IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

vs.

No. CR 15-4269 JB

DAVID CALBERT,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant’s Sentencing Memorandum

with Objections to Presentence Investigation Report, filed August 13,

2019

(Doc. 239)(“Objections”). The primary issues are: (i) whether Defendant David Calbert’s assault

on Paul Silva with a deadly weapon was an attempt to commit first-degree murder such that

§ 2A2.1(a)(1) of the United States Sentencing Guidelines Manual (U.S. Sentencing Comm’n

2018)(“U.S.S.G.” or “Guidelines”)1 applies, establishing a base offense level of 33; (ii) whether

1The Supreme Court of the United States of America held in Peugh v. United States, 569

U.S. 530 (2013):

District courts must begin their sentencing analysis with the Guidelines in effect at the time of the offense and use them to calculate the sentencing range correctly; and those Guidelines will anchor both the district court’s discretion and the appellate review process in all of the ways we have described. The newer Guidelines, meanwhile, will have the status of one of many reasons a district court might give for deviating from the older Guidelines, a status that is simply not equivalent for ex post facto purposes.

569 U.S. at 549 (emphasis in original). The 2018 Guidelines Manual provides, however, that “[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced” unless doing so “would violate the ex post facto clause of the United States Constitution,” in which case “the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” U.S.S.G. § 1B1.11(a)-(b)(1). Calbert conspired to murder Paul Silva and intentionally assaulted Silva with a dangerous weapon in March, 2011, see Indictment at 8-9, filed

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Silva sustained permanent or life-threatening bodily injury as a result of the assault, warranting a

4-level enhancement under U.S.S.G. § 2A2.1(b)(1)(A); (iii) whether the assault “involved the

offer or the receipt of anything of pecuniary value for undertaking the murder,” U.S.S.G.

§ 2A2.1(b)(2), warranting the 4-level enhancement under U.S.S.G. § 2A2.1(b)(2); and

(iv) whether Silva was physically restrained during the assault, warranting the 2-level

enhancement under U.S.S.G. § 3A1.3. The Court held a sentencing hearing on August 16, 2019.

The Court notes that Calbert based his Objections on the original Presentence Investigation Report,

filed February 11, 2019 (Doc. 219)(“Original PSR”). The United States Probation Office

(“USPO”) has subsequently provided a revised Presentence Investigation Report, filed August 9,

2019 (Doc. 235)(“Revised PSR”), which removes the 4-level enhancement under U.S.S.G.

§ 2A2.1(b)(2) from its offense-level calculation, because “it was determined the offense was not

committed for pecuniary gain.” Revised PSR at 1.2 The offense-level calculation has not

otherwise changed. Compare Original PSR at 10-11 with Revised PSR at 11-12. The Court will

base its Guidelines calculation analysis on the Revised PSR. Accordingly, the Court concludes

that: (i) Calbert’s assault on Silva with a deadly weapon constitutes an attempt to commit first-

degree murder, so the Court overrules Calbert’s Objection to the application of U.S.S.G.

§ 2A2.1(a)(1); (ii) Silva sustained a life-threatening bodily injury from the assault, so the Court

December 1, 2015 (Doc. 2), so the 2010 Guidelines Manual, effective November 1, 2010, would apply to both offenses if the Court does not use the current Guidelines Manual, see U.S.S.G. § 1B1.11(b)(3). Using the 2010 Guidelines Manual does not change the result here. See U.S.S.G. § 1B1.11(b)(1). Accordingly, the Court uses the 2018 Guidelines Manual.

2When citing to the Revised PSR, the Court cites to the page number at the top of the document, which are provided when the document was filed with the electronic filing system, and not the page numbers at the bottom of the document, which the document itself provides.

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overrules Calbert’s Objection to the application of U.S.S.G. § 2A2.1(b)(1)(A); (iii) because the

Revised PSR did not apply U.S.S.G. § 2A2.1(b)(2) and the assault was not committed for

pecuniary gain, Calbert’s Objection to its application is moot and the Court overrules it; and

(iv) Silva was physically restrained in the course of the assault, so the Court overrules Calbert’s

Objection to the application of U.S.S.G. § 3A1.3.

On September 28, 2017, Calbert pled guilty to Count 1 of the Indictment, filed December 1,

2015 (Doc. 2) -- conspiracy to murder in violation of 18 U.S.C. § 1959(a)(5); and Count 2 -- assault

with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(3). See Plea Agreement at 2, filed

September 28, 2017 (Doc. 153); Indictment at 8-9. In the Plea Agreement, Calbert admits the

following facts and declares them true under penalty of perjury:

In 1998, while incarcerated in the New Mexico Department of Corrections, I became a member of the Syndicato Nuevo Mexico (SNM) prison gang. The SNM is an ongoing criminal organization whose members, prospects and associates engage in acts of violence and other criminal activities, including murder, kidnapping, attempted murder, and conspiracy to manufacture/distribute narcotics.

