United States v. Benally

19 F.4th 1250

UNITED STATES of America, Plaintiff - Appellee,

v.Angelita BENALLY, Defendant - Appellant.

No. 20-2157

United States Court of Appeals, Tenth Circuit.

FILED December 13, 2021

Emily P. Carey, Assistant Federal Public Defender (Tania Shahani, Research and Writing Specialist, with her on the briefs), Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for the Appellant.

Frederick Mendenhall, Assistant United States Attorney (Fred J. Federici, Acting United States Attorney, with him on the briefs), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, appearing for the Appellee.

Before PHILLIPS, BALDOCK, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Angelita Benally was responsible for a head-on car crash that resulted in the death of her front seat passenger and severely injured the other driver. Benally was indicted on one count of involuntary manslaughter in Indian Country and one count of assault resulting in serious bodily injury. Benally and the government entered into a written plea agreement. Under the terms of that agreement, Benally pleaded guilty to the involuntary manslaughter charge and the government dismissed the assault charge. The agreement also provided that the district court would order restitution pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A.

The district court sentenced Benally to a term of imprisonment of thirty months, to be followed by a three-year term of supervised release. In accordance with the terms of the plea agreement, the district court ordered Benally to pay restitution pursuant to the MVRA. More specifically, the district court ordered Benally to pay restitution to the deceased passenger's family and to the other driver.

Benally appealed the district court's restitution order, arguing initially that the district court lacked authority under the MVRA to order her to pay restitution to the other driver because he was not a victim of the involuntary manslaughter offense. After the parties filed their appellate briefs, the Supreme Court issued its decision in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). Benally now argues, in light of Borden , that the district court lacked authority to order restitution "under the MVRA at all," and instead "may only grant restitution in its discretion under the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663." Aplt. Supp. Br. at 6. And she in turn argues that we "must reverse with instructions to vacate the portion of her restitution order that provides compensation for losses sustained by" the other driver. Id . at 10.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that Benally has failed to establish her entitlement to plain-error relief. Consequently, we affirm the judgment of the district court.

I

Factual history

In the early morning hours of March 5, 2019, the New Mexico State Police (NMSP) began receiving calls regarding a vehicle driving westbound in the eastbound lanes of Interstate 40 (I-40) near mile marker 100. Shortly thereafter, the NMSP were dispatched to mile marker 97 of eastbound I-40 regarding a vehicle crash. That location was within the Acoma Pueblo Indian Reservation.

An NMSP officer who arrived on the scene determined from the physical evidence that a red Saturn Vue was traveling westbound in the eastbound lanes of I-40 and struck a silver Nissan Altima that was traveling eastbound. Both vehicles were severely damaged in the accident. The officer spoke with the driver of the Saturn, who was identified as Benally. Benally told the officer that she had consumed "four cans" and the officer could smell alcohol emanating both from Benally and her vehicle. ROA, Vol. II at 14. Benally stated that she and her front seat passenger were traveling home, but she was not able to identify where her home was. The officer also spoke with the driver of the Altima, J.G. J.G. was unable at that time to provide clear details regarding what occurred, but he confirmed that he was driving eastbound at the time of the accident.

Both Benally and J.G. sustained severe injuries as a result of the crash and were transported to the University of New Mexico Hospital in Albuquerque. The front seat passenger in Benally's vehicle, L.C., died at the scene of the crash. L.C. was later identified as Benally's boyfriend. Both Benally and L.C. were determined to be enrolled members of the Navajo Nation.

On March 5, 2019, a Bureau of Indian Affairs (BIA) agent interviewed J.G. at the hospital. J.G. stated that he had been traveling from California to Albuquerque at the time of the crash. He recalled seeing a vehicle traveling at high speed in his direction. J.G. stated that he slowed down and honked at the oncoming vehicle, then put his hands over his face before the vehicles collided. J.G. stated that he later woke up and was on the ground and did not know what had occurred. J.G. stated that he sustained two fractured ribs on his left side, one of which punctured or damaged his lung, as well as soft tissue injuries and small cuts from flying objects.

