United States v. Lee

• Decision Date: 19 October 2015
• Docket Number: No. CR 10–0244 JB,CR 10–0244 JB
• Parties: United States of America, Plaintiff, v. Myron Robert Lee, Defendant.
• Court: U.S. District Court — District of New Mexico

147 F.Supp.3d 1253

United States of America, Plaintiff,

v.Myron Robert Lee, Defendant.

No. CR 10–0244 JB

United States District Court, D. New Mexico.

Signed October 19, 2015

Damon P. Martinez, United States Attorney, Kyle T. Nayback, Assistant United State Attorney, Albuquerque, New Mexico, Attorneys for the Plaintiff.

John F. Robbenhaar, Assistant Federal Public Defender, Albuquerque, New Mexico, Attorney for the Defendant

MEMORANDUM OPINION¹

James O. Browning

, United States District Judge

THIS MATTER comes before the Court on the United States Probation Office's (“USPO”) Amended Petition to Revoke Supervised Release, filed June 10, 2015 (Doc. 45)(“Petition”). The Court held a revocation hearing on July 15, 2015. The primary issue is whether the Court should sentence Defendant Myron Robert Lee to a sentence at the low or high end of the Sentencing Guidelines range of 3 to 9 months. The Court has reviewed the violation report, and has carefully considered the policy statements of Chapter 7 of the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553(a)

. For the reasons stated at the hearing, the Court concludes that a sentence of 9–months imprisonment and 24–months supervised release best reflects the statutory purposes of sentencing and of supervised release.

FACTUAL BACKGROUND

First, the Court will outline Lee's past criminal history. Second, the Court will describe some of Lee's other personal characteristics. Last, the Court will describe the underlying offense that put Lee in front of the Court in the first instance. The Court finds all facts by a preponderance of the evidence, as 18 U.S.C. § 3583(e)(3)

requires.

1. Lee's Criminal History Up to the Underlying Crime of Conviction in This Case.

Lee was convicted on four counts—threatening, disorderly conduct, criminal damage, and battery—in Navajo Tribal District Court in June 2008, which received no criminal history points in the calculation of Lee's criminal history. See Presentence Investigation Report ¶ 53, at 11 (disclosed August 11, 2010)(“PSR”). Regarding Lee's 2008 tribal conviction, the PSR provides the following information:

According to the offense report completed by the Crownpoint, New Mexico Police Department, an officer responded to a call of an intoxicated individual, later identified as [Lee], who was acting out of control. Upon arriving at the location, officers observed several family members holding down the defendant. The officer heard the defendant yelling obscenities including, “I'm going to kill all of you!” The officer attempted to handcuff the defendant while he was being held down; however, he kept resisting and struggling. Eventually, the officer was able to restrain [Lee] and placed him in the patrol unit. At this time the defendant began hitting the window with his head. The defendant was warned to stop banging his head on the window, but he continued. Therefore, the officer pepper sprayed him for his safety. The defendant's mother explained the defendant became very angry after she refused to allow him to drive her vehicle. [Lee] was physically restrained by family members after he became physically aggressive toward his mother. Even after being restrained he managed to hit his mother's lip area. [Lee] was booked into the adult detention center in Crownpoint, New Mexico.

PSR ¶ 53, at 11. The Tribal Court sentenced Lee to one year of probation, which was set to expire on February 23, 2010. See PSR ¶ 53, at 11.

In addition, Lee was also arrested or had interactions with law enforcement five other times before being arrested for the underlying crime of conviction in this case. See PSR ¶¶ 55–60, at 11–13. These contacts with law enforcement involved: public intoxication, criminal trespass, criminal nuisance, disturbance, and reckless burning. See PSR ¶¶ 55–60, at 11–13. In December 2006, Lee was suspected of being intoxicated at Wingate High School in Fort Wingate, New Mexico. See PSR ¶ 55, at 11–12. After arriving on the scene, an officer from the Crownpoint New Mexico Police Department made contact with Lee. See PSR ¶ 55, at 12. “The officer conducted a field sobriety test, which defendant completed without any problems. The defendant was instructed to return to his dorm room.” PSR ¶ 55, at 12. Again, in December, 2006, Lee was arrested for criminal trespass and criminal nuisance, after being involved with two other male juveniles on school grounds when they were supposed to be off school premises. See PSR ¶ 56, at 12. Regarding this incident, the PSR states:

According to the offense report received from the Crownpoint, New Mexico Police Department, [Lee] and two other male juveniles were on school grounds when they were supposed to be off school [sic]. While on the school grounds a staff member noticed a strong odor of marijuana emitting from their person. As the staff member attempted to search the three individuals they ran off. The staff member managed to detain one of them and shortly after, [Lee] along with the other individual returned. The officer attempted to question the individuals, but they were uncooperative. They were arrested and transported to the youth detention center in Tohatchi, New Mexico.