The SNM operates in the District of New Mexico and elsewhere. The SNM constitutes an enterprise (individuals associated in fact that engaged in, or the

activities of which, affected interstate commerce) that is engaged in racketeering

activity.

In March 2011, I conspired with SNM member Mauricio Varela, to kill . . . [Silva]. This conspiracy led to Mauricio Varela and I assaulting [Silva], while we were incarcerated at the Penitentiary of New Mexico, in Santa Fe, New Mexico. I stabbed him with a “shank” (a dangerous weapon) which resulted in serious bodily injury. I committed the assault and conspired to kill [Silva]. by virtue of my membership in the SNM and in order to maintain or increase my status in the SNM.

We did this because it was expected of us by virtue of our membership in the SNM and to maintain or increase our positions in the SNM.

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Plea Agreement at 5. By signing the Plea Agreement, Calbert “agrees that the Court may rely on

any of these facts, as well as facts in the presentence report, to determine the defendant’s sentence,

including, but not limited to, the advisory guideline offense level.” Plea Agreement at 5-6.

The Revised PSR expounds on the facts underlying the assault, which are unchanged from

the Original PSR -- with the exception of a clause stating that, because Calbert admitted to

committing the assault to maintain or increase his status in the SNM, a 4-level increase under

U.S.S.G. § 2A2.1(b)(2) is warranted, which the Revised PSR has removed. Compare Original

PSR ¶¶ 23-31, at 7-9, with Revised PSR ¶¶ 23-31, at 8-10. The Revised PSR provides the

following facts:

23.

According to New Mexico State Police (NMSP) reports, on March 14, 2011, an officer responded to the Penitentiary of New Mexico (PNM) in Santa Fe, New Mexico, in reference to an inmate on inmate assault. Upon arrival, the NMSP officer met with correctional officers (CO), who stated a fight erupted among three inmates in the recreational area of Yard B, resulting in one inmate, identified in the Indictment as P.S., sustaining serious injuries from a series of stab wounds. The COs stated P.S. was transported to an outside hospital. The two other inmates involved in the assault, Mauricio Varela, also known as “Archie” and “Hog Nuts,” and David Calbert, also known as “Spider,” were isolated and housed in separate areas pending interviews.

24.

The NMSP officer interviewed the COs, who were present at the time of the assault. One of the COs stated he observed Calbert in what appeared to be a stabbing motion directed at P.S. The CO observed the white part of an object, later identified as the handle of the “shank,” in Calbert's hand during a series of eight single-arm thrusts toward P.S. The CO also stated Varela was hitting and holding P.S. during the attack. The CO stated the assault lasted approximately 3 to 5 minutes when a blast ball was thrown onto the courtyard by the CO. The CO then observed Calbert walk over to the fence and throw the “shank” into another yard.

The CO continued to use gas and other resources to gain control of the situation.

25.

The NMSP officer then interviewed another CO, who indicated he had transported a group of six inmates from housing to the recreational yard before the assault. Prior to exiting the housing unit, all inmates were strip searched and placed in a metal detector designed for the entire body. The CO admitted the metal detector was known not to work properly; however, the CO still ran inmates

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through the metal detector, as it was procedure. Upon the completion of the search and use of the metal detector, the CO escorted all inmates to the recreational yard.

The CO did not note anything outside the norm of the everyday routine with the inmates. After allowing the inmates to enter the yard, the CO locked the gate and, thereafter, noticed a fight in progress at the bottom of the stairs by the wall ball court approximately 30 feet away from the CO’s view. The CO stated he observed Calbert and Varela attacking P.S. The CO stated P.S. was attempting to fight back during the attack. The CO then immediately radioed the control room, and shortly thereafter, gas was thrown into the yard. The CO then observed Calbert throw an object over the fence. Eventually, COs took control of the yard and transported P.S. to the hospital.

26.

The NMSP officer then examined the area where the assault occurred and noted that upon entry into the wall ball court, there were visible shoe markings consistent with a fight, three areas of blood, and P.S.’s shirt in the furthermost left corner of the wall ball court. The NMSP officer also located the “shank” in a separate yard, just north of the wall ball court. The “shank” was approximately 5 inches in length and approximately ¾ of an inch in width with a sharpened tip. The “shank” appeared to be a metal strand with grey paint, while the handle was wrapped in a white cloth.

27.

