Opinion
Case Number: 1:08CR01419-001JB, USM Number: 40771-051.
August 31, 2010
Defense Attorney: Ben Gonzales, Appointed.
Judgment in a Criminal Case (For Offenses Committed On or After November 1, 1987)
THE DEFENDANT:
2 of Indictment
[X] pleaded guilty to count(s) [] pleaded nolo contendere to count(s) [] after a plea of not guilty was found guilty on count(s) The defendant is adjudicated guilty of these offenses: Title and Section Nature of Offense Offense Ended Count Number(s) 18 U.S.C. Sec. Felon in Possession of a Firearm and Ammunition 01/10/2008 2 922(g)(1), 18 U.S.C. Sec. 924(a)(2) The defendant is sentenced as specified in pages 2 through 6 of this judgment. The sentence is imposed under the Sentencing Reform Act of 1984. 1 and 3 [] The defendant has been found not guilty on count. [X] Count are dismissed on the motion of the United States. IT IS FURTHER ORDERED that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. Bernalillo July 29, 2010 /s/ James O. Browning County of Residence Date of Imposition of Judgment Signature of JudgeIMPRISONMENT
The defendant is committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 100 months. The Court incorporates its Memorandum Opinion and Order in United States v. Sedillo, CR 08-1419 (D.N.M.), filed August 31, 2010 (Doc. 52). Sedillo's offense level is 27 and his criminal history category is V, establishing a guideline imprisonment range of 120 to 150 months. The guideline imprisonment sentence, however, pursuant to U.S.S.G. § 5G1.1(b), is 120 months, because the maximum term of imprisonment for a conviction of 18 U.S.C. § 922(g)(1) and 924(a)(2) is ten years or 120 months. The Court has carefully considered the guidelines and has considered other sentencing goals. Specifically, the Court has considered the guideline sentencing range established for the applicable category of offense committed by the applicable category of defendant, and the Court believes, after careful consideration of the briefing and the circumstances in this case, that the punishment set forth in the guidelines is not appropriate for this offense. The Court has then considered the kinds of sentences and ranges established by the guidelines. The details are not clear as to the level of drug trafficking, if any, in which Sedillo was engaged. He was found with $447.00 in cash, a digital scale, and .9 grams of heroin wrapped in five small aluminum-foil balls in his vehicle, and he had a sawed-off shotgun in his home. The evidence suggests, however, that Sedillo is primarily a heroin user and that he finances his use by selling heroin at a small-scale retail level. Sedillo is not engaged in large-scale drug trafficking. The 4-level increase Sedillo received for having ammunition or a firearm in close proximity to drugs is an enhancement primarily aimed at defendants using firearms in the commission of another offense, such as drug trafficking, but not so much in connection with drug possession or drug use. While the USPO correctly applied the guidelines, the Court believes it is appropriate to exercise its discretion to take Sedillo's circumstances into account, and thus the Court will treat the enhancement for purposes of sentencing more like a 2-level enhancement, rather than a 4-level enhancement, to reflect that it does not appear Sedillo was engaged in large-scale drug trafficking. Treating his offense level as one with a 2-level enhancement, an offense level of 25 and a criminal history category of V results in a guideline imprisonment range of 100 to 125 months. The Court concludes that a sentence of 100 months is an appropriate sentence in this case. The Court is concerned about Sedillo's criminal history, and a sentence of 100 months, which is still a lengthy sentence, reflects the seriousness of Sedillo's offense and is sufficient to promote respect for the law. The sentence is sufficient to provide adequate deterrence, and the variance to a sentence of 100 months is a more just sentence, while still protecting the public. In the end, the Court finds that a sentence of 100 months fully and effectively reflects each of the factors set forth in 18 U.S.C. § 3553(a). While the Court's task, as a district court, is not to arrive at a reasonable sentence — it is to come up with one that reflects the factors in 18 U.S.C. § 3553(a), see United States v. Martinez-Barragan, 545 F.3d 894, 904-05 (10th Cir. 2008) ("A sentence is substantively reasonable when the length of the sentence reflects the gravity of the crime and the § 3553(a) factors as applied to the case.") — this sentence is more reasonable than one within the guidelines. Finally, the Court believes a sentence of 100 months is sufficient without being greater than necessary to comply with the purposes of punishment set forth in the Sentencing Reform Act. The Court recommends FCI Sheridan, Sheridan, OR, if eligible. The Court recommends the defendant participate in the Bureau of Prisons 500 hour drug and alcohol treatment program. [X] The court makes these recommendations to the Bureau of Prisons: [X] The defendant is remanded to the custody of the United States Marshal. [] The defendant must surrender to the United States Marshal for this district: [] at on [] as notified by the United States Marshal. [] The defendant must surrender for service of sentence at the institution designated by the Bureau of Prisons: [] before 2 p.m. on [] as notified by the United States Marshal [] as notified by the Probation or Pretrial Service Office.RETURN
I have executed this judgment by:Defendant delivered on _________________________________________________ to _____________________________ at ____________________ with a Certified copy of this judgment.
