Zepeda v. United States
| Decision Date | 11 January 2022 |
| Docket Number | CV-17-01229-PHX-ROS,CR-08-01329-PHX-ROS-1 |
| Court | U.S. District Court — District of Arizona |
| Parties | Damien Miguel Zepeda, Petitioner, v. United States of America, Respondent. |
Pending before the Court are two motions filed by Petitioner Damien Miguel Zepeda seeking to vacate his convictions in the criminal matter, CR-08-01329-PHX-ROS-1, under 28 U.S.C § 2255[1] (Doc. 1; CR-08-01329-PHX-ROS-1 Doc. 236) [2] or reduce his sentence or compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (CR-08-01329-PHX-ROS-1 Doc 246).
On October 25, 2008, Zepeda and two of his younger brothers went to a residence on the Ak-Chin Indian Reservation to confront Zepeda's former girlfriend (hereinafter referred to by her initials, “SA”). (Doc. 55 at 1-2; CR-08-01329-PHX-ROS-1 Doc. 269 at 2). During the confrontation, Zepeda hit SA in the head with a blunt object several times and shot at two other persons present, one adult male (“DP”) and one minor female (“C”). (Doc. 55 at 2; CR-08-01329-PHX-ROS-1 Doc. 269 at 2-3). DP suffered several gunshot wounds while shielding C with his body. (Doc. 55 at 2; CR-08-01329-PHX-ROS-1 Doc. 269 at 2-3).
Magistrate Judge James F. Metcalf issued a Report and Recommendation (“R&R”) recommending that Zepeda's § 2255 motion be granted in part. (Doc. 55 at 38-39). The R&R recommends vacatur of the conviction and sentence on Count 3 of the indictment. (Doc. 55 at 39). The R&R also recommends that Zepeda's sentence on Counts 1, 2, 4, 5, 6, 7, 8, and 9 be vacated and that Zepeda should be resentenced on those counts. (Doc. 55 at 39). With the exceptions noted below, the R&R will be adopted. Zepeda's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1; CR-08-01329-PHX-ROS-1 Doc. 236) will therefore be granted in part.
Zepeda's Amended Motion for Compassionate Release/ Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(1)(A) (CR-08-01329-PHX-ROS-1 Doc. 246) contends that Zepeda is eligible for compassionate release for several reasons. The primary basis for relief is the disparity between Zepeda's sentence and defendants sentenced under the First Step Act, Pub. L. No. 115-391 (2018). The Court holds Zepeda is not entitled to compassionate release. The Court will deny Zepeda's motion for sentence reduction without prejudice. He may refile the motion which will be fully briefed and resolved at the resentencing.
On October 25, 2008, Damien Miguel Zepeda (“Zepeda”) and his brother Matthew were drinking beer at their mother's house in Maricopa, Arizona. See United States v. Zepeda, 792 F.3d 1103, 1107 (9th Cir. 2015) (en banc). Zepeda asked Matthew and their brother, Jeremy, if they would like to go to a party. Id. Both brothers agreed. Id. The Zepeda brothers then went to DP's house, which was located on the Ak-Chin Reservation. Id. Outside the house, the brothers drank beer and smoked marijuana. Id. Eventually, Zepeda told Jeremy to “grab something from under the front seat.” Id. Because Jeremy was not paying attention, Matthew reached under the seat and obtained a shotgun. Id. Zepeda told Matthew to fire the shotgun if he heard gunshots. Id.
Zepeda, wielding a pistol, went and knocked on the front door of the house. Id. Zepeda asked to see his former girlfriend, SA. Id. DP had been giving SA a tattoo when Zepeda arrived. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2). Zepeda asked SA to leave with him. Zepeda, 792 F.3d at 1107. SA refused and an argument ensued between Zepeda and SA. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2). At one point during the argument, Zepeda repeatedly hit SA on the head with a hard object.[3] Zepeda, 792 F.3d at 1107. SA fell to the ground and then ran toward DP's residence. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2).
Alerted by the commotion, C went outside to check on SA. Zepeda, 792 F.3d at 1107. C told police she witnessed Zepeda hit SA with a gun. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2). C tried to run away but she tripped and fell. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2). When C looked up, Zepeda was shooting at her. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2).
