United States v. Jim

• Decision Date: 22 June 2012
• Docket Number: No. CR 10–2653 JB.,CR 10–2653 JB.
• Citation: 877 F.Supp.2d 1018
• Parties: UNITED STATES of America, Plaintiff, v. Derrick Ivan JIM, Defendant.
• Court: U.S. District Court — District of New Mexico

877 F.Supp.2d 1018

UNITED STATES of America, Plaintiff,

v.Derrick Ivan JIM, Defendant.

No. CR 10–2653 JB.

United States District Court,

D. New Mexico.

June 22, 2012.

Kenneth J. Gonzales, United States Attorney, Jack Burkhead, Mark T. Baker, Assistant United States Attorneys, Albuquerque, NM, for the Plaintiff.

Lawrence E. Chacon Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the United States' Sentencing Memorandum, filed April 5, 2012 (Doc. 149)(“USA Memorandum”); and (ii) the Defendant's Sentencing Memorandum and Objections and Comments to the Presentence Report, filed May 1, 2012 (Doc. 151)(“Objections”). The primary issues are: (i) whether Defendant Derrick Ivan Jim inflicted serious bodily injury, under U.S.S.G. § 2A3.1(b)(4), on Jane Doe; (ii) whether the Court should modify the Presentence Investigation Report's, disclosed March 9, 2012 (“PSR”), factual section, because it reflects only Plaintiff United States of America's version of events; (iii) whether the Court should modify Jim's criminal history category, because one of his previous convictions was based on a guilty plea where Jim was unrepresented by counsel; (iv) whether the Court should depart downward on Jim's criminal history category under U.S.S.G. § 4A1.3; and (v) whether the Court should vary downward to a sentence of 5–years imprisonment. The Court will grant in part and deny in part the requests in the USA Memorandum and the Objections. The Court will overrule the United States' objection to the USPO's failure to apply an enhancement for serious bodily injury. The Court also will not sentence Jim to a lifetime sentence, because the 18 U.S.C. § 3553(a) factors do not support such a high sentence. The Court will grant the United States' request that it not vary below the guideline range. The Court will sustain in part and overrule in part Jim's objections to the factual allegations in paragraphs 8 to 33 of the PSR. The Court will overrule Jim's objections to the USPO's calculation of his offense level and to his criminal history. The Court will decline to exercise its discretion to depart downwards regarding Jim's criminal history category. The Court will not vary downward and will sentence Jim to 360–months imprisonment.

FACTUAL BACKGROUND

In 2003, Jim was convicted for driving under the influence of liquor or drug, as well as a traffic violation, and sentenced to 90 days jail suspended. See PSR ¶ 52, at 14. In 2004, Jim was convicted of driving while intoxicated (“DWI”), and abandonment or abuse of a child, and sentenced to 364 days in jail, with 320 days suspended. See PSR ¶ 53, at 14.

Jim first met Doe on August 12, 2010 at her home. See PSR ¶ 11, at 4. Jim, Doe, and Doe's friends gathered outside her home socializing and drinking alcohol. See PSR ¶ 11, at 4. As the night progressed, Doe's friends noticed that Jim was following Doe as she went in and out of her home. See PSR ¶ 12, at 4. Sometime shortly after 1:00 a.m., Doe went inside her home and vomited. See PSR ¶ 13, at 4. When she emerged from the bathroom, she noticed Jim standing outside the bathroom door and then went to the couch to go to sleep. See PSR ¶ 13, at 4. She later opened her eyes, saw that the outside door was closed, and saw Jim standing over her. See PSR ¶ 14, at 4. Jim grabbed Doe's ankles and dragged her down the hall to her bedroom. See PSR ¶ 14, at 5. He removed her clothes, forced himself on her, and penetrated her vaginally and anally with his penis. See PSR ¶ 14, at 5. Doe testified that Jim caused her overwhelming pain, that she tried to fight him off, and that the struggle moved from her bedroom to the laundry room. See PSR ¶ 15, at 5. Jim fled out the laundry room door and headed north. See PSR ¶ 16, at 5.

PROCEDURAL BACKGROUND

On August 30, 2011, Jim was arrested for the sexual assault of Doe. SeeMemorandum Opinion and Order at 1, filed November 22, 2011, 2011 WL 6013093 (Doc. 53)(“MOO”). A federal grand jury indicted Jim on one count of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(a)(1), and 2246(2)(A). See Redacted Indictment at 1, filed September 16, 2010 (Doc. 13)(“Indictment”). On February 8, 2011, Jim and Plaintiff United States of America entered into a plea agreement, and Jim pled guilty to the Indictment in a plea colloquy before the Honorable Richard Puglisi, Chief United States Magistrate Judge. See Plea Agreement at 1, filed February 8, 2011 (Doc. 25).

