Opinion
No. CR 19-1433 JB
01-25-2020
UNITED STATES of America, Plaintiff, v. Daniel JUARIGUI, Defendant.
John C. Anderson, United States Attorney, Kristopher N. Houghton, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff Margaret A. Katze, Assistant Federal Public Defender, Federal Public Defenders Office, Albuquerque, New Mexico, Attorney for the Defendant
John C. Anderson, United States Attorney, Kristopher N. Houghton, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff
Margaret A. Katze, Assistant Federal Public Defender, Federal Public Defenders Office, 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 Sealed Objections and Sentencing Memorandum, filed December 5, 2019 (Doc. 38)("Objections"). The issues are: (i) whether the Court should classify Defendant Daniel Jaurigui as a career offender under § 4B1.1(B) of the United States Sentencing Guidelines Manual (U.S. Sentencing Comm'n 2018)("U.S.S.G." or "Sentencing Guidelines"), because his past conviction does not count for sentencing purposes because it was a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (" Alford"); and (ii) whether Jaurigui should pay $500.00 in community restitution. The Court concludes that: (i) Jaurigui's past dispositions are adjudications of guilt that render him a career offender; and (ii) Jaurigui's current assets, other financial commitments, and likelihood of obtaining the restitution soon after release counsel against imposing community restitution. Accordingly, the Court overrules the career-offender Objection and sustains the community-restitution Objection.
Although the Defendant's surname is spelled Juarigui, the Court notes that the Defendant spells his surname Jaurigui in his Objections, so the Court adopts that spelling for its Memorandum Opinion and Order.
PROCEDURAL BACKGROUND
Jaurigui entered a Plea Agreement on May 22, 2019. See Plea Agreement, filed May 22, 2019 (Doc. 29). The United States Probation Office ("USPO") filed a Presentence Investigation Report, filed August 15, 2019 (Doc. 33)("PSR"). Jaurigui filed his sentencing Objections on December 5, 2019. See Objections at 1.
1. Presentence Investigation Report.
The USPO filed the PSR on August 15, 2019. See PSR at 1. In the PSR, the USPO states that Jaurigui "is a career offender; therefore the criminal history category is VI." PSR ¶ 48, at 10 (citing U.S.S.G. § 4B1.1(b) ). The USPO describes the dispositions in Jaurigui's prior three criminal cases. See PSR at 8-10. In the first criminal case, Jaurigui was charged with Aggravated Assault (Deadly Weapon). See PSR ¶¶ 41-44, at 8-9. In his second criminal case, Jaurigui was charged with Child Abuse (Intentionally Caused)(No Death or Great Bodily Harm). See PSR ¶ 43, at 9. In May, 2013, he was granted a conditional discharge, a deferred sentence of eighteen months for this first conviction, a deferred sentence of three years for his second conviction, and five years total probation for both convictions. See PSR ¶ 43, at 9. His deferred sentence was to "run consecutive for 7½ years." PSR ¶ 43, at 9. On August 20, 2014, his conditional discharge was revoked, and his deferred sentence and probation were reinstated. See PSR ¶ 43, at 9. On September 9, 2015, his probation was revoked and then reinstated. See PSR ¶ 43, at 9. In his third criminal case, he was charged with Trafficking (by Possession with Intent to Distribute Methamphetamine). See PSR ¶ 44, at 10. This third conviction resulted in a suspended sentence of nine years imprisonment, and five years of probation to run concurrent to the disposition in his first two criminal cases. See PSR ¶ 44, at 10.
The USPO recommends that Jaurigui pay $500.00 for community restitution. See PSR ¶ 85, at 17. In making its suggestion for community restitution, the USPO references the drug-trafficking nature of this case and Jaurigui's "prior record." PSR ¶ 85, at 16. Additionally, the USPO states in its Attachment A -- the Bruce Memo -- to the Presentence Report that Jaurigui "must complete 50 hours of community service." Attachment A to the Presentence Report at 3, filed August 15, 2019 (Doc. 33-1). 2. Objections.
