United States v. Martinez
| Decision Date | 02 December 2021 |
| Docket Number | CR 19-3725 JB |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. JODY RUFINO MARTINEZ, Defendant. |
| Court | U.S. District Court — District of New Mexico |
UNITED STATES OF AMERICA Plaintiff,
v.
JODY RUFINO MARTINEZ, Defendant.
No. CR 19-3725 JB
United States District Court, D. New Mexico
December 2, 2021
Fred J. Federici Acting United States Attorney Maria Ysabel Armijo Randy M. Castellano Ryan Ellison Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff.
Carter B. Harrison, IV Nicholas Thomas Hart Harrison & Hart, LLC Albuquerque, New Mexico Attorneys for the Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant Jody Rufino Martinez's Objections to the Presentence Report and Sentencing Memorandum, filed July 11, 2021 (Doc. 300)(“Objections”). The primary issues are: (i) whether the Court can apply a 2-level sentencing enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G”) § 3A1.1(b)(1), because J. Martinez “knew or should have known that a victim of the offense, ” D.R., “was a vulnerable victim, ” where Mathew Martinez called a “green-light”[1] on D.R.; (ii) whether the Court can apply a 4-level enhancement pursuant to U.S.S.G. § 2A2.1(b)(1)(A) for the victim having suffered a permanent or life-threatening injury, because there is no evidence that the victim, D.S., has a permanent or life-threatening injury given only that the bullet is still in his leg; (iii) whether the Court can apply a 2-level enhancement pursuant to U.S.S.G. § 3C1.1 for J. Martinez' obstruction of justice during the investigation into D.S.'s shooting, because there is no evidence that J. Martinez concealed or destroyed evidence, and the fact that the alleged firearm and shell casing were not recovered is not sufficient for the enhancement's application; and (iv) whether the Court
can apply a 2-level enhancement pursuant to U.S.S.G. § 3B1.1(c) for J. Martinez being a leader, organizer, or manager in the shooting of D.S., because there is no evidence that more than one individual was involved in D.S.'s shooting or that J. Martinez exercised management responsibility within the SNM or over D.S.'s shooting. The Court concludes (i) D.R. was not a vulnerable victim, because he was not especially susceptible to criminal conduct or in special need of protection; (ii) D.S. suffered a permanent injury, because the bullet from J. Martinez shooting him remains in his body; (iii) J. Martinez' did not obstruct justice, because he did not tamper with witnesses; and (iv) J. Martinez organized a green light on D.S., which demonstrates that he exercised an organizational role in the conspiracy.
FINDINGS OF FACT
The Court's findings of fact are facts that the Court finds by a preponderance of the evidence. See United States v. Williams, No. CR. 17-2556 JB, 2020 WL 4016108, at *6 (D.N.M. July 16, 2020)(Browning, J.)(citing United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008)). Accord United States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008)(“The district court's determination of drug quantity is a factual finding that must be supported by a preponderance of the evidence and is reviewed for clear error.”). The court may rely upon reliable hearsay, so long as the evidence meets the preponderance-of-the-evidence standard.[2] See United States v. Banda,
168 Fed.Appx. 284, 289 (10th Cir. 2006)(unpublished)[3](stating that “there is no prohibition on
considering hearsay testimony at sentencing, provided it bears indicia of reliability”). The evidence and information upon which the Court relies must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).
The Court recounts the General Background on the SNM Gang from its Memorandum Opinion and Order at 3-5, 2021 WL 2915110, at *2-4, filed July 12, 2021 (Doc. 303)(“MOO”). The Court incorporates that recitation here. Because the Court requires the United States Probation Office (“USPO”) to base its factual statements in the Presentence Investigation Report on trial evidence rather than on pretrial discovery, the Court largely takes its facts from the Presentence Investigation Report, filed June 15, 2021 (Doc. 294)(“PSR”). The PSR states, “On March 16, 2021, the defendant was found guilty by jury trial and the following offense conduct was provided by the U.S. Attorney's Office. In addition, the trial transcripts were reviewed, and information was obtained from the FBI case agent.” PSR ¶ 14, at 8. To the extent J. Martinez disputes the PSR's factual findings, the Court resolves these disputes from the jury trial held from March 1, 2021, to March 16, 2021. See Clerk's Minutes at 1, filed March 1, 2021 (Doc. 265)(“Trial Minutes”).
