United States v. Yazzie

UNITED STATES OF AMERICA, Plaintiff, v. WILLIS YAZZIE, Defendant.

No. CR 10-1761 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

FILED: May 7, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Amended Sentencing Memorandum in Support of Rule 11(c)(1)(C) and Objections to PSR, filed June 19, 2013 (Doc. 107)("Sentencing Memo.").¹ The Court held a sentencing hearing on March 21, 2014. The primary issues are: (i) whether the Court should continue the sentencing, at Yazzie's request, to allow the victims to attend the sentencing; (ii) whether the Court should apply the 4-level enhancement under U.S.S.G. § 2A3.1(b)(1), for an offense that involves conduct that violates 18 U.S.C. § 2241(a), when Defendant Willis Yazzie pled guilty to 18 U.S.C. § 2241(a); (iii) whether the Court should apply the 5-level enhancement under U.S.S.G. § 4B1.5(b)(1), for a repeat and dangerous sex offender against minors where the defendant engaged in a pattern of activity involving prohibited sexual conduct, when Yazzie engaged in, but was not convicted for, prohibited sexual conduct; and (iv) whether the Court should grant Yazzie a variance based on his lack of guidance growing up and his mental condition. The Court will not continue the sentencing, because Yazzie may not assert the victims' rights, and the victims have not requestedto continue the sentencing so that they may attend. The Court will overrule Yazzie's sentencing objections. Section 2A3.1(b)(1) applies automatically when the defendant is convicted under 18 U.S.C. § 2241(a), and thus, the 4-level enhancement applies. Although Yazzie has not been convicted for other instances of prohibited sexual conduct, § 4B1.5(b)(1) does not require that the pattern of activity involves convictions. The Court will vary from the sentencing guidelines range, accept the Plea Agreement, filed February 9, 2011 (Doc. 38), and sentence Yazzie to a term of 188 months incarceration and eight years of supervised release.

FACTUAL BACKGROUND

Yazzie lived in an "eight-foot-by-eight-foot shack" in Two Grey Hills, New Mexico, with his wife and their four children, two of whom were Jane Doe 1 and Jane Doe 2, Yazzie's stepdaughters. United States' Response to Defendant's Motion Withdraw [sic] His Plea of Guilty at 1, filed December 30, 2011 (Doc. 62)("Response")(citation omitted). The Navajo Tribal Police Department learned that Yazzie was allegedly abusing Jane Doe 1, who was thirteen years old at the time, and Jane Doe 2, who was then ten years old, on May 3, 2010. Response at 1. On May 10, 2010, the Navajo Police interviewed Yazzie regarding the allegations. See Response at 4. Before the interview, Yazzie gave an oral and written waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).² See Response at 4. Yazzie admitted that he had an intimaterelationship with Jane Doe 1, which involved him kissing Jane Doe 1, holding hands with her, putting his penis on her cheek and telling her to suck it, which she would not, and touching her vagina, both over her clothes and under clothes, including penetration with his finger. See Response at 4. Yazzie denies ever having intercourse with Jane Doe 1. See Response at 1-2. Yazzie admitted that he touched Jane Doe 2's vagina one night, but contends that he thought it was his wife's, and not Jane Doe 2's, which he was touching. See Response at 5. He denies having intercourse with Jane Doe 2. See Response at 5.

PROCEDURAL BACKGROUND

In the Criminal Complaint, filed May 12, 2010 (Doc. 1), Plaintiff United States of America charged Yazzie with committing "multiple acts of aggravated sexual abuse to two minor children under the ages of twelve and sixteen years in violation of 18 U.S.C. §§ 2241(c) and 2246(2)(C)(D). Criminal Complaint at 1. A person convicted under 18 U.S.C. § 2241(c) "shall be fined under this title and imprisoned for not less than 30 years or for life." 18 U.S.C. § 2241(c). A Grand Jury indicted Yazzie on two counts of aggravated sexual abuse: as to Jane Doe 1, the Grand Jury indicted Yazzie for violating 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(C), and as to Jane Doe 2, the Grand Jury indicted him for violating 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(D). See Indictment at 1-2, filed June 10, 2010 (Doc. 12). Yazzie pled not guilty to the two counts in the Indictment. See Clerk's Minutes of Arraignment at 1, filed June 16, 201 (Doc. 14).

As part of a Plea Agreement, filed February 9, 2011 (Doc. 38), Yazzie pled guilty to an Information, filed February 9, 2011 (Doc. 35), in which the United States charged Yazzie with Aggravated Sexual Abuse of Jane Doe 1, in violation of 18 U.S.C. §§ 1153, 2241(a), and 2246(2)(C). See Information at 1; Plea Agreement ¶ 3, at 2. A person convicted under 18 U.S.C. § 2241(a) "shall be fined under this title, imprisoned for any term of years or life, or both." 18 U.S.C. § 2241(a). The United States and Yazzie made an agreement to a specific sentence "between 15 years (180 months) and 19 years (228 months) imprisonment," pursuant to rule 11(c)(1)(c) of the Federal Rules of Criminal Procedure. Plea Agreement ¶ 10(a), at 4.