On September 19, 2011, Jim filed his Motion for an Order to Vacate the Sentencing and to Allow Defendant to Withdraw His Plea Agreement and to Proceed to Trial. See Doc. 48 (“Motion to Withdraw Plea”). In his motion, Jim stated that, on September 10, 2011, he received a previously unavailable DNA report from the United States Attorney's Office (“USAO”). Motion to Withdraw Plea at 2. Jim asserted that he had new evidence that would impeach the alleged victim. See Motion to Withdraw Plea at 2. Jim also reiterated that he had previously written to the Court to state his concerns about the Plea Agreement and his former attorney, Federal Assistant Public Defender Jim Loonam. See Motion to Withdraw Plea at 2. The United States opposed the Motion to Withdraw Plea. See United States' Response to Motion for an Order to Vacate the Sentencing and to Allow Defendant to Withdraw His Plea Agreement and Proceed to Trial, filed October 1, 2011 (Doc. 50). In its MOO, the Court determined that it should permit Jim to withdraw his guilty plea. SeeMOO at 1. The Court found that the United States Court of Appeals for the Tenth Circuit's seven-factor test, explained in United States v. Yazzie, 407 F.3d 1139 (10th Cir.2005), weighed in favor of allowing withdrawal. SeeMOO at 12. The Court's decision relied on flaws in the plea colloquy before Chief Judge Puglisi, and the Court stated that it had doubts whether the plea entered during the plea colloquy represented a knowing and voluntary waiver of Jim's rights. SeeMOO at 22 (“[T]he Court thinks that the plea colloquy casts enough doubt on the knowing and voluntary nature of the plea that Jim has met his burden to establish a fair and just reason to withdraw his plea.”). Additionally, the Court noted, in its MOO, that Jim's admissions during the plea colloquy might be admissible and used against him at trial. SeeMOO at 24.

On December 1, 2011, a federal grand jury returned a Superseding Indictment charging Jim with two counts: (i) violations of 18 U.S.C. §§ 1153, 2241(a)(1), and 2246(2)(A), that Jim did knowingly engage in, or attempt to engage in, a sexual act with Doe, that being contact between his penis and her vulva, by using force; and (ii) violations of 18 U.S.C. §§ 1153, 2241(a)(1), and 2246(2)(A), that Jim did knowingly engage in, or attempt to engage in, a sexual act with Doe, that being contact between his penis and her anus, by using force. See Doc. 58. The Court held a jury trial from January 10, 2012 to January 13, 2012. On January 13, 2012, the jury returned its verdict and found Jim guilty on both counts. See Verdict at 1, filed January 13, 2012 (Doc. 136).

On March 9, 2012, the United States Probation Office (“USPO”) disclosed a PSR for Jim. The USPO calculates a base offense level of 30 pursuant to U.S.S.G. § 2A3.1(a)(2). See PSR ¶ 42, at 12. The PSR then applies a 4–level enhancement, pursuant to U.S.S.G. § 2A3.1(b)(1), based on the offense involving conduct described in 18 U.S.C. § 2241(a). See PSR ¶ 43, at 12. The PSR also applies a 4–level enhancement, pursuant to U.S.S.G. § 2A3.1(b)(5), based on Jim abducting Doe. See PSR ¶ 44, at 12. The USPO further enhances Jim's offense level 2 levels, pursuant to U.S.S.G. § 3A1.1(b)(1), because Doe was intoxicated and a vulnerable victim. See PSR ¶ 45, at 12. The USPO applies a 2–level enhancement, pursuant to U.S.S.G. § 3C1.1, based on Jim obstructing justice. See PSR ¶ 47, at 13. Because Jim put the United States to its burden of proof at trial, the USPO does not reduce his offense level for acceptance of responsibility. See PSR ¶ 49, at 13. Accordingly, Jim has a total offense level of 42. See PSR ¶ 50, at 14. The USPO calculates that Jim has a criminal history category of II, based on 2 criminal history points. See PSR ¶ 54, at 15. A total offense level of 42 and a criminal history category of II establishes a guideline imprisonment range of 360 months to life imprisonment. See PSR ¶ 85, at 20.

On April 5, 2012, the United States filed its USA Memorandum. See Doc. 149. The United States first asserts that the USPO correctly determined that Jim falls in criminal history category II and that his base offense level is 30. See USA Memorandum at 6. It asserts that “Jim's convictions reflect a jury finding that he used force during the rape, the facts establish that he abducted Jane Doe during the course of that rape, and the record reflects that Jim caused Jane Doe to suffer serious bodily injury.” USA Memorandum at 7. The United States contends that Jim's offense level must be increased 4–levels, pursuant to U.S.S.G. § 2A3.1(b)(1), because Jim was convicted of a violation 18 U.S.C. § 2241(a). See USA Memorandum at 7.

The United States next argues that, although the USPO's guideline calculations were otherwise correct, the Court should increase Jim's offense level an additional 2 levels, because Jim caused Doe to suffer serious bodily injury. See USA Memorandum at 8. It notes that U.S.S.G. § 2A3.1(b)(4) provides that a defendant who causes serious bodily injury is subject to a 2–level enhancement. See USA Memorandum at 8. It asserts that, in applying this subsection, the United States Court of Appeals for the Tenth Circuit has held that a 2–level enhancement for serious bodily injury is appropriate where a rape victim suffers bruises and abrasions all over her body. See USA Memorandum at 8 (citing United States v. Chee, 173 F.3d 864, 1999 WL 261017, at *7 (10th Cir. May 3,...