The NMSP officer made contact Calbert, who stated he did not want to comment on the matter, and the interview was concluded. The NMSP officer also contacted Varela, who related he too did not want to comment on the matter.

28.

Prison officials later learned through video surveillance and follow-up interviews that soon after the inmates entered the yard, Varela and Calbert attacked P.S. P.S. began fighting back and knocked Varela to the ground. The fight then moved to the wall ball court, where P.S. again knocked Varela to the ground. As Varela fell, he grabbed P.S.’s shirt and dragged him to the ground with him.

Calbert and Varela then gained the advantage. Varela got back to his feet, and as Calbert was stabbing P.S., Varela proceeded to kick P.S. in the head. As CO staff deployed chemical weapons, the attack stopped, and Calbert was observed throwing the “shank” into the adjacent yard. Varela was observed pacing back and forth in front of P.S., as P.S. swayed on his feet, bleeding profusely. P.S. was reported to have looked at Varela and asked, “Why? Why?” Varela did not answer.

Others on the yard indicated P.S.’s breathing created an audible gurgling sound from his side as he continued to bleed. P.S. then fell over and was removed from the yard on a stretcher. As P.S. was being removed from the yard, CO staff confirmed Calbert looked over at him and stated in a sarcastic tone, “Hope you make it, Sexy.”

29.

Later, the NMSP officer contacted P.S. at the hospital; however, he refused to comment on the incident. While at the hospital, the NMSP officer was informed

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P.S. suffered 10 stab wounds, mainly on the front and back of his torso. Medical staff related P.S. was expected to recover from his wounds.

30.

According to prison officials, P.S., Calbert, and Varela are members of the SNM prison gang. The NMSP officer gleaned from prison staff that P.S. had stabbed another SNM member at a prison in Las Cruces, New Mexico, in 2008.

Prison staff speculated P.S. was stabbed in retaliation for the 2008 stabbing. The prison staff further indicated P.S. had recently attempted to become a leader in the SNM and may have caused anger and jealousy with other SNM members, which may have also attributed to the assault and stabbing. Additional correctional records relate Varela was known to “hold the keys” at the South PNM Level V facility, and nothing could happen without his approval. Neither Varela nor Calbert made any statements regarding a plan or prior discussions about their intent to assault P.S.

31.

In summary, Varela, a known SNM leader at the South PNM Level V facility, and Calbert, another SNM member, assaulted P.S. with a dangerous weapon with intent to commit murder. As such the base offense level is 33 pursuant to USSG §2A2.1(a)(1). Varela struck P.S. and then held him down, while Calbert stabbed him 10 times on the front and back of his torso. P.S. suffered severe blood loss and had difficulty breathing, which required medical intervention at an outside hospital due to the substantial risk of death. Based on this information, a four-level increase is warranted, pursuant to §2A2.1(b)(1)(A), and a two-level increase is warranted, pursuant to §3A1.3. Varela and Calbert later admitted they committed the assault on P.S. by virtue of their membership in the SNM and in order to maintain or increase their status in the SNM. Based on available information, Varela and Calbert were members of the SNM, who participated in unlawful

activities under the direction of others. However, there is not enough information to accurately assess the defendant’s role, pursuant to §3B1.1 or §3B1.2.

Revised PSR ¶¶ 23-31, at 8-10 (bold in original). Calbert does not object to the Revised PSR’s

recitation of facts. See Objections at 1-25.

Calbert agrees that the USPO correctly uses U.S.S.G. § 2A2.1, pursuant to U.S.S.G.

§ 2E1.3, to calculate the base offense level. See Objections at 7. He objects, however, to the

USPO’s characterization of his assault on Silva as one that “would have constituted first degree

murder” under U.S.S.G. § 2A2.1(a)(1) and argues that Silva’s assault falls under the “otherwise”

category, which U.S.S.G. § 2A2.1(a)(2) provides. Calbert argues that the assault would not have

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constituted felony murder and “was not a premeditated killing.” Objections at 7. He maintains

that he “was armed in the event something happened,” and that “[b]eing prepared to defend

yourself with a knife in prison from someone you have been arguing with and being threatened by,

is factually inconsistent with the requirements for 18 U.S.C. § 1111.” Objections at 9-10.

An Application Note for U.S.S.G. § 2A2.1 defines first-degree murder as “conduct that, if

committed within the special maritime and territorial jurisdiction of the United States, would

constitute first-degree murder under 18 U.S.C. § 1111.” U.S.S.G. § 2A2.1 Application Note 1.

The pertinent part of 18 U.S.C. § 1111 provides:

Murder is the unlawful killing of a human being with malice aforethought.

Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

18 U.S.C. § 1111(a). The Court agrees with Calbert that the assault was not “committed in the

perpetration of, or attempt to perpetrate,” any of the enumerated offenses, and therefore the Court

focuses on whether the assault would have constituted a premeditated killing, with malice

aforethought. 18 U.S.C. § 1111(a). See Objections at 7. Killing “with malice aforethought”

means “to kill another person deliberately and intentionally, or to act with callous and wanton

disregard for human life.” Tenth Circuit Pattern Jury Instructions Criminal No. 2.52, at 165 (2018).

“[T]he use of a weapon or instrument, and the manner in which death was caused” may be

considered in determining if “the killing was with malice aforethought.” Tenth Circuit Pattern

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Jury Instructions Criminal § 2.52, at 165. “[E]vidence of conduct which is reckless and wanton,

and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted

in inferring that defendant was aware of a serious risk of death or serious bodily harm” may

establish malice aforethought. United States v. Wood, 207 F.3d 1222, 1228 (10th Cir.

2000)(internal quotation marks omitted)(quoting United States v. Soundingsides, 820 F.2d 1232,

1237 (10th Cir. 1987)). Premeditation “is the result of planning or deliberation”; it must be enough

time “for the killer, after forming the intent to kill, to be fully conscious of that intent.” Tenth

Circuit Pattern Jury Instructions Criminal No. 2.52, at 165.

The Court concludes that a preponderance of the evidence establishes that Calbert acted

with malice aforethought. Calbert stated in his plea allocution that, because of his issues with

Silva, he acquired a knife and, although he did not plan or intend to kill Silva, he stabbed Silva in

an argument and knew that “[the killing] could . . . happen.” Change of Plea at 18:16 (taken

September 29, 2017)(Calbert), filed October 31, 2017 (Doc. 181)(“Plea Tr.”). See Objections at

8 (quoting Plea Tr. at 18:3-17 (Calbert)). At the change of plea hearing, the Honorable Gregory

B. Wormuth, United States Magistrate Judge for the United States District of New Mexico, noted

that the United States alleges that Calbert conspired with Varela to kill Silva, and questioned

Calbert about this agreement. See Plea Tr. at 18:18-23 (Court). Calbert explained that Varela

“just knew that something might happen,” and that “I was going to do something, and I knew he

was going to get in it if something happened.” Plea Tr. at 18:24-25 (Calbert); id. at 19:2-3

(Calbert). Calbert said that Varela had left his knife inside, because Varela knew Calbert was

armed with a knife “[t]o defend [himself].” Plea Tr. at 19:18 (Calbert). See id. at 19:8-16 (Calbert,

Court). Calbert agreed with Judge Wormuth that he had, before the assault, arranged for Varela

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to provide him with back up, and that he knew that his first stab in Silva’s neck would very likely

lead to Silva’s death if he struck well. See Plea Tr. at 21:16-22:4 (Court, Calbert). A correctional

officer who witnessed the assault saw Calbert thrust the knife toward Silva eight times, and medical

staff indicated that Silva suffered ten stab wounds “mainly in the front and back of his torso.”

Revised PSR ¶ 29, at 9. See id. ¶ 24, at 8. Other witnesses of the assault stated that Silva’s

“breathing created an audible gurgling sound from his side as he continued to bleed” and that he

was “bleeding profusely.” Revised PSR ¶ 28, at 9. Calbert’s stabbing Silva ten times with a

handmade knife or a shank, combined with his knowledge that stabbing Silva in the neck could

lead to profuse bleeding and Silva’s death, establishes that Calbert acted with malice aforethought.

See United States v. Wood, 207 F.3d at 1228 (quoting United States v. Soundingsides, 820 F.2d

at 1237); Tenth Circuit Pattern Jury Instructions Criminal No. 2.52, at 165.

The Court also concludes by a preponderance of the evidence that Calbert acted with

premeditation. Calbert maintains that he did not intend to murder Silva and brought the knife to

defend himself should anything occur, because he did not know whether Silva was armed. See

Plea Tr. at 18:5-17 (Calbert). Calbert initiated the fight, however, by stabbing Silva in the neck.

See Plea Tr. at 18:7-9 (Calbert); id. at 21:20-25 (Court, Calbert). He proceeded to stab Silva

another nine times. See Revised PSR ¶ 28, at 9. This conduct undermines Calbert’s assertion that

the knife was for self-defense, as there is no indication that Silva acted in a way to lead Calbert to

“reasonably believe[] that he [was] in imminent danger of death or great bodily harm.” United

States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014)(citing United States v. Visinaiz, 428 F.3d

1300, 1311 (10th Cir. 2005). See United States v. Greschner, 802 F.2d 373, 384 (10th Cir. 1986)).

