United States v. Aguilar

1

UNITED STATES OF AMERICA, Plaintiff, v. KYLE AGUILAR, Defendant.

No. CR 21-0670 JB

United States District Court, D. New Mexico

August 30, 2024

Counsel:

Alexander M.M. Uballez

United States Attorney

Nicholas James Marshall

Mia Ulibarri-Rubin

Assistant United States Attorneys

United States Attorney's Office

Albuquerque, New Mexico

Attorneys for the Plaintiff

Nicholas Thomas Hart

Carter B. Harrison, IV

Harrison & Hart, LLC

Albuquerque, New Mexico

Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER ^[1]

THIS MATTER comes before the Court on: (i) Defendant Kyle Aguilar's Motion to Merge Counts 2 and 3 into a Single Count of Conviction, filed February 16, 2024 (Doc. 211)(“Merger Motion”); (ii) the United States' Objection to the Presentence Report and Motion for Enhancement of Defendant's Sentence for Obstructing or Impeding the Administration of Justice Pursuant to USSG § 3C1.1, filed April 12, 2024 (Doc. 225)(“Obstruction Motion”); and (iii) the United States' Second Sentencing Memorandum, filed May 8, 2024 (Doc. 235)(“United States Sentencing Memo.”). The Court held a hearing on the Merger Motion on March 20, 2024, see Clerk's Minutes, filed March 20, 2024 (Doc. 222), and a sentencing hearing on May 9, 2024, see Sentencing Minute Sheet, filed May 9, 2024 (Doc. 240). The primary issues are: (i) whether the Court should grant the United States' Obstruction Motion and apply the 2-level offense level enhancement under § 3C1.1 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), because Aguilar obstructed justice by perjuring himself during his testimony at trial, which contradicted earlier sworn statements he made at his guilty plea hearing; (ii) whether the Court should grant Defendant Kyle Aguilar's Merger Motion and merge the Superseding Indictment's Counts 2 and 3 into a single count of conviction, because to sentence Aguilar separately under each count would violate of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States of America; and (iii) whether the Court should sentence Aguilar to the 48-month sentence that the Guidelines suggest and the United States argues, or to a time-served sentence, as Aguilar proposes. The Court concludes that: (i) it will grant the Obstruction Motion and apply the § 3C1.1 enhancement, because the Court concludes that Aguilar obstructed justice, because the Court determines by a preponderance of the evidence that Aguilar perjured himself during his trial testimony; (ii) it will deny the Merger Motion, because Aguilar's two counts of conviction do not make for multiplicitous punishment; and (iii) after considering carefully the 18 U.S.C. § 3553(a) factors, as well as the relevant Guidelines sections, the Court sentences Aguilar to the Federal Bureau of Prisons' custody for a term of 48 months, followed by five years of supervised release, because the Court concludes that a Guidelines sentence is reasonable in this case, and is sufficient, without being greater than necessary, to comply with the purposes of punishment set forth in the Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 19872001 (1984), codified as amended at 18 U.S.C. §§ 3551-3586.

FINDINGS OF FACT

The Court finds the following facts for the purposes of the advisory sentencing factors and for the purpose of applying the § 3C1.1 enhancement for obstruction of justice. See United States v. Cervantes-Chavez, 59 F.Supp.3d 1295, 1315 (D.N.M. 2014)(Browning, J.). The Court finds these facts by a preponderance of the evidence. See United States v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005)(McConnell, J.)(“[W]hen a district court makes a determination of sentencing facts by a preponderance test under the now-advisory Guidelines, it is not bound by jury determinations reached through application of the more onerous reasonable doubt standard.”).

1. Aguilar engaged in sexual contact with his niece, Jane Doe, on at least^[2] two separate occasions: once during the Dallas Cowboys game, during which Aguilar touched Doe's breasts and genitalia over her clothing, see Draft Transcript of Jury Trial, Day 2, January 22, 2024 at 51:13-54:16 (held January 22, 2024)(Doe, Marshall)(“Jan. 22 Tr.”),^[3] and once on a separate day when her friends were over, see Jan. 22 Tr. at 54:21-70:11 (Court, Doe, Harrison, Law Clerk, Marshall).

2. As a result of the sexual abuse by Aguilar, Doe has experienced significant trauma and psychological hardship. See Jan. 22 Tr. at 77:12-20 (Doe); id. at 82:1-83:9 (Doe); Fourth Presentence Investigation Report ¶¶ 18-22, at 6-7, filed May 6, 2024 (Doc. 233)(“PSR”).

3. Aguilar was untruthful at trial with respect to material matters in this case, falsehoods which were designed to affect the outcome of the case substantially.