In the District of New Mexico, the USPO prepares and delivers a Bruce Memo, named after the United States Court of Appeals for the Tenth Circuit's case of United States v. Bruce, 458 F.3d 1157 (10th Cir. 2006), before sentencing and before violations hearings. The Bruce Memo lists all conditions -- mandatory, standard, and special -- that the Court is thinking of imposing, so the parties know in advance what the Court is considering and can prepare. See United States v. Archuleta, No. CR 14-0922 JB, 2017 WL 2297129, at *26 (D.N.M. April 24, 2017) (Browning, J.)
Jaurigui makes three Objections to the PSR. See Objections at 1, 5. Jaurigui first objects to the USPO's identification of Jaurigui as a "career offender." Objections at 1 (citing PSR ¶ 48, at 10)("The defendant is a career offender; therefore the criminal history category is VI. U.S.S.G. § 4B1.1(B)."). Jaurigui disputes the "career offender" characterization, because he argues that his criminal history does not meet the criteria to be a "career offender." Objections at 2. He notes that the Sentencing Guidelines state that a career offender must have "at least two prior felony convictions," which must be either drug-related or a crime of violence, after the age of 18. Objections at 2 (quoting U.S.S.G § 4B1.1 ). Jaurigui points out that the Application Notes define " ‘two prior felony convictions’ " to require that the sentences for each conviction " ‘are counted separately under the provisions of 4A1.1(a), (b), or (c).’ " Objections at 2 (quoting Application Note (1)). Jaurigui explains that U.S.S.G. § 4A1.1.(a), (b), and (c) direct the reader to U.S.S.G. § 4A1.2(a) for the definition of " ‘prior sentence,’ " which it defines as " ‘any sentence previously imposed upon adjudication of guilty [sic], whether by guilty plea trial, or plea of nolo contendre.’ " Objections at 2 (quoting U.S.S.G. § 4A1.2(a) (emphasis added in Objections at 2)). Jaurigui argues that, because he entered a consolidated guilty plea agreement in the first two cases, which deferred further proceedings " ‘without adjudication of guilty [sic],’ " that no adjudication of guilt was ever entered for these cases. Objections at 2 (quoting Order of Conditional Discharge, Case No. D-202-CR-201302041 (filed May 21, 2013, County of Bernalillo, 2d Judicial District, New Mexico)). Jaurigui concludes that, because only one of his prior cases resulted in an adjudication of guilt, he does not qualify as a "career offender."
Jaurigui further argues that the dispositions in his first two criminal cases are excluded from Sentencing Guidelines calculations under U.S.S.G. § 4A1.2(f). See Objections at 3 (quoting U.S.S.G. § 4A1.2(f) )("Diversion from the judicial process without a finding of guilt (e.g., deferred prosecution) is not counted."). Jaurigui clarifies that the Sentencing Guidelines distinguish a sentence based on a finding or admission of guilt from a sentence not based on a finding or admission of guilt. See Objections at 4. Jaurigui explains that he did not enter a guilty plea, but rather a plea pursuant to Alford, which " ‘is not an express or implied admission of factual guilt.’ " Objections at 4 (quoting Kipnis v. Jusbasche, 2017-NMSC-006, ¶ 15, 388 P.3d 654 (2016) ). He argues that, because "the deferment of [his] criminal proceedings was specifically premised on [ ] not admitting guilt, the Court not finding guilt, and the Court not adjudicating guilt," his first two criminal cases resulted in "diversionary dispositions properly excluded from an assessment of criminal history or career offender status." Objections at 4-5.
Jaurigui next objects to paying $500.00 in community restitution. See Objections at 5. Jaurigui argues that, because he is indigent, paying the community restitution "would be an incredible hardship," and he suggests that money is better spent on his son and parents. See Objections at 5-6. He also rejects the suggestion that he perform fifty hours of community service during supervised release, because the suggestion is "just not reasonable." Objections at 6.