The United States Probation Office ("USPO") disclosed a Presentence Investigation Report ("PSR") for Yazzie on April 27, 2011. In the PSR, the USPO notes that, according to the Plea Agreement, the parties agreed that the appropriate sentence is 15 to 19 years, and that Yazzie "cannot seek a downward departure, variance, or deviation of any kind from the agreed upon sentencing range." PSR ¶ 4(a)-(b), at 3. After comparing the 2009 edition of the United States Sentencing Guideline Manual to the 2010 edition, the USPO determined that neither edition was more beneficial and used the 2010 edition for the computations. See PSR ¶ 29, at 9. The USPO calculates Yazzie's base offense level at 30 under U.S.S.G. § 2A3.1(a)(2). See PSR ¶ 30, at 9. It increases the calculation by 4 levels pursuant to § 2A3.1(b)(1), which provides that "if the offense involved conduct described in 18 U.S.C. § 2241(a) or (b), increase by 4 levels." PSR ¶ 31, at 10. 18 U.S.C. § 2241(a) defines aggravated sexual abuse by force or threat: "Whoever . . . knowingly causes another person to engage in a sexual act -- (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so . . . ." 18 U.S.C. § 2241(a). The USPO relies on this background for a 4-level enhancement:

The defendant was charged with Aggravated Sexual Abuse by force or threat. [Jane Doe 1] described being alone with Yazzie on numerous occasions when he would force her onto the bed then sit on her abdomen so she was unable to move. He would then kiss her, forcing her to kick, and hit him until he let her go. [Jane Doe 1] also reported that the defendant threatened to hurt their mother if she or her sister disclosed the abuse.

PSR ¶ 31, at 10. The USPO applied an additional 4-level enhancement under U.S.S.G. § 2A3.1(b)(2), see PSR ¶ 32, at 10; that provision provides for a 4-level increase if the "victim had not attained the age of twelve years," or a 2-level increase if the "victim had attained the age of twelve years but had not attained the age of sixteen years," U.S.S.G. § 2A3.1(b)(2). The PSR calculates that Jane Doe 1 "was 12 years old at the time the abuse charged in the Information occurred, however, reports reflect and the defendant admitted that the abuse began in 2008, when [Jane Doe 1] was less than 12 years of age." PSR ¶ 32, at 10. Further, the PSR calculates that Jane Doe 2 was 10 years old when Yazzie sexually abused her. See PSR ¶ 32, at 10. The USPO applied a 2-level increase under U.S.S.G. § 2A3.1(b)(3), which requires the 2-level increase "if the victim was in the custody, care, or supervisory control of the defendant." PSR ¶ 33, at 10. "The defendant was in a long term relationship with the victim's [sic] mother and was considered their stepfather. The victim's [sic] mother stated she occasionally left the children alone to be supervised by Yazzie." PSR ¶ 33, at 10. The USPO also increases the offense by 5 levels pursuant to § 4B1.5(b)(1), an adjustment for repeat and dangerous sex offenses against minors; that provision applies "in any case in which the defendant's instant offense of conviction is a covered sex crime and the defendant engaged in a pattern of activity involving prohibited sexual conduct . . . ." PSR ¶ 37, at 10. The USPO asserts that this increase is appropriate because of Yazzie's conduct with Jane Doe 1 between 2008 and 2010, and his conduct with Jane Doe 2 during the several months before his arrest. See PSR ¶ 37, at 10-11. Based on Yazzie's acceptance of responsibility, the USPO reduces the calculation by 2 levels pursuant to U.S.S.G.§ 3E1.1 and an additional 1 level for a motion it expects the United States to make at sentencing. See PSR ¶ 38-39, at 11. The USPO calculates that Yazzie has 2 criminal history points, based on an arrest on December 31, 2003, resulting in a criminal history category of II. See PSR ¶ 49, at 14. "Based on the total offense level of 42 and a criminal history category of II, the guideline imprisonment range is 360 months to life." PSR ¶ 73, at 19.

Yazzie objected to the PSR's 5-level enhancement under U.S.S.G § 4B1.5(b)(1), which raises Yazzie's offense level to 45 before reducing the range for acceptance of responsibility. See Letter from James Loonam to Victoria Gutierrez, United States Probation Officer, at 1, dated April 29, 2011, filed April 29, 2011 (Doc. 129)("PSR Objections"). "Mr. Yazzie does not dispute the factual basis for this suggestion. Mr. Yazzie does dispute raising his Offense Level beyond level 43. There can be no offense level beyond level 43." PSR Objections at 1-2. He cites an application note to the sentencing table that provides: "In rare cases, a total offense level of . . . more than 43 may...