United States v. Gutierrez
Decision Date | 11 June 2019 |
Docket Number | No. CR 15-4268 JB,CR 15-4268 JB |
Parties | UNITED STATES of America, Plaintiff, v. Shauna GUTIERREZ, Defendant. |
Court | U.S. District Court — District of New Mexico |
John C. Anderson, United States Attorney, Maria Ysabel Armijo, Randy M. Castellano, Assistant United States Attorneys, United States Attorney's Office, Las Cruces, New Mexico, Attorneys for the Plaintiff.
Angela Arellanes, Albuquerque, New Mexico, Attorneys for Defendant Shauna Gutierrez.
THIS MATTER comes before the Court on the Sealed Objections to the Presentence Report and Sentencing Memorandum for Defendant Shauna Gutierrez, filed March 6, 2019 (Doc. 2558)("Objections").1
The primary issue is whether the 2-level increase for the victim's sustaining serious bodily injury under § 2A2.1(b)(1)(B) of the United States Sentencing Guidelines Manual (U.S. Sentencing Comm'n 2018)("U.S.S.G.")2 applies where the Plaintiff United States of America did not present medical testimony at trial that the assault on Jose Gomez resulted in serious bodily injury. The Court concludes that medical testimony is not necessary to establish that Gomez suffered serious bodily injury. Accordingly, the Court overrules Gutierrez' Objection and applies the 2-level adjustment under U.S.S.G. § 2A2.1(b)(1)(B).
Defendant Shauna Gutierrez pled guilty to the Second Superseding Indictment Count 14, "Conspiracy to Murder J.G."; Count 15, "Attempted Murder of J.G., Assault With a Dangerous Weapon Upon J.G., Resulting in Serious Bodily Injury to J.G."; and Count 16, "Tampering With a Witness, Victim, or Informant by Physical Force or Threat," on March 29, 2018. Second Superseding Indictment at 17-18, filed March 9, 2017 (Doc. 949). See Plea Agreement at 2, filed March 29, 2018 (Doc. 2003). In her Plea Agreement, Gutierrez admits the following facts and declares them true under penalty of perjury:
and caused serious bodily injury.
Part of the reason J.G. was beaten was to prevent him from testifying in a formal proceeding against an SNM gang member. I committed these crimes and I aided and abetted others involved in the commission of these crimes.
Plea Agreement ¶ 13, at 5-6. The Plea Agreement provides that Gutierrez "agrees that the Court may rely on any of these facts, as well as facts in the presentence report, to determine the defendant's sentence, including, but not limited to, the advisory guideline offense level." Plea Agreement ¶ 14, at 6.
The Presentence Investigation Report, filed July 18, 2018 (Doc. 2350)("PSR"), elaborates on the offense conduct, providing:
, and his right eye was swollen and discolored. Upon the detective making contact with J.G., he disclosed he had been working on Charlene Johnson's residence in Belen and had been staying at her home. According to J.G., Johnson left her home at approximately 9:00 AM on February 27, 2016, and asked him to "watch the house". He fell asleep on one of the beds and was awaken with a punch to his stomach. He saw four people standing over him and identified them as Santos Gonzales, Brandy Rodriguez, Paul "Oso" Rivera, and another female he did not recognize.
23. J.G. indicated Gonzales asked, "You remember me?" and hit him in the eye. Gonzales instructed the unknown female to go to the front and watch the door. One of the individuals told J.G. that Joe Lawrence Gallegos had put a "hit" on him, and they were going to kill him. "Oso" then hit J.G. with a baton, after which, he passed the weapon to Rodriguez, and she hit J.G. J.G. noted he saw Gonzales holding a machete, and as he attempted to get off of the bed, Gonzales struck him twice on his head with the machete "like he was chopping a pineapple". According to J.G., he fell to the floor and lost consciousness.
....
PSR ¶¶ 21-23, 27, 29, 31, at 9-11. The Court notes that the United States Probation Office ("USPO") with the Addendum to the Presentence Report, filed March 22, 2019 (Doc. 2595)("First Addendum"), updated paragraph 31 to comply with Gutierrez' Objections which notes that Gutierrez was not present when the attack on Gomez took place, because her three co-Defendants took her vehicle to the scene of Gomez' attack, leaving Gutierrez at Gallegos' home. See Objections at 4 ) ; First Addendum at 3 ( ).
The USPO applies a base offense level of 33 under U.S.S.G §§ 2E1.3(a)(2) and 2A2.1(a)(1). See PSR ¶ 37, at 14. The USPO applies a 2-level increase under § 2A2.2(b)(1)(B), because Gomez sustained serious bodily injury, to which Gutierrez objects. See PSR ¶ 38, at 13; Objections at 5. Gutierrez provides that "Jose Gomez sustained two lacerations to his head, one on the crown and the second above his right temple. J.G. also had a broken nose
and his right eye was swollen and discolored." Objections at 5. Gutierrez notes that Gallegos is the only Defendant charged in Counts 14-16 who went to trial, and that "[t]he jury returned a verdict of ‘Not Guilty’ for" these Counts. Objections at 5. Gutierrez contends that "[m]edical evidence was not presented to...
To continue reading
Request your trial