3. Addendum to the Presentence Report.
The USPO submitted an Addendum to the Presentence Report, filed Dec. 10, 2019 (Doc. 39)("Addendum"). The USPO lists Jaurigui's three Objections: (i) his Objection to identifying Jaurigui as a career offender; (ii) his Objection to ordering Jaurigui to pay $500.00 in community restitution; and (iii) his Objection to ordering Jaurigui to perform 50 hours of community service. See Addendum at 1-2. In response to the first Objection, the USPO argues that the Sentencing Guidelines state that U.S.S.G. § 4A1.2's provisions apply to convictions under U.S.S.G. § 4B1.2. See Addendum at 1. The USPO further argues that the conditional discharge cases should count, because (i) Jaurigui pled guilty in those cases; and (ii) the New Mexico Second Judicial Court revoked his conditional discharge on August 20, 2014. See Addendum at 2. The USPO argues that, moreover, U.S.S.G. § 4A1.2's Application Note 9 includes diversionary dispositions if the defendant admitted guilt or the court determined guilt, and that, therefore, Jaurigui's guilty pleas render his convictions "countable." Addendum at 1.
The USPO responds to the community restitution Objection by reiterating the crime's drug-related nature. See Addendum at 2. The USPO acknowledges that it has considered Jaurigui's financial situation, but it finds that the public harm outweighs Jaurigui's financial situation. See Addendum at 1. The USPO, therefore, still recommends community restitution. See Addendum at 1.
LAW REGARDING CAREER OFFENDERS
The Sentencing Guidelines authorize an increase in the criminal history category if the defendant is identified as a "career offender." United States v. Thyberg, No. 10-196 JAP, 2016 WL 8914537, at *2 (D.N.M. Oct. 6, 2016) (Parker, J.), report and recommendation adopted, No. 10-196 JAP, 2016 WL 8919405 (D.N.M. Dec. 5, 2016). The Sentencing Guidelines provide:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. The Sentencing Guidelines define "two prior felony convictions" as
(c) The term "two prior felony convictions" means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere.
U.S.S.G. § 4B1.2 (bold in original). The Sentencing Guidelines further state that "a diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding." Application Note 3 to U.S.S.G. § 4A1.1. The conditional discharge statute requires a defendant to be "found guilty" before a conditional discharge can be granted. N.M. Stat. Ann. § 31-20-13(A). See United States v. Ornelas-Yanez, 77 F. Supp. 3d 1083, 1106 (D.N.M. Dec. 9, 2014) (Browning, J.)(noting that the New Mexico discharge statute requires a finding of guilt).
LAW REGARDING ALFORD PLEAS
When a defendant enters a plea pursuant to Alford, the defendant maintains his innocence while agreeing to be sentenced as if he were guilty. See United States v. Martinez, 30 F. App'x 900, 905 (10th Cir. 2002) (unpublished) (citing North Carolina v. Alford, 400 U.S. at 25, 91 S.Ct. 160 ); United States v. Cartwright, 678 F.3d 907, 917 n.3 (10th Cir. 2012). Although an Alford plea allows the defendant to maintain his innocence, an Alford plea is still "an ‘adjudication of guilt’ under § 4A1.2(e)(1) and therefore can properly be counted as a prior sentence under the USSG." United States v. Martinez, 30 F. App'x at 905.
United States v. Martinez is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("Unpublished decisions are not precedential, but may be cited for their persuasive value."). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... And we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court finds that United States v. Martinez and United States v. Bloomgren have persuasive value with respect to a material issue and will assist the Court in its disposition of this Memorandum Opinion.
LAW REGARDING COMMUNITY RESTITUTION
18 U.S.C. § 3663(c) "authorizes" courts to impose community restitution when the defendant's crime has no discernable victim. See United States v. Bloomgren, 42 F. App'x 147, 152 (10th Cir. 2002) (unpublished). The Sentencing Guidelines guide the courts in imposing community restitution:
(d) In a case where there is no identifiable victim and the defendant was convicted under 21 U.S.C. § 841, § 848(a), § 849, § 856, § 861, or § 863, the court, taking into consideration the amount of public harm caused by the offense and other relevant factors, shall order an amount of community restitution not to exceed the fine imposed under § 5E1.2.
U.S.S.G. § 5E1.1 (bold in original). "If there is no fine imposed, there can be no community restitution imposed." Catharine M. Goodwin, Jay E. Grenig, & Nathan A. Fishbach, Federal Criminal Restitution at § 4:20 (West 2009)("Federal Criminal Restitution").
