United States v. Baca

UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY RAY BACA, a.k.a. "Pup"; CHRISTOPHER GARCIA;MANUEL JACOB ARMIJO, a.k.a. "Big Jake";FREDERICO MUNOZ, a.k.a. "Playboy"; SERGIO LOYA RODRIGUEZ,a.k.a "Churro"; MANUEL BENITO, a.k.a. "Panther";VINCENT GARDUÑO, a.k.a. "Fatal"; MANDEL LON PARKER,a.k.a. "Chuco"; DANIEL ARCHULETA, a.k.a. "Smurf";DANIEL SANCHEZ, a.k.a. "Dan Dan"; ANTHONY CORDOVA,a.k.a. "Antone"; RICHARD GALLEGOS, a.k.a "Dopey";and ARTURO ARNULFO GARCIA, a.k.a. "Shotgun," Defendants.

No. CR 16-1613 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

September 8, 2020

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) Defendant Vincent Garduno's Emergency Motion for Compassionate Release, filed June 9, 2020 (Doc. 1250)("Motion"); and (ii) the Amended Emergency Motion for Compassionate Release, filed June 10, 2020 (Doc. 1251)("Amended Motion"). The Court held a hearing on June 15, 2020. See Clerk's Minutes at 1, filed June 15, 2020 (Doc. 1258). The primary issues are: (i) whether the exhaustion requirement in 18 U.S.C. § 3582 (c)(1)(A) is jurisdictional; (ii) whether the Court can excuse the exhaustion requirement; and (iii) whether the Court can grant Defendant Vincent Garduño compassionate release under 18 U.S.C. § 3582 (c)(1)(A), because Garduño's mother's passing, his sentence's end date, his health condition, and the COVID-19 cases in the Otero County Prison Facility ("Otero County") where he is housed are, in the aggregate, a compelling and extraordinary circumstance warranting compassionate release. The Court concludes that (i) it will not grant Garduño compassionate release under 18 U.S.C. § 3582 (c)(1)(A), because although Garduño fulfilled the statutory exhaustion requirement; and (ii) Garduño's circumstances may be upsetting, his circumstances do not, in the aggregate, comprise a compelling and extraordinary circumstance warranting compassionate release.

FACTUAL BACKGROUND

The Court recounts the factual background in its Memorandum Opinion and Order at 2-4, 2019 WL 2649835, filed June 27, 2019 (Doc. 1051)("MOO"). The Court incorporates that recitation here.

The Court takes its background facts from the Superseding Indictment, filed March 9, 2017 (Doc. 372)("Indictment"). The Court does not set forth these facts as findings or for their truth. The Court recognizes that the factual background is largely the Plaintiff United States of America's version of events and that the Defendants who have not pled guilty are all presumed innocent.

This case deals with the crimes that the . . . SNM . . . allegedly committed through its members. See Indictment ¶¶ 1, 3, at 1-2. 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." Indictment ¶ 1, at 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." Indictment ¶ 2, at 2. 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." Indictment ¶ 2, at 2.

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. See Indictment ¶ 3, at 2. During the riot, thirty-three inmates were killed, and over200 were injured. See Indictment ¶ 3, at 2. After the PNM riot, the SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment ¶ 4, at 2. The SNM now has approximately 250 members, and "a 'panel' or 'mesa' (Spanish for ["]table["]) of leaders who issue orders to subordinate gang members." Indictment ¶ 4, at 2-3. 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 Indictment ¶¶ 3, 5, at 2-3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and the profit from narcotics trafficking. See Indictment ¶ 5, at 3. The SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment ¶ 6, at 3. 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 its power. See Indictment ¶ 6, at 3. The SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment ¶ 7, at 4. 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." Indictment ¶ 7, at 4. "Similarly, a member of the SNM Gang is expected to confront and attack any suspected law enforcement informants, cooperating witness[es], homosexuals, or sex offenders." Indictment ¶ 8, at 4. To achieve its purpose of maintaining power, the SNM uses intimidation, violence, threats of violence, assault, and murder. See Indictment ¶¶ 6-8, at 3-4. The SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment ¶ 7, at 4. The SNM's recent activities in a conspiracy to murder high ranking New Mexico Corrections Department ["NM Corrections Department"] officials inspired the Federal Bureau of Investigation's [("FBI")] present investigation. SeeUnited States v. Garcia, 221 F. Supp. 3d 1275, 1277 (D.N.M. 2016)(Browning, J.).

