendant Ricky Barksdale Green's supervised release, because he violated a condition of his supervised release by committing a federal, state, or local crime when he assaulted his girlfriend, Dana Havink. The Court concludes by a preponderance of the evidence that Green assaulted and strangled Havink, in violation of New Mexico law for Aggravated Battery Against a Household Member N.M.S.A. § 30-3-16. Consequently, the Court will revoke Green's supervised release.
On March 28, 2008, a jury found Green guilty of: (i) possession with intent to distribute 5 grams or more of cocaine base (ii) possession with intent to distribute less than 500 grams of cocaine; (iii) possession with intent to distribute 5 grams or more of methamphetamine; (iv) possession of a firearm in furtherance of a drug trafficking crime; and (v) being a felon in possession of a firearm or ammunition. See Jury Verdict at 1-2, filed March 28, 2008 (Doc. 181). The Honorable M. Christina Armijo, United States District Judge for the United States District Court for the District of New Mexico, sentenced Green to 180 months' imprisonment in the Bureau of Prisons' (“BOP”) custody. See Amended Judgment at 3, filed October 1, 2008 (Doc. 218). Judge Armijo also sentenced Green to eight years' supervised release. See Amended Judgment at 4. Green's mandatory supervised release conditions state: “The defendant shall not commit another federal state, or local crime.” Amended Judgment at 4. Green's mandatory supervised release conditions also state: “The defendant shall refrain from any unlawful use of a controlled substance.” Amended Judgment at 4. Green was released from BOP custody on January 8, 2020, and began his supervised release term at that time. See Revocation Petition at 1.
The Court held an evidentiary revocation hearing. See October 27, 2021, Clerk's Minutes at 1; November 30, 2021, Clerk's Minutes at 1. The Court makes the following findings of fact related to Green's violations of the supervised release conditions. Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes.
1.Aggravated Battery Violation.
1. In August 2020, Havink and Green were in an intimate relationship. See Tr. At 207:20-22 ( )(Camacho, Green).
2. On August 14, 2020, Havink was trying to remove items from her yard and cover items with a tarp before a rainstorm. See Tr. at 72:22-24 (Hacker); id. at 177:8-12 (Green).
3. While Havink was working in the yard, Havink and Green began to argue. See Tr. at 72:22-73:3 (Hacker).
4. Green grabbed Havink by the back of her neck, forced her inside her home, and strangled her, causing her to blackout. See Tr. at 73:3-9 (Hacker).[1]
5. While Havink was blacked out from the strangulation, Green caused the injury to Havink's left eye. See Tr. at 72:22-73:9 (Hacker).[2]
6. On the evening of August 15, 2020, a male called the Hobbs Police Department and informed officers that he received a text from Havink containing a picture of her face “beaten up.” Tr. at 47:10-21 (Hacker).
7. Officer Dalton Hacker and Officer Jennifer Scheller went to Havink's home late in the evening on August 15, 2020. See Tr. 53:15-54:3 (Hacker).
8. Havink's home was an “improved shed” with insulation, a bed, and electricity, but no bathroom. Tr. 55:14-21 (Hacker).
9. When the Officers arrived, Havink's face was swollen and bruised. See Tr. at 57:23-58:3 (Hacker).
10. Havink had light bruising on the upper portion of her neck. See Tr. at 78:7-11.
11. While standing in the doorway of Havink's home, Hacker asked Havink what happened to her face, and Havink told Hacker that she had fallen and hit her face on something. See Tr. at 59:18-20 (Hacker).
12. Hacker described Havink as “skittish, ” constantly checking over her shoulder and “stuttering when talking.” Tr. at 60:7-15 (Hacker).
13. Havink is roughly five feet, five inches tall and 130 pounds. See Tr. at 72:3-6 (Camacho, Hacker).
14. Green was sitting on the bed in Havink's home. See Tr. at 61:13-14 (Hacker).
15. Green is about six feet, two inches tall. See Tr. at 71:11-16 (Camacho, Hacker).
16. Hacker asked Havink to step outside and talk, and she complied. See Tr. at 63:15-20 (Hacker).
17. Green came outside and told Havink not to speak to the Officers. See Tr. at 65:17-21 (Hacker).
18. Hacker called an ambulance to the scene. See Tr. at 66:9-13 (Hacker).
19. Havink agreed to receive medical treatment. See Tr. at 66:14-16 (Camacho, Hacker).
20. Hacker entered the ambulance with Havink. See Tr. at 66:18-24 (Hacker).
21. In the ambulance, Havink told Hacker that her boyfriend, Green, caused injuries to her face. See Tr. at 69:3-7 (Hacker).
22. Havink also stated that she had been strangled and that she was afraid to speak to officers for fear of retaliation. See Tr. at 69:9-13 (Hacker).
23. Officers arrested Green early in the morning of August 16, 2020, for aggravated battery against a household member. See Tr. at 69:18-19 (Hacker).
24. Once Green was arrested and restrained inside a police vehicle, Havink told police that Green had strangled her, and that she had passed out and awoken with her eye injuries. See Tr. at 72:22-73:9 (Hacker).
25. Havink also informed the Officers that Green would not let her leave the structure she was living in. See Tr. at 75:17-76:10 (Camacho, Hacker).
26. On August 17, 2020, Green was arrested for violating his supervised release by committing the crime of Aggravated Battery on a Household Member, Interfering with Communications, and False Imprisonment. See Arrest Warrant Returned Executed, filed August 19, 2020 (Doc. 281).
2.Controlled Substances Violation.
27. On September 1, 2020, the Honorable Kevin R. Sweazea, United States Magistrate Judge for the United States District Court for the District of New Mexico, held a Detention Hearing on Green's arrest. See Clerk's Minutes, filed September 1, 2020 (Doc. 288)(“September 1, 2020, Clerk's Minutes”).
28. Magistrate Judge Sweazea released Green on his previously imposed supervised release conditions, with additional conditions of, in relevant part, no contact with the alleged victim and electronic monitoring under curfew 7:00 p.m. through 7:00 a.m. See September 1, 2020, Clerk's Minutes at 1.
29. On April 15, 2021, and April 21, 2021, Green submitted urine samples for drug testing. See Violation Report at 1.
30. Both drug tests returned positive results for cannabinoids, again, in violation of Green's supervised release conditions. See Violation Report at 1.
31. The substance abuse violations make revocation of supervised release mandatory. See Tr. at 5:2-5 (Court, Probation).
32. Green pled guilty to using substances on April 15, 2021, and April 21, 2021, in violation of his second mandatory condition of supervised release. See Tr. at 8:12-18 (Tallon); Tr. at 13:11-16 (Green).
1. The Court now will state its conclusions of law (“COLs”). The Court will begin by stating the applicable law. It will then set out the law regarding issues relevant to its analysis.
Last, the Court will present that analysis.
2. In United States v. Booker, the Supreme Court of the United States severed the mandatory provisions from the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1976 thus making the Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Sentencing Reform Act intact, including 18 U.S.C. § 3553: United States v. Booker, 543 U.S. at 261.
3. Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary, ” to comply with the four statutorily defined purposes that 18 U.S.C. § 3553(a)(2) enumerates:
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