United States v. Yazzie
| Decision Date | 17 October 2011 |
| Docket Number | No. CR 10-2460 JB,CR 10-2460 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DERRICK JONES YAZZIE, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the before the Court on the Defendants' Objections to the Presentence Report and, in the Alternative a Request for a Downward Departure and Variance, filed April 26, 2011 (Doc. 32)("Objections to PSR"). The Court held evidentiary sentencing hearings on May 27, 2011 and July 28, 2011. The primary issues are whether Defendant Derrick Jones Yazzie: (i) destroyed Herman Tom's residence; (ii) attempted to destroy Herman Tom's residence; or (iii) knowingly created a substantial risk of death or serious bodily injury to another person. Because the Court finds that Plaintiff United States of America has not, by a preponderance of the evidence, made any of these three showings, the Court will sustain D. Yazzie's objections in part and will find that his base offense level should be 20 pursuant to U.S.S.G. § 2K1.4(a).1
Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure states that the Court "must -- for any disputed portion of the presentence report or other controverted matter -- rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, orbecause the court will not consider the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 32(i)(3)(B). In making these findings, the rules of evidence do not bind the Court. See Fed. R. Evid. 1101(d)(3); United States v. Graham, 413 F.3d 1211, 1221 n.10 (10th Cir. 2005)("In any event, the Federal Rules of Evidence are not applicable to sentencing proceedings.")(citing Fed. R. Evid. 1101(d)(3)). While D. Yazzie does not dispute some of the allegations made in the offense conduct section of the Presentence Investigation Report (dated January 27, 2011)("PSR"), as reflected in his multiple statements concerning the events of the night at issue, he does believe that the relevant facts are in dispute concerning his Objections to PSR. The Court makes the following factual findings:
1. Concrete that is roughly an inch thick coats Tom's residence. See Transcript of Hearing at 65:6-19 (taken May 27, 2011)(Long, West)("May 27, 2011 Tr."); Transcript of Hearing at 7:7-25 (taken July 28, 2011)(Butcher, P. Yazzie)("July 28, 2011 Tr.").2
2. D. Yazzie has a history of alcoholism. See Objections to PSR ¶ 17, at 8 (admitting this fact).
3. Tom is D. Yazzie's uncle. See July 28, 2011 Tr. at 23:9-12 (Butcher, D. Yazzie).
4. Tom and D. Yazzie had a good relationship before the incident involving the fire. See July 28, 2011 Tr. at 23:13-15 (Butcher, D. Yazzie).
5. On the night of August 11, 2010, D. Yazzie was drinking alcohol with Tom and his other uncle, Irvin Gould. See July 28, 2011 Tr. at 23:19-24:9 (D. Yazzie).
6. D. Yazzie drank to a significant level of intoxication on the night of August 11, 2010.See July 28, 2011 Tr. at 25:2-4, 28:1-2 (D. Yazzie).
7. After these men had been drinking, D. Yazzie got into a physical altercation with Tom and Gould. See May 27, 2011 Tr. at 21:16-22:3; July 28, 2011 Tr. at 25:5-18 (D. Yazzie).3
8. D. Yazzie's nose bled to a significant degree after the altercation. See July 28, 2011 Tr. at 26:5-13 (D. Yazzie, Butcher).4
9. After the altercation, Tom allowed D. Yazzie to take some alcohol with him. See July 28, 2011 Tr. at 27:7-13 (D. Yazzie, Butcher).
10. D. Yazzie was angry after the altercation. See July 28, 2011 Tr. at 27:11-13 (D. Yazzie).
11. D. Yazzie returned to Tom's residence later on in the night after the altercation. See July 28, 2011 Tr. at 28:12-15 (D. Yazzie).
12. D. Yazzie brought with him a five-gallon plastic gas can with him to Tom's residence. See July 28, 2011 Tr. at 28:2-4 (D. Yazzie).
13. The gas can had about three gallons of gasoline in it. See July 28, 2011 Tr. at 28:4-5(D. Yazzie).5
14. D. Yazzie did not bring a firearm with him when he returned to Tom's residence. See May 27, 2011 Tr. at 11:12-16 (Long, West).
15. D. Yazzie did not believe that anyone was in Tom's residence at the time he started the fire. See July 28, 2011 Tr. at 29:24-30:15 (Butcher, Yazzie).6
16. D. Yazzie poured some gasoline on the concrete slab in front of Tom's front door to his residence and then ignited the gasoline. See Objections to PSR } 2, at 2 (admitting this fact); July 28, 2011 Tr. at 29:1-5 (D. Yazzie).
17. D. Yazzie attempted three or four times to light a match to start the fire. See July 28, 2011 Tr. at 41:21-25 (Long, D. Yazzie).
18. D. Yazzie poured a small amount of gasoline on the windowsill of Tom's residence and into Tom's residence. See July 28, 2011 Tr. at 29:11-18 (D. Yazzie).7
19. D. Yazzie poured a small amount of gasoline on one of the corners of the house,which D. Yazzie set on fire. See July 28, 2011 Tr. at 30:12-21 (D. Yazzie, Butcher); Defendant's Exhibit C, filed May 25, 2011 (Doc. 38-1)("Exhibit C").8
20. The area near the windowsill and the front door of Tom's residence also caught on fire. See May 27, 2011 Tr. at 20:1-18 (Long, West).
