United States v. Gutierrez
| Citation | 505 F.Supp.3d 1179 |
| Decision Date | 06 December 2020 |
| Docket Number | No. CR 19-1828 JB,CR 19-1828 JB |
| Parties | UNITED STATES of America, Plaintiff, v. Dominic GUTIERREZ, Defendant. |
| Court | U.S. District Court — District of New Mexico |
John C. Anderson, United States Attorney, Rumaldo R. Armijo, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Sylvia A. Baiz, Assistant Federal Public Defender, Federal Public Defender's Office, Albuquerque, New Mexico, Attorney for the Defendant.
THIS MATTER comes before the Court on Defendant Dominic Gutierrez’ Objections to the Presentence Report and Sentencing Memorandum, filed November 3, 2020 (Doc. 50)("Objections"). The Court will hold a sentencing hearing on December 7, 2020. See Notice of Hearing as to Dominic Gutierrez, filed September 22, 2020 (Doc. 45). The primary issues are (i) whether the Court should sustain Gutierrez’ Objections to the United States Probation Office's (USPO) application of 1 criminal history point under U.S.S.G. § 4A1.1(e) for Gutierrez’ July, 2013, conviction of Conspiracy to Commit Aggravated Battery, see Presentence Investigation Report, ¶ 42, at 18-19, filed October 2, 2020 (Doc. 46)("PSR"), and (ii) whether the Court should sustain Gutierrez’ Objections to the USPO's application of 3 criminal history points under U.S.S.G. § 4A1.1(a), because Gutierrez’ incarceration term extended into the fifteen-year timeframe before the escape offense for which the Court sentences him, see PSR ¶ 34 and 37, at 12. The Court concludes that, a straightforward reading of U.S.S.G. § 4A1.1(e), U.S.S.G. § 4A1.1(e) incarceration term extended into the fifteen-year timeframe before Gutierrez’ escape offense for which the Court sentences him. See Dominic Gutierrez Inmate Data, filed November 9, 2020 (Doc. 51-1)("NMCD Inmate Data"); Dominic Anthony Gutierrez Offender Physical Location History, filed November 9, 2020 (Doc. 52-1)("NMCD Physical Location History"). The Court, therefore, concludes that, the USPO's application of both enhancements is not contrary to the United States Sentencing Guidelines ("U.S.S.G.").
On March 27, 2014, Gutierrez pleaded guilty to a single count of Felon in Possession of a Firearm and Ammunition in Case No. CR 13-3294 JB. See PSR ¶ 6, at 4. On July 9, 2014, Gutierrez was sentenced to a 71-month imprisonment term in the Bureau of Prisons ("BOP") custody, as well as a consecutive 3-year supervised release term. See PSR ¶ 6, at 4.
While serving his custodial sentence at United States Penitentiary Atwater, a high security federal prison in Atwater, California, Gutierrez applied to the Diersen Residential Reentry Center ("RRC"), located in Albuquerque, New Mexico. See PSR ¶ 7, at 4. Gutierrez’ application to RRC involved him reviewing and signing multiple documents. See PSR ¶ 7, at 4. Several documents specifically addressed that, if Gutierrez were to be accepted into the RRC, he would remain in the United States Attorney General's Custody until his release date. See PSR ¶ 7, at 4. The forms, in turn, outlined that Gutierrez could be prosecuted as an escapee if he were to leave the RRC for any reason without authorization. See PSR ¶ 7, at 4.
Upon approval of his RRC application, Gutierrez arrived at the RRC on May 8, 2019. See PSR ¶ 8, at 4. During Gutierrez’ intake process, RRC personnel warned him again he was about the potential risks of leaving the RRC without authorization. See PSR ¶ 8, at 4. At this time, Gutierrez reviewed and signed numerous additional documents, which addressed specifically the RRC's expectations of Gutierrez relating to contraband, employment, conduct toward staff, and cell phone usage. See PSR ¶ 8, at 4. Within a matter of weeks after Gutierrez’ arrival, however, RRC staff began noticing Gutierrez’ increasingly brazen attitude and his disregard of RRC rules and regulations, which he had previous agreed to comply. See PSR ¶ 9, at 4. On May 23, 2019, for example, Gutierrez received a write-up for being in possession of an electronic cigarette. See PSR ¶ 9, at 4. Two days later, on May 25, 2019, Gutierrez was written-up again for winking his eye at a male employee. See PSR ¶ 9, at 4. On May 28, 2019, Gutierrez received a third write-up for failure to provide a job search verification form.