___________________________________________ UNITED STATES MARSHAL ___________________________________________ Deputy United States MarshalSUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of 3 years.The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state, or local crime. The defendant shall not illegally possess a controlled substance.
For offenses committed on or after September 13, 1994:
The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as directed by the probation officer.
[] The above drug testing condition is suspended based on the courts determination that the defendant possesses a low risk of future substance abuse. (Check, if applicable.) [X] The defendant shall not possess a firearm, ammunition, destructive device, or any dangerous weapon. (Check, if applicable). [X] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable). [] The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable) [] The defendant shall participate in an approved program for domestic violence. (Check, if applicable) If this judgment imposes a fine or a restitution obligation, it shall be a condition of probation that the defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervised release in accordance with the Schedule of Payments set forth in the Criminal Monetary Penalties sheet of this judgment.The defendant shall comply with the standard conditions that have been adopted by this court (set forth below). The defendant shall also comply with the additional conditions on the attached page (if indicated below).
STANDARD CONDITIONS OF SUPERVISION
1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall obtain and maintain full time, legitimate employment, or attend a vocational or academic training program throughout the term of supervised release as directed by the probation officer; 6) the defendant shall notify the probation officer ten days prior to any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; 8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; 13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement;SPECIAL CONDITIONS OF SUPERVISION
The defendant shall not possess, have under his control, or have access to any firearm, ammunition, explosive device, or other dangerous weapons, as defined by federal, state, or local law.The defendant must submit to a search of his person, property, or automobile under his control to be conducted in a reasonable manner and at a reasonable time, for the purpose of detecting drugs, alcohol, weapons, or any contraband at the direction of the probation officer. He must inform any residents that the premises may be subject to a search.
The defendant must refrain from the use and possession of alcohol and other forms of intoxicants. He must not frequent places where alcohol is the primary item for sale.The defendant must participate in and successfully complete a substance abuse treatment program which may include drug testing and outpatient counseling. The defendant is prohibited from obstructing or attempting to obstruct or tamper, in any fashion, with the collection, efficiency and accuracy of any substance testing device or procedure. The defendant may be required to pay a portion of the cost of treatment and/or drug testing as determined by the Probation Office.
The defendant must participate in and successfully complete a mental health treatment program, which may include outpatient counseling or prescribed medication as approved by the probation officer. The defendant may be required to pay a portion of the cost of this treatment as determined by the Probation Office.CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal monetary penalties in accordance with the schedule of payments. Assessment Fine Restitution $100.00 $0.00 $0.00 [] The Court hereby remits the defendant's Special Penalty Assessment; the fee is waived and no payment is required. Totals:SCHEDULE OF PAYMENTS
Payments shall be applied in the following order (1) assessment; (2) restitution; (3) fine principal; (4) cost of prosecution; (5) interest; (6) penalties.Payment of the total fine and other criminal monetary penalties shall be due as follows:
The defendant will receive credit for all payments previously made toward any criminal monetary penalties imposed.
A [X] In full immediately; or B [] $ immediately, balance due (see special instructions regarding payment of criminal monetary penalties). Special instructions regarding the payment of criminal monetary penalties: Criminal monetary penalties are to be made payable by cashier's check, bank or postal money order to the U.S. District Court Clerk, 333 Lomas Blvd. NW, Albuquerque, New Mexico 87102 unless otherwise noted by the court. Payments must include defendant's name, current address, case number and type of payment.Consistent with a stipulation in the Plea Agreement, the Defendant forfeits his rights, title, and interest to the items listed in paragraph 8 of the Plea Agreement.
Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment, payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary penalty payments, except those payments made through the Bureau of Prisons' Inmate Financial Responsibility Program, are to be made as directed by the court, the probation officer, or the United States attorney.