United States v. Calvert-Cata

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UNITED STATES OF AMERICA, Plaintiff, v. PETER CALVERT-CATA, Defendant.

No. CR 16-4566 JB

United States District Court, D. New Mexico

October 26, 2022

Counsel:

Alexander M.M. Uballez

United States Attorney

Kyle T Nayback

Assistant United States Attorney

United State Attorney's Office

Albuquerque, New Mexico

Attorneys for the Plaintiff

Margaret Katze

Federal Public Defender

Sylvia A. Baiz

Assistant Federal Public Defender

Office of the Federal Defender

Albuquerque, New Mexico

Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Amended Petition for Revocation of Supervised Release, filed December 10, 2021 (Doc. 84)(“Petition”). The Court held evidentiary revocation hearings on April 13, 2022, see Clerk's Minutes, filed April 13, 2022 (Doc. 100)(“April 13 Clerk's Minutes”), and May 17, 2022, see Clerk's Minutes, filed May 17, 2022 (Doc. 104)(“May 17 Clerk's Minutes”). The primary issues are: (i) whether a preponderance of the reliable evidence supports a finding that Defendant Peter Calvert-Cata violated his supervised release mandatory condition by committing a battery against his girlfriend, Thelma Encinias, on November 14, 2021, in violation of N.M.S.A. § 30-3-16(C); and (ii) whether a preponderance of the reliable evidence supports a finding that Peter Calvert-Cata violated his supervised release mandatory condition by kidnapping Encinias on November 14, 2021, in violation of N.M.S.A. § 30-4-01(A). The Court concludes by a preponderance of the evidence that: (i) Calvert-Cata strangled Encinias in violation of N.M.S.A. § 30-03-16(C); (ii) Calvert-Cata did not kidnap Encinias in violation of N.M.S.A. § 30-04-01(A); and, by extension, (iii) Calvert-Cata violated a mandatory condition of his supervised release that he not commit another federal, state, or local crime. Accordingly, because Calvert-Cata committed a Grade A violation and has a criminal history category of I, the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) establish a revocation imprisonment range of 24 to 30 months.

PROCEDURAL BACKGROUND

On February 7, 2018, the Court sentenced Calvert-Cata to 48 months imprisonment for one count of violating 18 U.S.C. §§ 1153 and 2242(2), for committing sexual abuse in Indian Country. See Judgment at 1, filed February 7, 2018 (Doc. 61). The Court imposed 10 years of supervised release following Calvert-Cata's release from custody. See Judgment at 3.

For supervised release, the Court imposed three mandatory conditions, seventeen standard conditions, and fourteen special conditions. See Judgment at 3-7. One of Calvert-Cata's mandatory conditions is: “You must not commit another federal, state, or local crime.” Judgment at 3. One of his standard conditions is: “After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and when you must report to the probation officer, and you must report to the probation officer as instructed.” Judgment at 3. Calvert-Cata began his supervised release on May 27, 2020, and supervision is set to expire on May 25, 2030. See United States Probation Office Violation Report, filed December 10, 2021 (Doc. 85)(“Violation Report”).

The Court modified Calvert-Cata's supervised release conditions three times: (i) on May 26, 2020, see Request for Modifying the Conditions or Term of Supervision, filed May 26, 2020 (Doc. 65)(“May Request”); Order, filed May 26, 2020 (Doc. 66)(“May Order”); (ii) on August 27, 2020, see Request for Modifying the Conditions of Supervised Release, filed August 24, 2020 (Doc. 67)(“August Request”); Order, filed August 27, 2020 (Doc. 68)(“August Order”); and (iii) on October 13, 2021, see Request for Modifying the Conditions of Term of Supervision with the Consent of the Offender, filed September 23, 2021 (Doc. 78)(“October Request”); Order, filed October 13, 2021 (Doc. 79)(“October Order”).

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d)'s purposes. The Court makes these findings by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3). The Federal Rules of Evidence do not apply to revocation proceedings.^[1] See United States v. Henry, 852 F.3d 1204, 1206 (10th Cir. 2017). Instead, in making these findings, the Court does not consider any evidence or testimony from the hearing that violates the United States Court of Appeals for the Tenth Circuit's holding in United States v. Jones, 818 F.3d 1091, 1099-100 (10th Cir. 2016)(“Jones”).