1. General Background on the SNM Gang.
1. The 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.” Superseding Indictment ¶ 1, at 1, filed December 11, 2019 (Doc. 33)(“First Superseding Indictment”).
2. The SNM constitutes an enterprise “as defined in Title 18, United States Code, Sections 1959(b)(2) and 1961(4), that is, a group of individuals associated in fact that engaged in, and the activities of which affected interstate and foreign commerce.” First Superseding Indictment ¶ 2, at 2.
3. The enterprise is “an ongoing organization whose members/prospects/associates functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise.” First Superseding Indictment ¶ 2, at 1-2.
4. The SNM is a 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. First Superseding Indictment ¶ 3, at 2.
5. During the riot, thirty-three inmates were killed, and over 200 inmates were injured. See First Superseding Indictment ¶ 3, at 2.
6. After the PNM riot, the SNM expanded throughout the State's prison system and has had as many as 500 members at one time. See First Superseding Indictment ¶ 4, at 2.
7. The SNM now has approximately 250 members, and “a ‘panel' or ‘mesa' (Spanish for table) of leaders who issue orders to subordinate gang members.” First Superseding Indictment ¶ 4, at 2.
8. The SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See First Superseding Indictment ¶¶ 3, 5, at 2-3.
9. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, primarily the control of, and the profit from, narcotics trafficking. See First Superseding Indictment ¶ 5, at 3.
10. Members who fail “to show continued loyalty to the gang” may be assaulted or murdered. First Superseding Indictment ¶ 5, at 2-3.
11. The SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See First Superseding Indictment ¶ 6, at 3.
12. If another gang does not abide by the SNM's demands, the SNM will assault or kill one of the other gang's members to show SNM's power. See First Superseding Indictment ¶ 6, at 3.
13. The SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See First Superseding Indictment ¶ 7, at 3.
14. The 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.” First Superseding Indictment ¶ 7, at 4.
15. “Similarly, a member of the SNM Gang is expected to confront and attack any suspected law enforcement informants, cooperating witness[es], [gay people], or sex offenders.” First Superseding Indictment ¶ 8, at 4.
16. To achieve its purpose of maintaining power, the SNM uses intimidation, violence, threats of violence, assault, and murder. See First Superseding Indictment ¶¶ 6-8, at 3-4.
17. The SNM, as an enterprise, generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See First Superseding Indictment ¶ 7, at 4.
18. The SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department officials inspired the Federal Bureau of Investigation's present investigation. See United States Notice of Related Cases, filed October 16, 2019 (Doc. 15).
2. Particular Facts with Respect to J. Martinez.
19. J. Martinez joined the SNM in June, 1998, while incarcerated in the New Mexico Corrections Department. See PSR ¶ 26, at 10.
20. In December, 1998, J. Martinez admitted his SNM membership to New Mexico Corrections Department officials, stated that he is a Soldier with the SNM, and possesses “an SNM tattoo of a Zia symbol with SNM in the middle.” PSR ¶ 27-28, at 10.
21. On October 31, 1999, J. Martinez battered a corrections officer. See PSR ¶ 29, at 10.
22. In 2008, D.R. had an outstanding warrant for a probation violation and planned to surrender himself to the New Mexico Corrections Department to smuggle heroin into the jail and prison for SNM members. See PSR ¶ 15, at 8.
23. D.R. did not turn himself in, and instead consumed or sold the heroin. See PSR ¶ 15, at 8.
24. Because D.R. stole the heroin, J. Martinez and Matthew Martinez placed a “green light” on D.R. PSR ¶ 15, at 8.
25. On December 4, 2008, Rudy Salazar a.k.a. “Crip”, a fellow SNM member,...
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