USA v. Madrid-gomez

• Decision Date: 14 May 2010
• Docket Number: No. CR 10-0572 JB.,CR 10-0572 JB.
• Citation: 724 F.Supp.2d 1141
• Parties: UNITED STATES of America, Plaintiff, v. Miguel MADRID-GOMEZ, Defendant.
• Court: U.S. District Court — District of New Mexico

724 F.Supp.2d 1141

UNITED STATES of America, Plaintiff,

v.Miguel MADRID-GOMEZ, Defendant.

No. CR 10-0572 JB.

United States District Court,D. New Mexico.

May 14, 2010.

Gregory J. Fouratt, United States Attorney, Lynn Wei-Yu Wang, Holland Kastrin, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.

Phillip P. Medrano, Federal Public Defenders Office, District of New Mexico, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Sentencing Memorandum, filed April 16, 2010 (Doc. 15). The Court held a sentencing hearing on April 30, 2010. The primary issues are: (i) whether the Court should sustain Defendant Miguel Madrid-Gomez' objection to the 2 criminal history points assessed against him in the Presentence Investigation Report (“PSR”) for the convictions in paragraphs 21 and 23 of the PSR because he was not represented by counsel in those cases; (ii) whether the Court should sustain Madrid-Gomez' objection to the 1 criminal history point assessed against him in paragraph 29 of the PSR because the United States Sentencing Commission recently voted to recommend deletion of the provision of the Guidelines providing for recency points; (iii) whether the Court should grant Madrid-Gomez a downward departure for over-representation of his criminal history; and (iv) whether the Court should grant Madrid-Gomez a variance. For the reasons stated on the record and for further reasons consistent with those stated, the Court will: (i) overrule Madrid-Garcia's objections to the PSR; (ii) deny his request for a downward departure; (iii) grant his request for a variance; (iv) and sentence Madrid-Gomez to 16 months in the custody of the Bureau of Prisons.

PROCEDURAL BACKGROUND

Madrid-Gomez pled guilty to unlawful entry and deportation under a non-standard fast-track plea agreement, in which the parties stipulated to a United States Sentencing Guidelines criminal-offense level of 9 pursuant to rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. In his sentencing memorandum, Madrid-Gomez objects to the points assessed against him for the convictions listed in paragraph 21 of the PSR, to which he pled nolo contendere to a DUI charge, and in paragraph 23 to the PSR, to which he pled guilty to a DUI-with-property-damage charge, because Madrid-Gomez did not have counsel when he made either plea, nor did he knowingly and voluntarily waive his constitutional right to counsel. See Sentencing Memo. at 1. He argues that the Supreme Court of the United States' holding in Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), extended the Sixth Amendment right to counsel set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), to misdemeanors where either any sentence of actual incarceration was imposed or where a probated or suspended sentence of imprisonment was imposed. See Sentencing Memo. at 4-5 (citing Alabama v. Shelton, 122 S.Ct. at 1772.). Madrid-Gomez argues that, absent a valid waiver of the right to counsel in a misdemeanor case, if the defendant is sentenced to prison, the conviction is unconstitutional. See Sentencing Memo. at 5 (citing United States v. Haymer, 995 F.2d 550, 552 (5th Cir.1993)). Madrid-Gomez contends that he was not advised of his right to counsel before he entered pleas in his two DUI convictions, and therefore those convictions are constitutionally invalid and should not be counted in his criminal history points. See PSR ¶¶ 21, 23, at 5, 9; Sentencing Memo. at 6. Madrid-Gomez also argues that the PSR's calculation of his criminal history points over-represents his actual criminal history and that he should receive a downward departure. See Sentencing Memo. at 7.

Madrid-Gomez also objects to the 2 points added to his criminal history for committing this federal offense within two years of his release from custody on a previous conviction, see PSR ¶ 29, at 9, because the United States Sentencing Commission recently voted to delete Section 4A1.1(e), upon which the allocation of recency points is based. At the hearing, Philip Medrano, Madrid-Gomez' attorney, alerted the Court that the PSR erroneously confused the point allocation in paragraphs 29 and 30. See Transcript of Hearing at 20:4-12 (taken April 30, 2010) (Medrano) (“Tr.”). ¹ Section 4A1.1(e) states that if 2 points are added under § 4A1.1(d), then 1 point is added pursuant to § 4A1.1(e). According to paragraph 29, Madrid-Gomez received 2 points for committing the instant offense within two years of his release from custody for a previous offense and paragraph 30 states that he received 1 point for committing the instant offense while under a criminal justice sentence of probation. The PSR should state that he received 1 point in paragraph 29, pursuant to § 4A1.1(e), and received 2 points in paragraph 30, pursuant to § 4A1.1(d). Thus, Madrid-Gomez' objection is that the 1 point pursuant to § 4A1.1(e) should not be counted, even though the sentencing memorandum objected to the 2 points reflected in the PSR. Madrid-Gomez argues that the recent vote to amend the guidelines and delete the recency point provision in § 4A1.1(e) is likely to be approved by Congress because it adds nothing to the predictive quality of the criminal history score. See Sentencing Memo. at 9-10. In addition to his objections and request for a downward departure, Madrid-Gomez further argues that the Court should vary from the guidelines, based on the factors set forth in 18 U.S.C. § 3553(a), especially the reduced need to deter him because, according to him, his criminal history points have been over-represented. See Sentencing Memo. at 7.