1. Initial Compliance with Conditions of Supervised Release.

1. Calvert-Cata began his 10-year supervised release term on May 27, 2020, after

serving 48 months in custody for one count of violating 18 U.S.C. §§ 1153 and 2242(2), for committing sexual abuse in Indian Country. See Violation Report at 1.

2. Calvert-Cata “was initially expected to transition from Bureau of Prisons custody to residing at [a] Residential Reentry Center [(“RRC”)] in Albuquerque, New Mexico for a period of six months.” Violation Report at 1. There was, however, a COVID-19 outbreak at the RRC where Calvert-Cata was supposed to be placed, so the United States Probation Office (“USPO”) requested that the Court modify the conditions of supervised release to allow Calvert-Cata to live with his maternal grandmother on the San Juan Pueblo in Ohkay Owingeh, New Mexico instead. See Violation Report at 1; May Request.

3. On May 26, 2020, the Court modified Calvert-Cata's release conditions to permit him to live at his grandmother's house under “home incarceration” while on a 3-month “location monitoring program with the Active Global Positioning Satellite (GPS) technology under the home incarceration competent.” See May Order.

4. On May 27, 2020, Calvert-Cata reported to the USPO office in Albuquerque for his “initial intake and placement on the location monitoring program.” Violation Report at 1.

5. During the May 27, 2020, meeting with the USPO, Calvert-Cata reviewed and signed his supervised release conditions, indicating that he “understood what was expected of him during his term of supervision.” Violation Report at 1.

6. The USPO referred Calvert-Cata to the Life Link in Santa Fe, New Mexico, for a substance abuse assessment. See Violation Report at 1.

7. The substance abuse assessment provides a “diagnosis of F10.11-Alcohol abuse” that is “in remission due to incarceration (moderate),” and recommends that Calvert-Cata participate in individual counseling. Violation Report at 1.

8. The USPO also referred Calvert-Cata to Lani Solutions, LLC, for a Problematic Sexual Behavior Evaluation and Report, which relates that, “[a]t the time of the assessment,” Calvert-Cata “did not portray dangerous or violent tendencies in normal circumstances, but with negative peer influences and substances,” Calvert-Cata “may be easily pressured and susceptible to criminal thinking.” Violation Report at 1.

9. On August 24, 2020, the USPO requested that the Court extend Calvert-Cata's location monitoring condition for 3 additional months pending placement at an RRC. See Violation Report at 1; August Request.

10. On August 27, 2020, the Court modified Calvert-Cata's supervised release conditions in accordance with the USPO's August Request. See Violation Report at 1; August Order.

11. Calvert-Cata's treatment at Lani Solutions ended on October 6, 2020, because Calvert-Cata was transferred to Counseling World. See Violation Report at 1.

12. Calvert-Cata's discharge summary from Lani Solutions notes that he “was compliant with attendance” and maintained a “receptive attitude.” Violation Report at 1.

13. The discharge summary also indicates that Calvert-Cata was “new to treatment,” “had yet to demonstrate awareness around cognitive distortions or formative experiences,” and “had yet to articulate an understanding [that] he has/had problematic sexual attractions to young women.” Violation Report at 1.

2. The December 21, 2020 Incident.

14. Calvert-Cata gained employment at Kentucky Fried Chicken on November 16, 2020. See Violation Report at 2.

15. On December 21, 2020, Calvert-Cata had a physical altercation at work with “a male who is not an employee.” Violation Report at 2.

16. The USPO learned of the altercation from Calvert-Cata's mother. See Violation Report at 2.

17. After the altercation, Calvert-Cata “consumed six miniatures of alcohol.” Violation Report at 2.

18. After the altercation, Calvert-Cata also “became paranoid” and did not tell USPO where he was, but he “subsequently disclosed his whereabouts and returned home.” Violation Report at 2.

19. The USPO contacted Calvert-Cata on December 22, 2020, and instructed him to report for a random alcohol test at Hoy Recovery, and Calvert-Cata complied with that instruction. See Violation Report at 2.

20. His blood alcohol content registered 0.095 and 0.094. See Violation Report at 2.

21. After his alcohol testing, Calvert-Cata “attempted to stall on drug testing by requesting more time to produce a specimen,” but, after being denied more time, “submitted a urine specimen.” Violation Report at 2.

22. After the December 21, 2020 incident, neither Calvert-Cata's maternal grandmother nor Calvert-Cata's parents wanted Calvert-Cata to live at Calvert-Cata's maternal grandmother's house. See Violation Report at 2.

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