United States v. Gutierrez

405 F.Supp.3d 1226

UNITED STATES of America, Plaintiff,

v.Shauna GUTIERREZ, Defendant.

No. CR 15-4268 JB

United States District Court, D. New Mexico.

Filed June 11, 2019

John C. Anderson, United States Attorney, Maria Ysabel Armijo, Randy M. Castellano, Assistant United States Attorneys, United States Attorney's Office, Las Cruces, New Mexico, Attorneys for the Plaintiff.

Angela Arellanes, Albuquerque, New Mexico, Attorneys for Defendant Shauna Gutierrez.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Sealed Objections to the Presentence Report and Sentencing Memorandum for Defendant Shauna Gutierrez, filed March 6, 2019 (Doc. 2558)("Objections").¹

The primary issue is whether the 2-level increase for the victim's sustaining serious bodily injury under § 2A2.1(b)(1)(B) of the United States Sentencing Guidelines Manual (U.S. Sentencing Comm'n 2018)("U.S.S.G.")² applies where the Plaintiff United States of America did not present medical testimony at trial that the assault on Jose Gomez resulted in serious bodily injury. The Court concludes that medical testimony is not necessary to establish that Gomez suffered serious bodily injury. Accordingly, the Court overrules Gutierrez' Objection and applies the 2-level adjustment under U.S.S.G. § 2A2.1(b)(1)(B).

Defendant Shauna Gutierrez pled guilty to the Second Superseding Indictment Count 14, "Conspiracy to Murder J.G."; Count 15, "Attempted Murder of J.G., Assault With a Dangerous Weapon Upon J.G., Resulting in Serious Bodily Injury to J.G."; and Count 16, "Tampering With a Witness, Victim, or Informant by Physical Force or Threat," on March 29, 2018. Second Superseding Indictment at 17-18, filed March 9, 2017 (Doc. 949). See Plea Agreement at 2, filed March 29, 2018 (Doc. 2003). In her Plea Agreement, Gutierrez admits the following facts and declares them true under penalty of perjury:

The United States could prove at trial that the Syndicato de Nuevo Mexico (SNM) prison gang is an ongoing criminal organization whose members, prospects and associates engage in acts of violence and other criminal activities including murder, kidnapping, attempted murder, and conspiracy to manufacture/distribute narcotics. The SNM operates in the District of New Mexico and elsewhere. The SNM constitutes an enterprise (individuals associated in fact that engaged in, or the activities of which, affected interstate commerce) that engaged in racketeering activity.

On or about February 27, 2016, in the District of New Mexico, I conspired with others to harm the person identified in the indictment as J.G., an SNM gang member. J.G. was a witness in a formal proceeding against an SNM gang member. I provided other individuals with J.G.'s physical location, upon which they went to that location and assaulted J.G. J.G. was struck on the head with a machete, which injured his head and caused serious bodily injury.

Part of the reason J.G. was beaten was to prevent him from testifying in a formal proceeding against an SNM gang member. I committed these crimes and I aided and abetted others involved in the commission of these crimes.

Plea Agreement ¶ 13, at 5-6. The Plea Agreement provides that Gutierrez "agrees that the Court may rely on any of these facts, as well as facts in the presentence report, to determine the defendant's sentence, including, but not limited to, the advisory guideline offense level." Plea Agreement ¶ 14, at 6.

The Presentence Investigation Report, filed July 18, 2018 (Doc. 2350)("PSR"), elaborates on the offense conduct, providing:

21. On February 27, 2016, a deputy with the Valencia County Sheriff's Office was dispatched to a residence in Belen, New Mexico, in reference to a disturbance. According to the caller, an unidentified person forced his way into a person's home, and a total of four individuals came into the residence carrying swords, guns, and a machete. The call was disconnected, and officers responded to the home in question. Once at the residence, deputies were not able to locate any evidence of a crime. Deputies learned another person had called and stated they had witnessed a man covered in blood running across their property; however, he was no longer in the area. Shortly thereafter, deputies were dispatched to another residence as the caller stated her son, J.G., had been injured. Once at the second residence, emergency medical services (EMS) were requested. EMS evaluated J.G. and subsequently transported him to the University of New Mexico Hospital (UNMH) in Albuquerque, New Mexico.