ANALYSIS
The Court overrules Jaurigui's Objection to his classification as a "career offender." Jaurigui argues that, because his consolidated guilty plea was an Alford plea with an adjudication of guilt, the dispositions in his first two criminal cases are not "countable" for the purposes of calculating his criminal history. Objections at 2. The United States Court of Appeals for the Tenth Circuit has concluded that an Alford pleas is an adjudication of guilt under U.S.S.G. § 4A1.2(e)(1), and thus, the Court may include these pleas in its calculation. The Court, which the Tenth Circuit binds, therefore counts Jaurigui's Alford pleas and classifies him as a career offender under U.S.S.G. § 4B1.1(b). See United States v. Martinez, 30 F. App'x at 905.
Jaurigui argues that, because he was not adjudicated guilty in Second Judicial District Court consolidated cases D-202-CR-2012-04193 and D-202-CR-203-02041, the Court should not consider these consolidated cases as a prior sentence when calculating his criminal history. The PSR added 1 criminal history point pursuant to U.S.S.G. § 4A1.1(c), which states that 1 point should be added "for each prior sentence not counted in" subsections (a) and (b). U.S.S.G. § 4A1.1(c). See PSR at 8. A prior sentence is defined as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere , for conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). Concerning deferred adjudications, and other diversionary dispositions, the Sentencing Guidelines state:
Jaurigui states that the "period of deferment was completed without revocation of the Conditional Discharge, and an Order of Discharge was issued on July 20, 2018." Objections at 3. The Court takes judicial notice that the State Court revoked his conditional discharge on August 20, 2014. State of New Mexico v. Daniel Jaurigui, Case No. D-202-CR-201302041 (filed May 21, 2013, County of Bernalillo, 2d Judicial District, New Mexico), available at https://caselookup.nmcourts.gov/caselookup/app?component=cnLink& page=SearchResults& service=direct& session=T& sp=SD-202-CR-201302041 (last visited January 25, 2019).
Diversion from the judicial process without a finding of guilt (e.g. , deferred prosecution) is not counted. A diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere , in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered, except that diversion from juvenile court is not counted.
U.S.S.G. § 4A1.2(f). Accordingly, a deferred adjudication process that does not require a finding of guilt is not a prior sentence for § 4A1.1(c) purposes, while a deferred adjudication process that involves a finding of guilt is. See U.S.S.G. § 4A1.2(f). The Sentencing Guidelines' Application Notes provide the reasoning for this distinction. See U.S.S.G. § 4A1.2 Application Note 9. " Section 4A1.2(f) requires counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court. This reflects a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency." U.S.S.G. § 4A1.2 Application Note 9.
In New Mexico, courts can grant a conditional discharge without adjudication pursuant to N.M. Stat. Ann. § 31-20-13. Section 31-20-13 provides:
A. When a person who has not been previously convicted of a felony offense is found guilty of a crime for which a deferred or suspended sentence is authorized, the court may, without entering an adjudication of guilt, enter a conditional discharge order and place the person on probation on terms and conditions authorized by Sections 31-20-5 and 31-20-6 NMSA 1978. A conditional discharge order may only be made available once with respect to any person.
B. If the person violates any of the conditions of probation, the court may enter an adjudication of guilt and proceed as otherwise provided by law.
C. The court shall not enter a conditional discharge order for a person found guilty of driving a motor vehicle while under the influence of intoxicating liquor or drugs, pursuant to the provisions of Section 66-8-102 NMSA 1978.
The deferred adjudication, under which Jaurigui was granted a conditional discharge, requires a finding of guilt. See N.M. Stat. Ann. § 31-20-13(a) ("When a person who has not been previously convicted of a felony offense is found guilty of a crime for which a deferred or suspended sentence is authorized, the court may, without entering an adjudication of guilt, enter a conditional discharge order and place the person on probation...." (emphasis added)). Additionally, Jaurigui pled guilty in that case. See Objections at 3 ("A consolidated Plea and Disposition Agreement was entered in both cases on May 2, 2013. That agreement states, ‘The defendant agrees to plead guilty pursuant to North Carolina v. Alfred .’ ")(misspelling in original Plea and Disposition). Although, according to Jaurigui, the State Court did not enter an adjudication of guilt, the statute permits conditional discharges when the person " is found guilty of a crime," N.M. Stat. Ann. § 31-20-13(a), and Jaurigui entered a guilty plea. Objections at 2-3. Jaurigui's conditional discharge, thus, resulted from a finding of guilt. See U.S.S.G. § 4A1.2(f). Jaurigui's May 9, 2013, conviction is, therefore, considered to be a prior sentence for § 4A1.1(c) purposes. See United States v. Ornelas-Yanez, 77 F. Supp. 3d at 1106.
