Opinion
Case Number: 1:10CR00052-002JB, USM Number: 48890-051.
January 10, 2011
Defense Attorney: Charles Fisher, Appointed.
Judgment in a Criminal Case (For Offenses Committed On or After November 1, 1987)
THE DEFENDANT:
1 of Indictment
[X] pleaded guilty to count(s) [] pleaded nolo contendere to count(s) which was accepted by the court. [] 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) 21 U.S.C. Sec. 841 21 U.S.C. Sec. Conspiracy to Violate (b)(1)(C) 12/10/2009 1 846 The defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. s 2 through 4 of Indictment [] 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. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. December 9, 2010 James O. Browning ___________________________________________________ Date of Imposition of Judgment /s/ ___________________________________________________ Signature of JudgeIMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 232 days or time served, whichever is less. The Court incorporates its Memorandum Opinion and Order in United States v. Nieto, filed January 5, 2011 (Doc. 71). On December 10, 2009, Defendant Timothy Nieto was arrested during an undercover transaction for his involvement in distributing oxycodone. See Presentence Investigation Report ¶¶ 6-14, at 4-5 (re-disclosed August 26, 2010) ("PSR"). Nieto is twenty years old. See id. at 1. Nieto had never previously been confined. Nieto explains that his "need for oxycodone led to [him] agreeing to take part in [the offense], not to make money but to get oxycodone to feed [his] addiction." Id. ¶ 17, at 6. At the time of his arrest, Nieto's mother, Sherry Gammon, was making inquiries about treatment programs. See id. ¶ 17, at 6. There being no objections to the PSR, the Court adopts the USPO's guideline calculations in the PSR as its own. Pursuant to rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the Court accepts the plea agreement, which stipulates to a 3-level downward adjustment for acceptance of responsibility. The Court also grants a 2-level reduction to the offense level, because Nieto has debriefed with the Assistant United States Attorney, which made him eligible for a "safety valve" reduction. After the 5-level reduction, Nieto's offense level is 15 and the criminal history category is I, establishing an imprisonment range of 18 to 24 months. The Court has carefully considered the Guidelines and 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. After a careful consideration of the circumstances in this case, and after Nieto's acceptance of responsibility and because of his amenability to treatment in the past few months, the Court believes that the punishment which is set forth in the guidelines is not appropriate for Nieto's offense. The Court finds that the factors in 18 U.S.C. § 3553(a) support a variance. Nieto's mental condition made him susceptible to an addiction, and Nieto committed crimes because of his addiction. Nieto has accepted responsibility, has a good prognosis for recovery if he completes a treatment program, and is seeking treatment. Moreover, Nieto is young and his record lacks prior convictions. Furthermore, the Court believes that a sentence of incarceration is greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553(a). The Court has considered the kinds of sentences and ranges that the guidelines establish, and the alternatives that are available, and the Court has concluded that a sentence of 232 days, or time served, whichever is less, reflects the seriousness of this offense, adequately promotes respect for the law, and provides just punishment. The Court believes that a time-served sentence provides adequate deterrence, because Nieto has not served any time in prison before this offense. This first-time incarceration may be enough. The Court believes that the sentence will adequately protect the public because of the conditions of supervised release it will impose. The Court believes that a sentence of time-served and three years supervised release, with conditions that Nieto reside in and complete a community corrections program at a residential reentry center, Diersen Charities, for six months, and that Nieto participate in a substance abuse and mental health program, effectively and fully reflects each of the factors embodied in 18 U.S.C. § 3553(a), and provides Nieto with needed education, training, and care to overcome problems that he faced in the past and to complete the road to recovery. And while the Court's task as a trial court is not to come up with a reasonable sentence, but to balance the 18 U.S.C. § 3553(a) factors correctly, see United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007) ("[A] district court's job is not to impose a reasonable sentence. Rather, a district court's mandate is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of section 3553(a)(2).") (citation omitted), the Court believes that this sentence balances the factors in 18 U.S.C. § 3553(a) more appropriately than a guideline sentence of 18 to 24 months, and is a more reasonable sentence. The Court concludes that this sentence is sufficient without being grater than necessary to comply with the purposes set forth in the Sentencing Reform Act. [] The court makes the following recommendations to the Bureau of Prisons: [X] The defendant is remanded to the custody of the United States Marshal. [] The defendant shall surrender to the United States Marshal for this district: [] at on [] as notified by the United States Marshal. [] The defendant shall 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 Services Office.RETURN
I have executed this judgment as follows:Defendant delivered on ________________________________________________________________ to _____________________________________ at ______________________________ with a Certified copy of this judgment.
___________________________________________________ UNITED STATES MARSHAL By ___________________________________________________ DEPUTY UNITED STATES MARSHALSUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of 3 years.The defendant must 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 unlawfully possess a controlled substance.
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 determined by the court. 42 U.S.C. § 16901
[] The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) [X] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable). [] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable). [] The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable) [X] The defendant shall participate in an approved program for domestic violence. (Check, if applicable) If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Criminal Monetary Penalties sheet of this judgment.The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
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 work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; 6) the defendant shall notify the probation officer at least 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; and 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 or characteristics 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 participate in and successfully complete a substance abuse treatment program which may include drug testing, outpatient counseling, or residential placement. 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 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 contraband and illegal drugs 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 mental health treatment program, which may include outpatient counseling, residential placement, 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.The defendant shall have no contact with the co-defendant in this case.
The defendant shall reside at and complete a program at a Residential Re-Entry Center, Diersen Charities, for a period of 6 months as approved by the probation officer.CRIMINAL MONETARY PENALTIES
The defendant must 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.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.