22. A detective with the Valencia County Sheriff's Office, Criminal Investigation Division proceeded to UNMH and made contact with the emergency room staff, who advised J.G. had two lacerations to his head, one on the crown and the second above his right temple. He also had a broken nose, and his right eye was swollen and discolored. Upon the detective making contact with J.G., he disclosed he had been working on Charlene Johnson's residence in Belen and had been staying at her home. According to J.G., Johnson left her home at approximately 9:00 AM on February 27, 2016, and asked him to "watch the house". He fell asleep on one of the beds and was awaken with a punch to his stomach. He saw four people standing over him and identified them as Santos Gonzales, Brandy Rodriguez, Paul "Oso" Rivera, and another female he did not recognize.

23. J.G. indicated Gonzales asked, "You remember me?" and hit him in the eye. Gonzales instructed the unknown female to go to the front and watch the door. One of the individuals told J.G. that Joe Lawrence Gallegos had put a "hit" on him, and they were going to kill him. "Oso" then hit J.G. with a baton, after which, he passed the weapon to Rodriguez, and she hit J.G. J.G. noted he saw Gonzales holding a machete, and as he attempted to get off of the bed, Gonzales struck him twice on his head with the machete "like he was chopping a pineapple". According to J.G., he fell to the floor and lost consciousness.

....

27. On March 9, 2016, the detective made contact with J.G. for a follow-up interview. According to J.G., he had recently been followed by people driving a white van but did not provide any additional information as to why he might be followed. J.G. added the three individuals who attacked him mentioned Joe Lawrence Gallegos had put a "green light" on him, and they were going to "kill him". J.G. indicated Rodriguez and "Oso" had batons, while Gonzales was carrying a machete. He stated all three beat him with batons, and Gonzales struck him in the head with the machete. J.G. noted he lost consciousness and was presumed dead.

....

29. On May 17, 2016, FBI agents again met with Johnson in reference to the incident that occurred at her home in February 27, 2016. According to Johnson, Rodriguez and two men came to her house and asked to speak to J.G. Johnson identified the two men as Santos Gonzales and Paul Rivera. She noted they told her to leave the house, then pushed past her to go find J.G. Johnson stated she heard shouting and described it as "the worst sound I've ever heard". She added, "They almost killed him. It was terrible." Johnson stated she, Rivera, Rodriguez, and Gonzales then went into the backyard. A short time later, J.G. fled the house and jumped over the fence. Gonzales and Rivera shouted, "He's running! He's getting away!" Johnson stated the other three fled the scene in an unspecified vehicle. According to Johnson, she believed the assault had something to do with Joe Lawrence Gallegos and his girlfriend, Shauna Gutierrez .

....

31. In summary, ... three ... individuals[, not including Guiterrez,] attacked J.G. with a machete and a baton and would not allow him to leave the room where he was attacked after he regained consciousness. It is noted, J.G. sustained serious bodily injury as a result of the attack. All of this was done in an effort to stop J.G. from testifying at the trial of a known SNM member. The group conspired, and attempted, to murder J.G., and when they were unable to do so, they attempted to hide the weapons and all other items that would identify them as the individuals involved in the attack. It does not appear any one individual was leading the others; therefore, neither an aggravating nor mitigating role appears warranted in this case.

PSR ¶¶ 21-23, 27, 29, 31, at 9-11. The Court notes that the United States Probation Office ("USPO") with the Addendum to the Presentence Report, filed March 22, 2019 (Doc. 2595)("First Addendum"), updated paragraph 31 to comply with Gutierrez' Objections which notes that Gutierrez was not present when the attack on Gomez took place, because her three co-Defendants took her vehicle to the scene of Gomez' attack, leaving Gutierrez at Gallegos' home. See Objections at 4 (objecting because "Gutierrez was not present when the attack took place. The attack occurred at the trailer home of Charlene Johnson. Shauna Gutierrez was at the trailer belonging to Joe Gallegos at the time of the attack."); First Addendum at 3 (stating that Gutierrez is correct, and that the PSR "is updated to state Ms. Gutierrez was not one of the subjects who attacked J.G. with a machete and baton").

The USPO applies a base offense level of 33 under U.S.S.G §§ 2E1.3(a)(2) and 2A2.1(a)(1). See PSR ¶ 37, at 14. The USPO applies a 2-level increase under § 2A2.2(b)(1)(B), because Gomez sustained serious bodily injury, to which Gutierrez objects. See PSR ¶ 38, at 13; Objections at 5. Gutierrez provides that "Jose Gomez sustained two lacerations to his head, one on the crown and the second above his right temple. J.G. also had a broken nose and his right eye was swollen and discolored." Objections at 5. Gutierrez notes that Gallegos is the only Defendant charged in Counts 14-16 who went to trial, and that "[t]he jury returned a verdict of ‘Not Guilty’ for" these Counts. Objections at 5. Gutierrez contends that "[m]edical evidence was not presented to...