United States v. Madrid

• Decision Date: 11 March 2019
• Docket Number: No. CR 18-0836 JB,CR 18-0836 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. YVONNE MADRID, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. YVONNE MADRID, Defendant.

No. CR 18-0836 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 11, 2019

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Objection to the Presentece [sic] Report and Sentencing Memorandum, filed September 11, 2018 (Doc. 62)("Objections"). The Court held a sentencing hearing on September 20, 2018. The primary issues are: (i) whether the Court should consider, as evidence relevant to determining the weight of the Suboxone¹ smuggled into prison, testimony from a Federal Bureau of Investigation ("FBI") agent regarding the quantity of controlled substances that Defendant Yvonne Madrid allegedly attempted to supplyin units and how much money would be made from said quantity should be considered; (ii) whether the Court should consider, as evidence that Madrid should receive a mitigating role adjustment pursuant to the United States Sentencing Guidelines Manual § 3B1.2(b) (U.S. Sentencing Comm'n 2016)("U.S.S.G."), letters from co-Defendant Christopher Chavez, Madrid's ex-husband and the intended recipient of the Suboxone that she attempted to supply pressuring Madrid to send him Suboxone in jail, instructing her on how to do it, and threatening her and her boyfriend at the time;² (iii) whether, in the interests of justice, the Court should vary Madrid's sentence downward to eliminate the disparity between her base offense level of 26, and her co-Defendant Chavez' base offense level of 13, when the Presentence Investigation Report, filed August 22, 2018 (Doc. 57)("PSR"), acknowledges that Madrid and Chavez were charged with the same conspiracy to distribute, see PSR ¶ 1, at 3, and that Chavez instructed Madrid on how to commit the offense, see PSR ¶¶ 6-9, at 3-4; (iv) whether, considering United States v. Cani, 545 F. Supp. 2d 1235(M.D. Fl. 2008)(Conway, J.), the Court should compare the advisory Guidelines sentence the PSR recommends -- 70 to 87 month -- with the sentencing range to which Madrid would be subject if the Court used the least serious count with which she was charged to calculate the range -- instead of, as the Guidelines direct, the most serious count -- and that the Court should vary Madrid's base offense level to 6, using the least serious count to calculate Madrid's Guidelines range, because using the most serious count to calculate Madrid's applicable Guidelines range results in U.S.S.G. § 2P1.2(c)(1)'s application, which unjustly elevates Madrid's base offense level to 26, disproportionate to the severity of her crime; and (v) whether, considering the 18 U.S.C. § 3553(a) factors, the Court should assign Madrid a below-Guidelines sentence of 6 to 12 months imprisonment followed by a term of supervised release. The Court concludes that: (i) Suboxone quantity may not be calculated by dosage, and that the FBI agent's dosage determination is arbitrary, so the Court will sustain Madrid's Objection and will not consider as evidence relevant to sentencing the FBI agent's testimony as to the units of Suboxone or their value in prison, although the Court notes that the change does not affect Madrid's base offense level, which is 26; (ii) the Court overrules Madrid's Objection requesting a minor role adjustment, concluding that Madrid played an essential role when she purchased or secured the Suboxone and provided it to Chavez' attorney, Orlando Mondragon, for delivery, and where telephone calls between her and Chavez suggest this crime is not her first time securing Suboxone for an inmate; (iii) considering the 18 U.S.C. § 3553(a) factors, including the need to avoid unwarranted sentencing disparities between similar defendants found guilty of similar conduct, and a need to promote respect for thelaw, provide just punishment, afford just deterrence, and reflect the offense's seriousness, the Court denies Madrid's request to vary her sentence downward to eliminate the disparity between her sentence and Chavez' sentence; (iv) the Court declines to follow United States v. Cani, and assigns Madrid a base offense level of 26, pursuant to U.S.S.G. § 2P.12(c)(1); and (v) considering the 18 U.S.C. § 3553(a) factors, the Court concludes Madrid is entitled to some variance, and varies downward the equivalent of 1 offense level, arriving at a working range of 63 to 78 months, below the advisory Guidelines range, and assigns Madrid a sentence of 63 months of imprisonment, followed by three years of supervised release, at the bottom of the working range. The Court therefore sustains the Objections in part and overrules them in part.

FACTUAL BACKGROUND

At the Plea Hearing, held before the Honorable Jerry H. Ritter, United States Magistrate Judge for the District of New Mexico, Madrid pled guilty to the Indictment. See Indictment at 1, filed March 21, 2017 (Doc. 36). See also Plea Minute Sheet at 1, filed June 1, 2018 (Doc. 52). The Indictment charges that Madrid

unlawfully, knowingly and intentionally combined, conspired, confederated, agreed, and acted interdependently with each other and with other persons whose names are known and unknown to the Grand Jury to commit an offense defined in 21 U.S.C. §§ 841(a)(1) and (b)(1)(E), specifically, distribution of Suboxone. In violation of 21 U.SC. § 846.

Indictment at 1. The Indictment also charges that Madrid, "contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(E), provided and attempted to provide a prohibited object, specifically, suboxone, to CHRISTOPHER T. CHAVEZ, a.k.a. 'Critter,' an inmate of the Hidalgo County DetentionCenter . . . [i]n violation of 18 U.S.C. § 1791(a)(1)." Indictment at 2 (emphasis in Indictment).

Chavez was originally charged in United States v. DeLeon, CR 15-4268 JB, a case dealing with crimes that a prison gang, the Syndicato de Nuevo Mexico ("SNM"), allegedly committed through its members. The factual background of that case, as incorporated into several of the Court's Memorandum Opinions and Orders, is provided below, including relevant footnotes:

The Court takes its background facts from the Second Superseding Indictment, No. 15-4268, filed March 9, 2017 (Doc. 947)("Indictment"). The background facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, 2017 WL 6496441, No. 15-4268, filed December 18, 2017 (Doc. 1585). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background largely reflects the United States' version of events and that the Defendants are all presumed innocent.

This case deals with crimes that the Syndicato³ de Nuevo Mexico ("SNM") allegedly committed through its members. See Indictment at 2. SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, "including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking." Indictment at 2. SNM constitutes an enterprise "as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce." Indictment at 2-3.

SNM is a violent prison gang formed in the early 1980s at the Penitentiary of New Mexico ("PNM") after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. See Superseding Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See Superseding Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members at one time. See Indictment at 3. SNM has approximately 250 members now and is led by "a 'panel' or 'mesa' (Spanish for table) of leaders who issue[] orders to subordinate gang members." Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment at 3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals; its main goal is controlling and profiting from narcotics trafficking. See Indictment at 3-4. Members who fail "to show continued loyalty to the gang [are] disciplined in various ways, [] includ[ing] murder and assaults." Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment at 4. If another gang does not abide by SNM's demands, SNM may assault or kill one of the other gang's members to show its power. See Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. SeeIndictment at 4. SNM further engages in violence "to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others." Indictment at 4. To show its strength and influence, SNM expects its members to confront and attack any suspected law enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Indictment at 5. To preserve its power, SNM uses intimidation, threats of violence, assaults, and murder. See Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment at 8. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials, including Wayne Santistevan and Gregg Marcantel, inspired the Federal Bureau of Investigation's present investigation. SeeUnited States v. Garcia, No. CR 15-4275, Memorandum Opinion and Order at 2, 221 F. Supp. 3d 1275, 1277, filed November 16, 2016 (Doc. 133); Transcript of Motion

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