On March 8, 2019, a BIA agent interviewed Benally at the hospital. She stated that the only thing she remembered was being at home after returning from a store. Benally estimated that she began drinking that day after lunch time when she was alone. She also recalled that she and L.C. were drinking but was not able to provide the agent with information regarding her pattern of drinking. Benally could not remember what time she left her house and started driving. Nor could she remember speaking with the police after the accident.

Procedural history

On October 9, 2019, a federal grand jury returned a two-count indictment against Benally. Count 1 charged Benally with involuntary manslaughter in Indian Country, in violation of 18 U.S.C. §§ 1153 and 1112. Count 2 charged Benally with assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6).

On February 21, 2020, Benally entered into a written plea agreement with the government. Under the terms of the agreement, Benally agreed to plead guilty to Count 1 of the indictment, which charged her with involuntary manslaughter in Indian Country. In exchange, the government agreed, in pertinent part, to dismiss Count 2 of the indictment and to "not bring additional criminal charges against" her "arising out of the facts forming the basis of the" indictment. ROA, Vol. I at 19.

In support of her agreement to plead to Count 1, Benally admitted the following facts:

I, Angelita Benally, am an enrolled member of the Navajo Nation Tribe and an Indian, as defined by federal law. On March 5, 2019, I was driving on Interstate 40 near milemarker [sic] 97, on the Acoma Reservation, which is within the District of New Mexico. L.C. who is an enrolled member of the Navajo National Tribe was in the passenger seat of the vehicle. While driving, I crashed my car into another vehicle. As a result of the crash L.C. was killed. I learned later that I told the officers who responded to the crash that I had been drinking. I also later learned that my blood alcohol level was measured .226, within two hours of the crash, and that I had been driving at a speed of approximately 90 mph on Interstate 40 where the posted speed limit is 75 mph.

Id . at 15.

The plea agreement included a section entitled "RESTITUTION." Id . at 18. That section stated:

The parties agree that, as part of the Defendant's sentence, the Court will enter an order of restitution pursuant to the Mandatory Victim's Restitution Act, 18 U.S.C. § 3663A. The parties agree that, although this plea agreement does not result in a conviction for an offense described in 18 U.S.C. § 3663A(c)(1), an offense listed in 18 U.S.C. § 3663A(c)(1) gave rise to the plea agreement. 18 U.S.C. § 3663A(c)(2).

Id .

The probation office prepared a presentence investigation report (PSR) and submitted it to the district court and the parties. In a section entitled "Victim Impact," the PSR noted that on March 30, 2020, a probation officer interviewed L.C.’s mother and aunt by telephone. ROA, Vol. II at 16. The probation officer noted that the mother and aunt were "claiming restitution for travel expenses" for two trips for court hearings and one trip to collect L.C.’s belongings from Benally's apartment. In total, they sought restitution "in the amount of $779.70." Id . Under this same "Victim Impact" section, the PSR noted that the probation officer interviewed J.G. on April 7, 2020. Id . J.G. told the probation officer that "[h]e was not able to work for several months" after the accident and "was supported financially by friends and family while he was unemployed." Id . J.G. also told the probation officer that "[h]e received a bill for medical services for $27,000 which he has not been able to pay," and has "not [been] able to get continuing medical care for the injuries he sustained during the accident." Id . The PSR noted that J.G. "would like to make a claim for restitution" but was "in the process of getting documentation together and w[ould] provide them to the probation office when they have been compiled." Id . at 17. The PSR further noted that the "Court w[ould] be notified by way of addendum once all the documents [we]re received and the restitution amount c[ould] be determined for" J.G. Id .

Under a section entitled "SENTENCING OPTIONS," the PSR concluded that, "[b]ased upon a total offense level of 19 and a criminal history category of I, the guideline imprisonment range [wa]s 30 months to 37 months." Id . at 24. The PSR also noted that, "[p]ursuant to 18 U.S.C. § 3663A, restitution shall be ordered in this case," but that "the total amount of restitution ha[d] not [yet] been determined." Id . at 26.

On May 8, 2020, Benally filed objections to the PSR. Benally objected to the restitution amount listed in the PSR for L.C.’s mo...