21. D. Yazzie poured the remainder of the gasoline in the gas can on Tom's yard, which D. Yazzie set on fire. See May 27, 2011 Tr. at 51:13-52:6 (Butcher, West); July 28, 2011 Tr. at 31:9-21 (Butcher, D. Yazzie).
22. D. Yazzie did not intend to burn Tom's residence down. See July 28, 2011 Tr. at 29:20-23, 31:24-32:5 (Butcher, D. Yazzie).9
23. D. Yazzie wanted to send a message to Tom by starting the fire. See July 28, 2011 Tr. at 28:5-6 (D. Yazzie).
24. D. Yazzie did not believe, based on the nature of the concrete exterior of Tom's residence and the amount of gasoline he had poured, that his actions would result in burning down the house. See July 28, 2011 Tr. at 30:24-31:4 (Butcher, D. Yazzie).10
25. D. Yazzie's conduct in starting the fire was reckless in that it created a substantial risk of death or serious bodily injury to another person. See Objections to PSR ¶ 9, at 4 (admitting this fact).
26. Tom's residence was not destroyed. See Defendant's Exhibit A, filed May 25, 2011 ("Exhibit A"); Tr. at 57:13-19 (Long)(United States admitting this fact).
27. The fire singed Tom's front door, but did not destroy it. See Defendant's Exhibit B, filed May 25, 2011 (Doc. 38-1)("Exhibit B").
28. D. Yazzie had conflicts with Tom's dogs in the past, including these dogs killing his sheep and some of his chickens. See July 28, 2011 Tr. at 32:19-33:18 (Butcher, D. Yazzie).
29. D. Yazzie believed, based on his past experiences with the dogs, that they were vicious. See July 28, 2011 Tr. at 32:19-33:18 (Butcher, D. Yazzie).
30. Tom had not always tied the dogs up securely in the past. See July 28, 2011 Tr. at33:8-18 (D. Yazzie).
31. D. Yazzie was afraid of the dogs on the night of August 11, 2010. See July 28, 2011 Tr. at 33:22:23 (D. Yazzie).11
32. D. Yazzie killed Tom's two dogs on August 11, 2010. See July 28, 2011 Tr. at 32:18-33:23 (Butcher, D. Yazzie).
In paragraph 36 of the PSR, the USPO imposed, pursuant to U.S.S.G. § 2K1.4(a)(1)(B), a base offense level of 24, because "the offense involved the destruction of a dwelling." PSR ¶ 36, at 8. The PSR states that D. Yazzie attempted to burn down Tom's residence. See PSR ¶¶ 6-7, at 2. After the four-level enhancement under U.S.S.G. § 2K1.4(a)(1)(B), the base offense level is 24. The PSR then reduced this offense level to 21 because of D. Yazzie's acceptance of responsibility for the offense of conviction pursuant to U.S.S.G. § 3E1.1. See PSR ¶¶ 42-43, at 8. The PSR calculated his advisory guideline range at 41 to 51 months imprisonment. See PSR ¶ 90, at 21.
D. Yazzie objects to this four-level enhancement in the PSR. D. Yazzie objects to the calculation of his base offense level of 24 pursuant to U.S.S.G § 2K1.4(a)(1)(B). See Objections to PSR at 1. He contends that the correct base offense level should be 20 pursuant to U.S.S.G. § 2K1.4(a)(2)(A), which would result in a total offense level of 17. See Objections to PSR at 1. D. Yazzie does not object to the calculation of the Criminal History Category. See Objections to PSR at 1. D. Yazzie argues in the alternative that, if the Court does not sustain D. Yazzie's objectionsto the PSR, he requests a 4-level downward departure and variance to a total offense level of 17, and the imposition of a sentence of 27 months. See Objections to PSR at 1.
Yazzie contends that the PSR's application of U.S.S.G. § 2K1.4(a)(1)(B) controverts the plain and ordinary meaning of the word "destruction." Objections to PSR ¶¶ 3-5, at 2. He argues that the applicable guideline does not state that the offense "involved a dwelling" but that it requires "destruction of a dwelling." Objections to PSR ¶¶ 6-7, at 3. He points out that the PSR does not state that he destroyed Tom's dwelling. See Objections to PSR ¶ 8, at 3-4. D. Yazzie concedes that his conduct on the night in question was reckless in that it created a substantial risk of death or serious bodily injury to another person. See Objections to PSR ¶ 9, at 4. He points out that a separate guideline, U.S.S.G. ¶ 2K1.4(a)(2)(A), contemplates situations involving reckless behavior in the arson context, and demonstrates the United States Sentencing Commission's intent to punish intentional or knowing conduct more heavily by assigning a higher base offense level. See Objections to PSR ¶¶ 6-10, at 3-5. D. Yazzie notes that, for the U.S.S.G. § 2K1.4(a)(1)(b) to apply to this case, he would need the specific intent to destroy the dwelling to satisfy the attempt provision in this guideline. See Objections to PSR ¶ 10, at 4-5. Alternatively, D. Yazzie argues that the Court should downwardly depart or grant a variance, lowering his total offense level to 17, based on the circumstances of the case and Yazzie's alcohol and emotional...
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