United States v. Johnson

• Decision Date: 30 October 2015
• Docket Number: No. CR 15–1028 JB,CR 15–1028 JB
• Citation: 151 F.Supp.3d 1226
• Parties: United States of America, Plaintiff, v. Orlando Jay Johnson, Defendant.
• Court: U.S. District Court — District of New Mexico

151 F.Supp.3d 1226

United States of America, Plaintiff,

v.Orlando Jay Johnson, Defendant.

No. CR 15–1028 JB

United States District Court, D. New Mexico.

Filed October 30, 2015

Damon P. Martinez, United States Attorney, Raquel Ruiz–Velez, Assistant United State Attorney, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Margaret A. Katze, Assistant 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 United States' Sentencing Memorandum and Motion for Upward Departure Pursuant to U.S.S.G. § 5K2.0

, filed June 4, 2015 (Doc. 21)(“Motion”). The Court held a sentencing hearing on June 26, 2015. The primary issues are: (i) whether upward departure is permitted under U.S.S.G. § 5K2.1 or U.S.S.G. § 5K2.21 ; (ii) whether an upward departure is appropriate where Defendant Orlando Jay Johnson stole J. Descheenie's¹ wallet, Descheenie pursued Johnson in his vehicle and recovered his wallet, and then Descheenie experienced heart trouble, and died the following day; and (iii) whether a variance from the guidelines range is warranted pursuant to the factors 18 U.S.C. § 3553(a) sets forth. For the reasons given on the record at the sentencing hearing, and for the reasons stated herein, the Court concludes that an upward departure is not legally permissible under either U.S.S.G. § 5K2.1 or U.S.S.G. § 5K2.21. Even if the Court were authorized to upwardly depart under § 5K2.1 or § 5K2.21 it would exercise its discretion to not depart. The Court concludes, however, that Johnson should be sentenced at the high end of the guidelines range pursuant to the factors set forth in 18 U.S.C. § 3553(a). The Court therefore sentences Johnson to a term of imprisonment of twelve (12) months.

FACTUAL BACKGROUND

Johnson was born in Cortez, New Mexico, and has spent nearly his entire life in New Mexico. According to the Presentence Investigation Report (disclosed May 21, 2015)(“PSR”), which the Court adopted as its factual findings,² Johnson attended Foothill High School in Albuquerque until his junior year, at which point he entered the Youth Diagnostic and Development Center (“YDDC”)³ . PSR ¶ 54, at 12. “He did not complete high school and enrolled at Dine College in August 2014 to earn his GED.” PSR ¶ 54, at 12. Johnson was scheduled to take his final test to earn his GED, but he failed to show up. See PSR ¶ 54, at 12.

The criminal activity for which Johnson was indicted took place on October 23, 2014. See PSR ¶ 8, at 3. Johnson went into a fast food restaurant in Shiprock, New Mexico, and waited inside. See PSR ¶ 8, at 3. “Johnson told investigators that he had not eaten for days prior to his arrest in the instant offense.” PSR ¶ 8, at 3. While waiting inside, Johnson saw Descheenie, an elderly man, seventy-seven years old, enter the restaurant and pay for an item with cash. See PSR ¶ 8, at 3. Johnson followed Descheenie outside and approached him as he entered his truck. See PSR ¶ 8, at 3. Johnson took Descheenie's wallet from his back pocket. See PSR ¶ 8, at 4. Descheenie yelled at Johnson as he ran away with the wallet and began to follow Johnson in his truck. See PSR ¶ 9, at 4. He caught up with Johnson after about a half-mile, at which point Johnson returned the wallet to Descheenie but kept $16.00 that was inside the wallet. See PSR ¶ 9, at 4.

Officers with the Navajo Police Department were dispatched to the scene. See PSR ¶ 10, at 4. They spoke with both Descheenie and Johnson, who told them he was sorry and did not mean to take the money. See PSR ¶ 10, at 4. “Officers searched Johnson and recovered the $16.00, at which point he was arrested.” PSR ¶ 10, at 4.

The victim told officers after he purchased coffee at the fast food restaurant and was heading back towards his truck, he felt his wallet being pulled from his pocket. He said he yelled at Johnson and began following him in his truck. When the victim did catch up with Johnson, he yelled again and Johnson approached the victim's truck and gave back the wallet and money while apologizing. The victim noticed he was still missing money, which is when the officers arrived.

PSR ¶ 11, at 4. While officers were speaking with Descheenie, who was sitting in his truck, they noticed he was sweating and shaking. See PSR ¶ 12, at 4. Descheenie said he was fine, but then started coughing and taking deep breaths. See PSR ¶ 12, at 4. The officers asked Descheenie if he had ran after Johnson, at which point the Descheenie did not answer and continued to cough

and breathe deeply. See PSR ¶ 12, at 4. Officers asked Descheenie if he wanted an ambulance, and Descheenie responded that he was fine and would be heading home. See PSR ¶ 12, at 4. As the officers were leaving the scene, however, Descheenie waved them back and requested they call for an ambulance. See PSR ¶ 12, at 4.