DP, who was urinating off the porch at the time, heard the gunshots and walked to the southeast corner of the house. Zepeda, 792 F.3d at 1107. He covered C with his body to “shield her” from the gunshots. Id. DP was shot while holding C. Id. C testified, “[t]he shooting kept going and going.” Id. She said, ” Id. at 1108. She was able to flee into the house. Id. DP told the police that he remembered being shot by multiple people. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2). Zepeda and his brothers fled after DP managed to disarm Zepeda. See Zepeda, 792 F.3d at 1108.
DP suffered several gunshot wounds. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). He suffered a wound to the left groin, resulting in vascular injuries and injuries to his colon. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). He suffered a through-and-through gunshot wound to his right wrist, which caused nerve and vein damage. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). And he suffered gunshot or shotgun pellet wounds to his upper chest and shoulders. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). DP was not discharged from the hospital until January 9, 2009, more than two months after the shooting. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3).
A nine-count indictment, filed on November 12, 2008, charged Zepeda, Matthew, and Jeremy with: one count of conspiracy to commit assault with a dangerous weapon and to commit assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153, 371, and 2; one count of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2; three counts of assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2; and four counts of using a firearm during a crime of violence, 18 U.S.C. §§ 924(c)(1)(A). (CR-08-01329-PHX-ROS-1 Doc. 269 at 3-4); Zepeda, 792 F.3d at 1108. The indictment was charged pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153, which authorizes federal jurisdiction over certain crimes committed by Indians on Indian reservations. Zepeda, 792 F.3d at 1106. Matthew pled guilty to assault resulting in serious bodily injury and to use of a firearm during a crime of violence. Id. at 1108. Matthew was released from prison on April 24, 2014. (CR-08-01329-PHX-ROS-1 Doc. 246 at 7). Jeremy pled guilty to misprision of a felony. Zepeda, 792 F.3d at 1108. He was released on November 19, 2009. (CR-08-01329-PHX-ROS-1 Doc. 246 at 7). Zepeda was convicted on all nine counts. Zepeda, 792 F.3d at 1108-09.
On March 22, 2010, the Court sentenced Zepeda to 1, 083 months' imprisonment. (Doc. 55 at 3). Zepeda received: 60 months on Count 1 (conspiracy to commit assault resulting in serious bodily injury); 63 months on Count 2 (assault resulting in serious bodily injury); 63 months per count for Counts 4, 6, and, 8 (assault with a dangerous weapon). (Doc. 55 at 3). These sentences run concurrently. (Doc. 55 at 3). Zepeda was further sentenced to 120 months on Count 3 (use of a firearm during a crime of violence), and 300 months per count for Counts 5, 7, 9 (use of a firearm during a crime of violence). (Doc. 55 at 3). The sentences on Counts 3, 5, 7, and 9 (“the § 924(c) convictions”) run consecutive to one another and consecutive to the concurrent sentences imposed on Counts 1, 2, 4, 6, and 8. (Doc. 55 at 3).
Zepeda appealed his conviction. See United States v. Zepeda, 738 F.3d 201 (9th Cir. 2013). A divided panel of the Ninth Circuit affirmed Zepeda's conviction for conspiracy but reversed his convictions on the other eight counts on the ground that the government introduced insufficient evidence to support the jury's finding that Zepeda is an Indian. Zepeda, 792 F.3d at 1109. The panel rejected all of Zepeda's other arguments challenging his convictions. Id. (citing Zepeda, 738 F.3d at 208; United States v. Zepeda, 506 Fed.Appx. 536, 538-39 (9th Cir. 2013)).
The Ninth Circuit, sitting en banc, affirmed the district court judgment. Id. at 1116. The en banc court held that the government adequately demonstrated Zepeda is an Indian within the meaning of the Indian Major Crimes Act, held his sentence was not unreasonable, and adopted the panel's reasons for rejecting all of Zepeda's other arguments. Id. at 1109 (citing Zepeda, 738 F.3d at 207-08; Zepeda, 506 Fed.Appx. at 538-39).
On April 25, 2017, Zepeda filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 asserting 11 grounds for relief. (Doc. 1). This Order discussing Zepeda's § 2255 motion will follow the organization of the R&R, which separates Zepeda's claims for relief as follows:
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