4. Aguilar willfully gave false testimony about his contacts with Doe; namely, that he had never touched her sexually, and, specifically, had not touched her over or under her clothes on her breasts or her genitalia. See Draft Transcript of Jury Trial, Day 3, January 23, 2024, at 106:1921 (held January 23, 2024)(Aguilar, Harrison)(“Jan. 23 Tr.”), id. at 109:22-24 (Harrison, Aguilar); id. at 115:11-20 (Harrison, Aguilar).

5. These falsehoods were designed to affect the outcome of the case substantially, i.e., designed to mislead the jury to return a not guilty verdict.

6. Aguilar's false statement at trial was willful and deliberate, and not a result of accident, confusion, mistake, or poor recall.

FACTUAL BACKGROUND

As originally indicted, a Grand Jury charged Aguilar with two counts of child sex offenses. See Indictment, filed May 12, 2021 (Doc. 2)(“Indictment”). The Indictment charges Aguilar:

Count 1

From on or about October 2, 2016, and continuing to on or about February 13, 2017, in Indian Country, in Sandoval County, in the District of New Mexico, the defendant, KYLE AGUILAR, an Indian, unlawfully and knowingly engaged in and caused sexual contact with Jane Doe, a child who had attained the age of twelve (12) years but had not attained the age of sixteen (16) years, and the sexual contact consisted of the defendant intentionally touching Jane Doe's genitalia directly and through clothing, with the intent to abuse, humiliate harass, degrade, arouse and gratify the sexual desire of any person.

In violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246(3).

Count 2

From on or about October 2, 2016, and continuing to on or about February 13, 2017, in Indian Country, in Sandoval County, in the District of New Mexico, the defendant, KYLE AGUILAR, an Indian, in an act distinct and separate from the act in count one, unlawfully and knowingly engaged in and caused sexual contact with Jane Doe, a child who had attained the age of twelve (12) years but had not attained the age of sixteen (16) years, and the sexual contact consisted of the defendant intentionally touching Jane Doe's genitalia directly and through clothing, with the intent to abuse, humiliate, harass, degrade, arouse and gratify the sexual desire of any person.

In violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246(3).

Indictment at 1-2. Aguilar initially pleaded guilty to the Indictment's charges on November 16, 2022, in a hearing before the Honorable Laura Fashing, United States Magistrate Judge for the United States District Court for the District of New Mexico. See Plea Minute Sheet, filed November 16, 2022 (Doc. 64); Plea Hearing Before the Honorable Laura Fashing, United States Magistrate Judge, filed April 12, 2024 (Doc. 225-1)(“Plea Tr.”). At the hearing, Magistrate Judge Fashing, Aguilar, and Assistant United States Attorney Nicholas Marshall, engaged in the following colloquy, during which Aguilar pled guilty to Count 2 of the Indictment, admitting to touching inappropriately a minor's genitals over the minor's clothing:

Fashing, M.J.: I do need to ask you, Mr. Aguilar, if you could tell me in your own words just briefly what it is that you did that makes you guilty of this offense.

Aguilar: I was intoxicated and I made a bad judgment.

Fashing, M.J: Okay. Why don't you tell me -- let's start by saying when this was and where you were.

Aguilar: This was somewhere around October 12 2016 to February 2017, San

Felipe Pueblo.

Fashing, M.J: Okay. And you said you are intoxicated. And what did you do while you were intoxicated?

Aguilar: I may -- yes, I may have -- I touched a minor inappropriately.

Fashing, M.J: Where specifically did you touch this minor?

Aguilar: Over her clothes over her genitals.

Fashing, M.J: Okay. How old was the victim at that time?

Aguilar: She was age of 12.

Fashing, M.J: Okay. Was she between certain ages?

Aguilar: Between the ages of 12 and 16.

Fashing, M.J: Okay. And -- but she had not yet reached the age of 16; is that correct?

Aguilar: Yes.

Fashing, M.J: Okay. And are you a member of San Felipe Pueblo?

Aguilar: I am, yes.

Fashing, M.J: Okay. Are you satisfied with that factual basis, Mr. Marshall?

Marshall: Yes, Your Honor.

Fashing, M.J: Okay. Mr. Aguilar, are you pleading guilty here today because you are, in fact, guilty of the charge against you?

Aguilar: Yes.

....

Fashing, M.J: All right. Mr. Aguilar, how do you plead to the felony charge of abusive sexual contact as alleged in Count Two of the indictment, guilty or not guilty?

Aguilar: Guilty.

Fashing, M.J: All right. Sir, I find that you are competent and capable of entering an informed plea, that you are aware of the nature of the charge against you and the consequences of your plea and that your plea is knowing and voluntary and supported by sufficient facts. I, therefore, accept your guilty plea and I now adjudge you guilty. I will defer acceptance of the plea agreement to Judge Browning.

Plea Tr. at 16:3-18:15 ...