Descheenie was subsequently taken to the Northern Navajo Medical Center in severe respiratory distress. See PSR ¶ 13, at 4. “He was wheezing and unable to speak more than a few words upon arrival at the hospital and was very agitated.” PSR ¶ 13, at 4. Descheenie was placed on a gurney, but kept trying to stand up and remove his oxygen mask. See PSR ¶ 13, at 4.

The victim was transferred to the San Juan Regional Medical Center by San Juan Regional AirCare as there was not an Intensive Care Unit (ICU) bed available at the Northern Navajo Medical Center and he had a life threatening cardiac condition, among other ground transportation issues. There were multiple attempts to intubate the victim who was made stable and transferred to ICU due to his prior cardiac history. He underwent an emergency bronchoscopy

to help clear foreign bodies from his airways but he remained hypoxic and hypotensive. The victim also underwent an esophagogastroduodenoscopy (EGD) which showed some bleeding. Due to a concern for coronary artery disease, doctors intended to place the victim on a heparin drip, but the bleeding in his upper gastrointestinal prohibited it. The victim was hypoxic ventilator dependent, which was determined to be secondary to his cardiac issues and his aspiration. The victim continued to decline despite efforts and medication and it was determined he needed a ventricular assist device (heart pump). Doctors consulted with the victim's family regarding the risks and benefits of the device as well as alternative treatments for the victim. The family opted to transfer the victim to comfort care only. The victim became uncomfortable and began pulling at his support tube, which was removed and he died shortly afterwards.

PSR ¶ 14, at 4–5.

PROCEDURAL HISTORY

On October 29, 2014, Johnson was charged in a criminal complaint with robbery in Indian country in violation of 18 U.S.C. §§ 2111

and 1153. See Criminal Complaint, filed October 29, 2014 (Doc. 1)(“Criminal Complaint”). After two grand jury continuances, on March 26, 2015, Johnson entered into a plea agreement with the United States in which he pleaded guilty to information charging him with theft in Indian country in violation of 18 U.S.C. §§ 661 and 1153. See Plea Agreement, filed March 26, 2015 (Doc. 18)(“Plea Agreement”). The United States Probation Office (“USPO”) subsequently disclosed the PSR on May 21, 2015. The PSR indicates an upward departure may be warranted under U.S.S.G. § 5K2.21 for dismissed and uncharged conduct, but that a variance would not be appropriate. See PSR ¶ 78, at 15. Regarding U.S.S.G. § 5K2.21, the PSR does mention that Johnson was originally charged with robbery, but rather contends: “The circumstances of the instant offense are not considered in regards to the applicable guidelines section, which does not provide guidance in the event of a death in the manner it occurred in connection to the theft.” PSR ¶ 78, at 15. The PSR, however, does not discuss the possibility of an upward departure under U.S.S.G. § 5K2.1.

In its Motion, the United States argues that an upward departure is warranted under U.S.S.G. § 5K2.1

and § 5K2.21, and that an upward variance is warranted under 18 U.S.C. § 3553(a) because the theft resulted in Descheenie's death. Regarding U.S.S.G. § 5K2.21, the United States contends that the Court should upwardly depart under the guidelines, because Johnson was originally charged with robbery in Indian country in violation of 18 U.S.C. §§ 2111 and 1153, citing U.S.S.G. § 5K2.21. See Motion at 6–7. According to the United States, “after two grand jury continuances, the United States and the Defendant reached a plea agreement to which the Defendant pleaded guilty to an information charging him with theft in Indian country in violation of 18 U.S.C. §§ 661

and 1153.” Motion at 7. Based on this information, the United States concludes in its Motion: “Neither the robbery nor the theft contemplates the death of a person as part of the elements for each offense. Nevertheless, the Defendant's conduct led to the death of J.D., which is a relevant fact that warrants an upward departure in the Defendant's sentence.” Motion at 7. In his Response, Johnson maintains that an upward departure under U.S.S.G. § 5K2.1 and 5K2.21, and a variance under 18 U.S.C. § 3553, is either not permitted or is not warranted because Descheenie's death in this case was not reasonably foreseeable.

The Court held a sentencing hearing on June 26, 2015, during which the parties reiterated the arguments set forth in the briefing, particularly regarding foreseeability. The United States conceded that “the main factor that the Court [should] take into consideration for an upward departure is the death of the victim and not whether the defendant was charged or not charged with robbery.” Transcript of Sentencing Hearing at 12:17–13:6 (taken June 26, 2015) (Ruiz–Velez)(“Tr.”).⁴ Further, the United States agreed at the hearing that, while an upward departure is warranted in this case, it is not certain that the best place to rest it is on § 5K2.21

. See Tr...