In response, the United States argues that Madrid-Gomez fails to demonstrate that the convictions in paragraphs 21 and 23 of the PSR are constitutionally infirm. See United States' Response to Defendant's Sentencing Memorandum Filed April 16, 2010 (Doc. 15) at 2, filed April 22, 2010 (Doc. 16). The United States concedes that “[a] defendant whose previous conviction is constitutionally invalid because he was denied the right to counsel may challenge the use of the conviction to enhance his sentence under the Guidelines.” United States' Response at 2 (citing United States v. Cruz-Alcala, 338 F.3d 1194, 1196-97 (10th Cir.2003)). The United States argues, however, that Madrid-Gomez bears the burden of proving, by a preponderance of the evidence, that his convictions were unconstitutional, because a presumption of regularity attaches to final judgments, even when a waiver of constitutional rights is at issue. See United States' Response at 2 (citing United States v. Quintana Ponce, 129 Fed.Appx. 473, 475 (10th Cir.2005)). Because Madrid-Gomez presented no evidence beyond his own statements in his sentencing memorandum, the United States argues the Court should consider the convictions in paragraphs 21 and 23 in assessing criminal history points. The United States also argues that nothing about the nature or circumstances of Madrid-Gomez' illegal re-entry offense warrants a variance. See United States' Response at 3. It contends that Madrid-Gomez' lengthy criminal history and his prior deportation-less than three months before he illegally re-entered the United States again-demonstrate that a variance is not warranted. See United States' Response at 4.

At the hearing, Mr. Medrano stated that he had been provided that morning with proof of attorney representation in the conviction listed in paragraph 23 of the PSR, and therefore withdrew his argument that the point assessed for that conviction should not be considered. See Tr. at 2:25-3:2 (Medrano). He argued, however, that Madrid-Gomez still represented to him that he did not have counsel for his conviction in paragraph 21 of the PSR, nor did he sign a waiver of consent. See id. at 3:3-8 (Medrano). Moreover, when Probation Officer Sharla Koch made contact with the Hendry County Circuit Court Clerk's Office in Labelle, Florida, she was advised that Madrid-Gomez was not represented by counsel. See Addendum to the Presentence Report. Assistant United States Attorney Holland Kastrin responded that, even if the point assessed for the conviction in paragraph 21 was not counted, Madrid-Gomez would still be within the point range for a category V criminal history. See Tr. at 5:25-6:5 (Kastrin). Nevertheless, Ms. Kastrin argued, the self-serving assertion that Madrid-Gomez was without counsel and did not waive counsel does not meet the burden to establish deprivation of counsel. See Tr. at 6:5-13 (Kastrin).

THE SIXTH AMENDMENT RIGHT TO COUNSEL

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court of the United States held that the Sixth Amendment's guarantee of the right to appointed counsel applies to state criminal prosecutions by incorporation through the Fourteenth Amendment. See 372 U.S. at 344-45, 83 S.Ct. 792. Clarifying the scope of the right to counsel, the Supreme Court later held that an indigent defendant must be appointed counsel in any criminal prosecution, “that actually leads to imprisonment even for a brief period,” regardless of its classification as a misdemeanor or a felony. Argersinger v. Hamlin, 407 U.S. 25, 33, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Seven years later, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Supreme Court established the outer limit of the right to counsel enunciated in Argersinger v. Hamlin. See Scott v. Illinois, 440 U.S. at 373, 99 S.Ct. 1158. The Supreme Court of Illinois had declined to extend Argersinger v. Hamlin to the defendant where he was “charged with a statutory offense for which imprisonment upon conviction is authorized but not actually imposed upon the defendant.” Scott v. Illinois, 440 U.S. at 369, 99 S.Ct. 1158. The Supreme Court affirmed, explaining: “Even were the matter res nova, we...