The Court sustains Jaurigui's Objection to the imposition of community restitution. While the Sentencing Guidelines state that a court "shall" impose a community restitution payment when there is no discernable crime victim, the Court follows other courts and scholars in construing "shall" as "may" and, therefore, the USPO's recommendation does not bind the Court. See U.S.S.G. § 5E1.1 ; Federal Criminal Restitution ("If there is no fine imposed, there can be no community restitution imposed."). Courts are limited in when they can impose community restitution, and "[a]s a consequence of those [limiting qualifications], community restitution is infrequently imposed, even though the implementing Guideline provides that the court ‘shall’ impose it." Federal Criminal Restitution at § 4.20 (quoting U.S.S.G. § 5E1.1(d) ). This Court has found the imposition of restitution optional. See, e.g., United States v. Duran, No. CR 15-1504 JB, 2016 WL 5395276, at *1 (D.N.M. Aug. 8, 2016) (Browning, J.)(stating that, although the USPO suggested the Court impose a $500.00 community restitution, the Court "will determine if it will impose such restitution when it announces the sentence"). See also 18 U.S.C. § 3663(c)(1) ("[W]hen sentencing a defendant convicted of an offense described in [ ] 21 U.S.C. 841, 848(a), 849, 856, 861, 863 [ ], in which there is no identifiable victim, the court may order that the defendant may make restitution."); Federal Criminal Restitution at § 4.20 (categorizing community restitution as a form of "discretionary restitution"). The Court declines to impose the $500.00 community restitution.
See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) ("Though ‘shall’ generally means ‘must,’ legal writers sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may.’ See D. Mellinkoff, Mellinkoff's Dictionary of American Legal Usage 402-403 (1992)(‘shall’ and ‘may’ are ‘frequently treated as synonyms’ and their meaning depends on context."); B. Garner, Dictionary of Modern Legal Usage 939 (2d ed. 1995)(‘[C]ourts in virtually every English-speaking jurisdiction have held -- by necessity -- that shall means may in some contexts, and vice versa.’ ")); Great Divide Wind Farm 2 LLC v. Aguilar, 414 F.Supp.3d 1369, 1409–10, (D.N.M. 2019) (Browning, J.)
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Moreover, the text's plain language does not permit the Court to impose a community restitution if the Court is not imposing a fine under U.S.S.G. § 5E1.2. See U.S.S.G. § 5E1.1(d) (permitting the Court, in certain cases, to order community restitution "not to exceed the fine imposed under § 5E1.2 ); Federal Criminal Restitution at § 4.20 ("If there is no fine imposed, there can be no community restitution imposed."). In this case, the Court is not imposing a fine, nor is the United States even requesting the imposition of a fine. See PSR ¶ 67, at 14 ("Based on the defendant's financial condition, it appears a fine is not feasible."). The Court cannot impose community restitution that exceeds the imposed fine, and so if the imposed fine is $0.00, the Court cannot impose a fine that exceeds $0.00. The Court, thus, declines to impose community restitution in the absence of a fine.
The Court has weighed Jaurigui's financial situation, his other financial commitments to supporting his child and taking care of his parents, and the likelihood that he will be able to pay community restitution immediately or soon after release. See United States v. Clark, 901 F.2d 855, 857 (10th Cir. 1990) (a district court's restitution order was improper when "nothing before the district court suggested [the defendant] could pay this amount of restitution immediately."). Accordingly, the Court has concluded that the $500.00 community restitution is unreasonable.
IT IS ORDERED that the Objections in the Defendant's Sealed Objections and Sentencing Memorandum, filed December 5, 2019 (Doc. 38), are overruled in part as to Defendant Daniel Jaurigui's objection to the career-offender Objection and sustained in part as to Jaurigui's Objection to the community restitution request.