MOO at 2-4, 2018 WL 5980443, at *1 (alterations added). The Superseding Indictment, filed March 9, 2017 (Doc. 371), charged Garduño, along with several other co-Defendants, with Count 1: Racketeering Conspiracy in violation of 18 U.S.C. § 1962(c). See Superseding Indictment at 8. Garduño pled guilty to the charge. See Judgment in a Criminal Case, filed July 24, 2019 (Doc. 1084)("Judgment"). As part of his plea, he was committed to the Federal Bureau of Prisons ("BOP") for 41 months and was scheduled to be on supervised release for three years. Judgment at 2-3. For one of Garduño's conditions of supervised release, the Court ordered Garduño to "not communicate, or otherwise interact, with codefendant(s)/coconspirator(s)." Judgement at 5.

Garduño was released from BOP custody on July 30, 2019, when he began supervised release. See Second Amended Sentencing Memorandum at 1, filed March 16, 2020 (Doc. 1200)("Sentencing Memorandum"). On January 14, 2020, the Court issued a warrant for Garduño's arrest, because Garduño's urine sample tested positive for cocaine, and because he allegedly tampered with the urine collection process. See Sentencing Memorandum at 1. He was released on January 16, 2020, and then arrested again on February 19, 2020, after submitting another urine sample that tested positive for cocaine. See Sentencing Memorandum at 1. On March 2, 2020, Albuquerque Police Department ("APD") filed a traffic citation in the Bernalillo County Metropolitan Court that charged Garduño with Disorderly Conduct- Urinating or Defecating in Public View in violation of City of Albuquerque Ordinance 12-2-5(G) on February 19, 2020. See Sentencing Memorandum at 1. The APD reported to the USPO that, during his February 19, 2020 incident, Garduño appeared intoxicated and possessed Buphrenorphine (suboxone), and told an APD officer that he had cut off his court-ordered GPS monitor. See Sentencing Memorandum at 2. Garduño admitted that he was guilty of violating a mandatory condition of his supervised release, because he "failed to refrain from any unlawful use of a controlled substance" and "failed to submit to substance abuse testing to determine if he had used a prohibited substance." Amended Judgment at 1-2, filed April 13, 2020 (Doc. 1219). The Court committed Garduño to custody of the BOP for eight months, after which he would be on supervised release for 24 months. See Amended Judgment at 3-4. At the time of his hearing, Garduño had served thirty-seven days in custody and had an over-served time balance of 124 days, which could be credited to his revocation sentence pursuant to 18 U.S.C. 3585 (b). See Sentencing Memorandum at 2. In early June, 2020, Garduño's mother's health began to decline, and Garduño's daughter telephoned his counsel to notify counsel that Garduño's mother was expectedto pass away within the week. See Amended Motion at 2. Garduño's mother passed away on June 10, 2020. See Draft Transcript of Hearing at 9:25-10:13, held June 15, 2020 (Esquibel)("Tr.").¹

PROCEDURAL BACKGROUND

Garduño files his Amended Motion, asking the Court to release him one week early. See Amended Motion at 1. The United States originally opposed the Amended Motion, although it did not enter any response. See Amended Motion at 5. The Court held a hearing on June 15, 2020, at which the United States no longer opposed the Amended Motion. See Tr. at 3:17-22 (Equibel).

1. The Amended Motion.²

Garduño filed the Amended Motion. See Amended Motion at 1. Garduño begins his Amended Motion by providing factual context. See Amended Motion at 1. He notes that he currently is housed at Otero County, a "center of a massive COVID-10 outbreak," and the residence of many of the co-Defendants and cooperators in Garduño's case. Amended Motion at 1. According to Garduño, within a few days of his transfer to Otero County, Garduño asked his counsel to assist him in transferring out of the facility, because people associated with his...