United States v. Sandoval-Enrique

171 F.Supp.3d 1190

United States of America, Plaintiff,

v.Manuel De Jesus Sandoval–Enrique, Defendant.

No. CR 15–1030 JB

United States District Court, D. New Mexico.

Filed March 21, 2016

David P. Martinez, United States Attorney, Presiliano A. Torrez, Assistant United States Attorney, Albuquerque, New Mexico, Attorneys for the United States

Margaret A. Katze, Federal Public Defender, Albuquerque, New Mexico, Attorney for the Defendant

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Sentencing Memorandum, filed February 11, 2016 (Doc. 25). The Court held sentencing hearings on May 14, 2015, September 29, 2015, and March 14, 2016. The primary issue is whether a sentence of time-served is sufficient, but not greater than necessary, to comply with the statutory directives in 18 U.S.C. § 3553(a), when Defendant Manuel De Jesus Sandoval–Enrique has been convicted four times, including this case; been deported six times, before this case; and has returned to the United States of America after serving a sentence of 16 months in prison. Because Sandoval–Enrique returned to the United States for purely economic reasons, even after serving a 16–month prison sentence, the Court concludes that a time-served sentence—which is approximately 45 days less than a sentence at the high end of the United States Sentencing Guidelines range—will not be sufficient to comply with § 3553(a)'s directives. Accordingly, the Court denies the requests in Sandoval–Enrique's Sentencing Memorandum for a time-served sentence—about twelve months—and imposes a sentence at the high end of the Guidelines range: 16 months, which, with good behavior, is approximately a 14–month sentence.

FACTUAL BACKGROUND

The Court takes its facts from the revised Presentence Investigation Report (disclosed December 22, 2015)(“PSR”).¹ Sandoval–Enrique was born in San Pedro Sula, Honduras to Maria De Jesus Sandoval, who is deceased, and Pablo Sandoval, also deceased. See PSR ¶ 34, at 7. He has three siblings. See PSR ¶ 34, at 7. He has been married for twenty-two years to Maria Aguilar–Sandoval, and together they have six children. See PSR ¶ 35, at 7. Sandoval–Enrique reports six years of formal education in Honduras. See PSR ¶ 39, at 8. His usual occupation is as a construction worker. See PSR ¶ 40, at 8.

In Honduras, Sandoval–Enrique worked as a driver for Pepsi. “He used the money he earned at his job to build a house for him, his wife Maria, and their six children.” Sentencing Memorandum at 4. Unfortunately, San Pedro Sula is flooded with gang violence. See Luke Mogelson, The Departed, The New York Times Magazine (Dec. 9, 2015), http://www.nytimes.com/2015/12/13/magazine/the-deported.html?_r=3; Sibylla Brodzinsky & Ed Pilkington, US Government Deporting Central American Migrants to Their Deaths, The Guardian (Oct. 12, 2015), http://www.theguardian.com/us-news/2015/oct/12/obama-immigration-deportations-central-america?CMP=share_btn_link. While Sandoval–Enrique worked for Pepsi, he was able to pay the gangs their “rent” and thereby avoid their wrath. Sentencing Memorandum at 4. By “paying them 500 Honduran Lempiras (approximately $22) a month for himself as well as 500 Lempiras a month for the business (so that he could perform his soda delivery in peace),” he could avoid harm to him and his family. Sentencing Memorandum at 4. Due to his relatively advanced age, Pepsi laid off Sandoval–Enrique. The gangs nonetheless demanded that Sandoval–Enrique either pay them or turn over his home as a means of payment. See Sentencing Memorandum at 4. To pay the gangs and keep his family safe, Sandoval–Enrique illegally entered the United States to obtain work and make money for his family. See Presentence Investigation Report at 1–2 (disclosed in the Western District of Texas in Docket No. EP–06–CR–1864 on December 19, 2006)(“Texas PSR”)(“Sandoval–Enrique stated due to the economic conditions of Honduras he felt helpless and believed the only way he could make enough money for his family would be to find employment in the United States.”).