In addition, the USPO received information from the New Mexico Workforce Connections ("NMWC") office regarding Gutierrez repeatedly arriving at the NMWC office to apply for jobs, but then immediately leaving. See PSR ¶ 10, at 5. The NMWC office reported that Gutierrez would go outside the office and smoke cigarettes, or he would disappear entirely. Gutierrez would then reportedly return to the NMWC office several hours later, at which time, he would request that his verification form be signed to give the impression that he had been at the NMWC office the entire time. See PSR ¶ 10, at 5.
Thereafter, on June 1, 2019, RRC staff wrote Gutierrez up for a cell phone infraction, which came about after employees reviewed Gutierrez’ cell phone's browser history and discovered that Gutierrez had been searching for pornography and social networking websites. See PSR ¶ 10, at 5. Two days later, on June 3, 2019, Gutierrez was observed to have a small bulge in his sock, which he claimed to be tissue paper. See PSR ¶ 10, at 5. When Gutierrez removed the item, however, RRC employees discovered that the tissue paper was actually a strip of the drug suboxone. See PSR ¶ 10, at 5. Gutierrez’ urine sample, collected from him, thereafter, revealed a positive result for suboxone. See PSR ¶ 10, at 5.
In addition, on the evening of June 3, 2019, the United States Marshal Service received information that Gutierrez had attempted to leave the RRC without authorization. See PSR ¶ 11, at 5. A routine headcount of Gutierrez’ assigned dorm area revealed Gutierrez’ absence, and RRC camera footage revealed him leaving RRC on foot earlier in the day. See PSR ¶ 11, at 5.
Four months passed following Gutierrez’ exit from the RRC. See PSR ¶ 12, at 5. Then, on October 18, 2019, law enforcement responded to a convenience store after receiving a call regarding a vehicle parked at one of the gas pumps outside. See PSR ¶ 12, at 5. Gutierrez, and a female, identified as Kayleigh Smith, were passed out in the vehicle. See PSR ¶ 12, at 5. When law enforcement initially made contact with Gutierrez, he was uncooperative, but later, his demeanor calmed. See PSR ¶ 12, at 5. When speaking with Gutierrez, law enforcement discovered a syringe in his immediate vicinity. See PSR ¶ 12, at 5. At this time, Gutierrez admitted to being in possession of multiple knives. See PSR ¶ 12, at 5. Gutierrez, however, was able to leave the scene because, law enforcement did not detect his accurate identity after he had provided false information to them. See PSR ¶ 12, at 5. Eventually, however, Gutierrez returned to the gas station on foot. See PSR ¶ 12, at 5. Once law enforcement discovered his true identity, Gutierrez was taken into custody on an outstanding federal warrant. See PSR ¶ 12, at 5.
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. See United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 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, 125 S.Ct. 738.
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:
18 U.S.C. § 3553(a)(2)(A)-(D).
[A] defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.
18 U.S.C. § 3551(a). To achieve these purposes, § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the nature of the offense and of the defendant's character; (iii) the available sentences; (iv) the policy favoring uniformity in sentences for defendants who commit similar crimes; (v) the need to provide restitution to victims; and (vi) any pertinent United States Sentencing Commission policy statements in effect on the date of sentencing. See 18 U.S.C. § 3553(a)(1), (3)-(7).
Although the Guidelines are no longer mandatory, both the Supreme Court and the Tenth Circuit have clarified that, while the Guidelines are one of several factors which § 3553(a) enumerates, they are entitled to careful consideration. See Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (...
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