PSR ¶ 56, at 12.

Later, in April, 2007, officers were requested at Tohatchi High School in Tohatchi, New Mexico, after Lee was sent to the principal's office following an incident involving a teacher. See PSR ¶ 57, at 12. Regarding the April 2007 incident, the PSR states:

According to the offense report received from the Crownpoint, New Mexico Police Department, officers were requested at the Tohatchi High School in Tohatchi, New Mexico. Upon arriving, officers spoke to the principal who reported a teacher encountered [Lee] in the courtyard and asked him to get to class. [Lee] responded with obscenities including, “You better watch out, I know where you live.” [Lee] refused to go to class; therefore, he was escorted to the principal's office. While waiting to speak to the principal he hit the wall with his fist. [Lee] was not arrested; however, his parents were contacted.

PSR ¶ 57, at 12. One month later, in May, 2007, Lee was allegedly involved in a more serious incident. See PSR ¶ 58, at 12–13. The PSR explains:

According to the offense report received from the Crownpoint, New Mexico Police Department, an officer was dispatched to a residence in reference to a fight. While en route the officer was informed the individuals involved in the fight had fled in a green sedan. The officer arrived at the residence and spoke to a female who reported she was battered by three individuals. The victim stated she was sitting in her living room, after drinking all day, when the defendant and two females, Margie and Marland, entered the house and proceeded to batter her. [Lee] and Marland took hold of her arms while Margie kicked her in the face three times. The victim explained she has been dating Margie's ex-boyfriend; which is why she was targeted.

PSR ¶ 58, at 12–13. The PSR also states that in November, 2008, Lee had contact with law enforcement regarding a “reckless burning” in Crownpoint. See PSR ¶ 60, at 13. The PSR, states, however, that “[t]he offense report regarding this offense could not be located. No further information is available.” PSR ¶ 60, at 13. Finally, the Tribal Court cited Lee for the underlying offense, discussed in subsection (3) of this opinion's factual background, on three counts: (i) “Reckless Driving,” (ii) “No Valid State License Required,” and (iii) “Left of Center Violation.” PSR ¶ 59, at 13. No complaint, however, was ultimately filed. See PSR ¶ 59, at 13.

2. Lee's Personal Characteristics.

Lee was born on November 25, 1989 in Gallup, New Mexico. See PSR ¶ 62, at 13. His parents divorced when he was fourteen, and neither one of them have remarried. See PSR ¶ 62, at 13. Lee has stated that “his father was an abusive alcoholic; however, shortly after the divorce his father stopped drinking.” PSR ¶ 62, at 13. His mother has remained supportive of him throughout his legal proceedings. See PSR ¶ 62, at 13. Lee also has three siblings, and he maintains a good relationship with them. See PSR ¶ 63, at 13–14. He is a lifelong resident and member of the Tohatchi Navajo community, and he resided in Tohatchi before moving with his family to YaTaHey, New Mexico in 2009. See PSR ¶ 64, at 14.

Lee is single, has no children, and has no history of mental or emotional problems. See PSR ¶¶ 65–67, at 14. He is also in good physical health, other than having his gall bladder removed in November, 2009. See PSR ¶ 66, at 14. Lee has, however, a long history of alcohol and substance abuse. See PSR ¶¶ 68–69, at 14. When Lee “was approximately 15 years old, he began consuming alcohol.” PSR ¶ 68, at 14. During the PSR interview with Lee for the underlying offense, he reported that “he consumed alcohol on a bi-weekly basis, about a 12–pack at a time to the point of intoxication,” and began smoking marijuana at the age of seventeen. PSR ¶¶ 68–69, at 14. Lee indicated, at that time, that he had last used alcohol and marijuana on the day of the underlying offense. See PSR ¶¶ 68–69, at 14. Lee also “denied any experimentation with any other drugs and stated he prefers to use marijuana.” PSR ¶ 69, at 14.

Lee remained sober and drug free from February 11, 2010, when he was placed on pretrial supervision, until the week before the Court sentenced him on October 13, 2010. See PSR ¶ 69, at 14. Lee's pretrial officer referred him to outpatient substance abuse counseling, and Lee attended weekly groups at The Evolution Group in Albuquerque, New Mexico. See PSR ¶ 69, at 14–15. Further, after being referred by the Tribal Court, Lee successfully completed a 365–day outpatient treatment program at the Navajo Nation Department of Behavioral Health Services in Tohatchi in January 2010. See PSR ¶ 70, at 15. Before that time, Lee had never received treatment for his alcohol and substance abuse problems. See PSR ¶ 68, at 14. Despite Lee's progress in ...