United States v. Jim
2012 WL 2574807
D.N.M.2012Background
- Jim was convicted in 2010-2011 of DWI and related offenses; Doe was raped by Jim on Aug. 12-13, 2010 after meeting her at her home.
- Jim was arrested Aug. 30, 2011 for the sexual assault; a superseding indictment charged two counts under 18 U.S.C. §§ 1153, 2241, 2246.
- Jim pled guilty Feb. 8, 2011 to the original indictment; later moved to withdraw his plea and proceeded to trial in January 2012.
- Trial from Jan. 10-13, 2012 resulted in guilty verdicts on both counts; PSR disclosed March 9, 2012 assigned base offense level 30 with multiple enhancements.
- USPO Addendum and Second Addendum addressed upgrades; May 16, 2012 sentencing imposed 360 months, rejecting a lifetime sentence and declining downward departure.
- Court adopted PSR findings and rejected most objections, concluding trial credibility supported the government’s version and denying a variance below the guideline range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether serious bodily injury enhancement applies | USA argues severe bodily harm existed; strengthens with bruises, lacerations, pain. | Jim argues injuries were not extreme; enhancement should not apply. | Court overruled USPO/USA on the enhancement; declined to apply 2-level increase. |
| Whether PSR factuals should be modified | USA and USPO contend factuals supported by trial and records. | Jim contends paragraphs 8-33 misstate testimony; objections are not specific. | Court sustained objections to some factual recitations; otherwise overriden; added position paragraph as moot. |
| Criminal history category dispute | No downward departure; category II appropriate. | History over-represents seriousness; wants Category I." | Court denied downward departure and maintained II; no substantial over-representation. |
| Whether to depart downward under 4A1.3 | Jim argues history overstated; seeks departure. | DWI and related conduct justify II; no substantial over-representation. | Court declined to depart downward under 4A1.3. |
| Whether Court should vary downward to 5-year sentence | USA urges within guideline range; not favorable to variance. | Jim seeks five-year sentence. | Court refused variance; sentenced to 360 months. |
Key Cases Cited
- United States v. Talk, 13 F.3d 369, 13 F.3d 369 (10th Cir. 1993) (mandatory 4-level upshift for § 2241 conviction in Talk circuit read)
- United States v. Peshlakai, 618 F. Supp. 2d 1295, 618 F. Supp. 2d 1295 (D. N.M. 2007) (court narrowly interpreted § 2A3.1(b)(4) for injuries separate from sexual abuse)
- United States v. Martin, 528 F.3d 746, 528 F.3d 746 (10th Cir. 2008) (beating into submission falls within 2A3.1(b)(4) when injury results from force to procure sex)
- United States v. Wicks, 995 F.2d 964, 995 F.2d 964 (10th Cir. 1993) (presumption of regularity; burden on defendant to prove constitutionally infirm prior convictions)
- United States v. Cruz-Alcala, 338 F.3d 1194, 338 F.3d 1194 (10th Cir. 2003) (overcoming presumption of regularity requires proof of constitutional infirmity; defer to district credibility findings)
- Parke v. Raley, 506 U.S. 20, 506 U.S. 20 (Supreme Court 1992) (presumption of regularity for final judgments; burden on defendant to prove defects)