Since the time when Sandoval–Enrique initially began illegally entering the United States, he has been convicted four times, including this conviction, and arrested three additional times in cases that were later dismissed. See PSR ¶¶ 26–27, at 6. First, on August 6, 2000, Sandoval–Enrique was arrested for shoplifting and concealment of goods in Mecklenburg County, North Carolina. See PSR ¶ 30, at 6. The charges were later dismissed. See PSR ¶ 30, at 6. Second, on October 29, 2001, Sandoval–Enrique was convicted and sentenced by the Western District of Texas to 145 days in custody for illegally entering the United States. See PSR ¶ 23, at 5. On April 4, 2002, he was deported to Honduras. See PSR ¶ 23, at 5. Third, on November 2, 2004, Sandoval–Enrique was arrested in Imperial, California for theft.² See PSR ¶ 31, at 7. Fourth, on November 19, 2005, he was arrested for unlawful entry in Washington, D.C. See PSR ¶ 32, at 7. The charges were later dismissed, but the USPO was unable to locate further documentation surrounding this arrest. See PSR ¶ 32, at 7. Fifth, on May 9, 2006, Border Patrol agents “encountered the defendant in custody awaiting disposition on charges of Attempted Burglary and Possession of Burglary Tools, which occurred on December 15, 2005.” PSR ¶ 24, at 5. The attempted burglary charges “were not pursued as the defendant was taken into immigration custody.” PSR ¶ 24, at 5. The Southern District of New York then convicted him of illegal reentry and sentenced him to 43 days' time served and a 3–year supervised release term. PSR ¶ 24, at 5. He was deported to Honduras on July 6, 2006. See PSR ¶ 24, at 5. Sixth, on September 10, 2006, shortly after he was deported, Border Patrol agents encountered Sandoval–Enrique attempting to enter the United States through the Mexico–Texas border. See PSR ¶ 25, at 5–6. He was convicted of illegal reentry by the Western District of Texas. See PSR ¶ 25, at 5–6. The Western District of Texas sentenced him to 16 months in custody with a 3–year term of supervised release. See PSR ¶ 25, at 5. Additionally, the Southern District of New York revoked Sandoval–Enrique's supervised release and sentenced him to 6 months in custody to be served consecutively with the Western District of Texas' sentence. See PSR ¶ 24, at 5. “Sandoval–Enrique admitted being a native and citizen of Honduras,” and stated that his family still remained in Honduras. Texas PSR at 1–2. Sandoval–Enrique “was deported to Honduras via Houston, Texas.” PSR ¶ 25, at 6. The PSR also notes that Sandoval–Enrique “has been found to be in the United States illegally on the following dates: October 20, 1995, March 26, 2002, December 1, 2004, April 11, 2005, July 4, 2005, and March 25, 2009.” PSR ¶ 28, at 6.

Because Sandoval–Enrique kept being deported and could not afford to pay the gangs, he and his family fled to Mexico where he was granted asylum and obtained safety. See Sentencing Memorandum at 4. In the years after Sandoval–Enrique obtained asylum in Mexico, he experienced difficulties obtaining employment. See Sentencing Memorandum at 5. He notes that “Mexico provided him the safety he and his family needed” and gave him the ability “to earn enough money for food and basic necessities.” Sentencing Memorandum at 5. Nonetheless, he was unable to earn enough money to construct a home for his family. See Sentencing Memorandum at 5. He states that this inability to provide for his family led him to enter the United States to pursue better work opportunities. See Sentencing Memorandum at 5–6.

On February 28, 2015, United States Border Patrol agents arrested Sandoval–Enrique as he attempted to hide in a large ditch near Santa Teresa, New Mexico. See PSR ¶ 7, at 3. Sandoval–Enrique stated that he was a citizen of Mexico and that he did not possess legal authorization to enter or remain in the United States. See PSR ¶ 7, at 3.

PROCEDURAL BACKGROUND

On March 26, 2015, Plaintiff United States of America filed an Information in the United States District Court for the District of New Mexico charging Sandoval–Enrique with Reentry of a Removed Alien in violation of 8 U.S.C. § 1326(a)(1), (2) and § 1326(b)(1). See Information at 1, filed March 26, 2015 (Doc. 9). The Information alleges that Sandoval–Enrique reentered the United States “while an Order of Exclusion, Deportation, and Removal was outstanding.” Information at 1. On March 26, 2015, Sandoval–Enrique pled guilty to the one-count Information. See Fast Track Plea Agreement, filed March 26, 2015 (Doc. 12).

The Court will discuss the procedural background in three sections. First, it will describe the PSR's sentencing Guidelines calculations. Second, the Court will discuss the two previous sentencing hearings, where the Court rejected the plea agreements. Third, the Court will discuss Sandoval–Enrique's Sentencing Memorandum and the third sentencing hearing.

1. The First PSR.

The USPO disclosed its first PSR in May. See May PSR (disclosed May 1, 2015) (“May PSR”). It is identical to the revised PSR with one exception: the May PSR reduced the total offense level an additional 4 levels as a result of the Fast Track Plea Agreement between the United States and Sandoval–Enrique. See May PSR ¶ 18, at 4. Both the PSR and the May PSR state that Sandoval–Enrique's base offense level for a violation of 8 U.S.C. § 1326 is 8. See PSR ¶ 12, at 4; May PSR ¶ 10, at 4. They add 4 levels under U.S.S.G. § 2L1.2(b)(1)(D), because he has previously been deported after a felony conviction. See PSR ¶ 13, at 4; May PSR ¶ 11, at 4. They make a 2–level reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility, resulting in a total offense level of 10. See PSR ¶¶ 19–20, at 4; May PSR ¶ 17, at 4. The May PSR, however, makes the additional 4–level reduction to reflect the plea agreement, resulting in a total offense level of 6. See May ...