Calbert knew that, if he struck well with the knife, aiming for the neck was “very likely to lead to

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[Silva’s] death.” Plea Tr. at 22:2-3 (Court). See id. at 22:4 (Calbert). Calbert’s attorney explained

at the plea hearing that “it’s important that [Calbert] get it on the record that it was not his intent,

nor did he plan in advance, it was not premeditated,” because it “goes to the Guidelines analysis.”

Plea Tr. at 22:6-8 (Baker). The Court, however, has viewed the video of the assault and listened

to Calbert describe the incident. Calbert testified that he stabbed Silva, because they were having

disagreements and Silva became disrespectful, so Calbert finally stabbed him. See Transcript of

Excerpted Testimony of David Calbert at 27:111-16 (taken February 2 & 5, 2018)(Beck, Calbert),

filed April 4, 2018, in United States v. DeLeon, No. CR 15-4268 (Doc. 2056)(“DeLeon Tr.”).

Calbert explained that Silva was trying to run the pod and that Calbert disagreed with his

leadership. See DeLeon Tr. at 27:23-28:17 (Beck, Calbert). He admitted to attacking Silva in the

recreation yard with Varela and stabbing Silva many times. See DeLeon Tr. at 53:16-22 (Duncan,

Calbert). These facts gathered from Calbert’s trial testimony and the video of the assault,

combined with Calbert’s admission that he knew that stabbing Silva in the neck was likely to lead

to his death, precludes the Court from crediting Calbert’s statement that he did not intend or plan

to kill Silva. The Court therefore concludes by a preponderance of the evidence that Calbert acted

with premeditation. Because Calbert acted with premeditation and malice aforethought, U.S.S.G.

§ 2A2.1(a)(1) applies, and Calbert’s base offense level will remain at 33. The Court overrules

Calbert’s Objection.

Calbert next objects to the 4-level enhancement that the USPO applies under U.S.S.G.

§ 2A2.1(b)(1)(A) for Silva’s injuries from the assault. See Objections at 11. Calbert asserts that

Silva did not suffer permanent or life-threatening injuries as U.S.S.G. § 2A2.1(b)(1)(A)’s

application requires. See Objections at 11. Instead, Calbert maintains that Silva sustained serious

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bodily injury, so only a 2-level enhancement should apply under U.S.S.G. § 2A2.1(b)(1)(B). See

Objections at 11.

U.S.S.G. § 2A2.1(b)(1) provides: “If (A) the victim sustained permanent or life-threatening

bodily injury, increase by 4 levels; (B) the victim sustained serious bodily injury, increase by 2

levels; or (C) the degree of injury is between that specified in subdivisions (A) and (B), increase

by 3 levels.” U.S.S.G. § 2A2.1(b)(1) (bold in original). An Application Note to U.S.S.G. § 2A2.1

notes that U.S.S.G. § 1B1.1’s Application Note 1 defines the terms “permanent or life-threatening

bodily injury” and “serious bodily injury.” This Application Note provides the following

definitions:

(K) “Permanent or life-threatening bodily injury” means injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent. In the case of a kidnapping, for example, maltreatment to a life-threatening degree (e.g., by denial of food or medical care) would constitute life-threatening bodily injury.

. . . .

(M) “Serious bodily injury” means injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. In addition, “serious bodily injury” is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under

18 U.S.C. § 2241 or § 2242 or any similar offense under state law.

U.S.S.G. § 1B1.1 Application Note 1(K), (M). In an unpublished opinion, the United States Court

of Appeals for the Tenth Circuit concludes that “whether an injury is life threatening must be

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viewed at the time of the injury.” United States v. Whitehorn, 141 F.3d 1186, 1998 WL 165167,

at *2 (10th Cir. 1998)(unpublished table opinion).3

There is no evidence before the Court indicating that Silva suffered permanent injury from

the assault; accordingly, the Court will focus on whether the injury crosses the threshold from

serious bodily injury to life-threatening bodily injury. Calbert states in his Plea Agreement that he

stabbed Silva “with a ‘shank’ (a dangerous weapon) which resulted in serious bodily injury.” Plea

Agreement at 5. Accordingly, at the minimum, the 2-level enhancement under U.S.S.G.

§ 2A2.1(b)(1)(B) applies. The Court has the authority and ability to calculate the Guidelines

correctly, and the Court may find, by a preponderance of the evidence, that the injury is more

severe. See United States v. Sangiovanni, No. CR 10-3239, 2014 WL 4347131, at *23 (D.N.M.

Aug. 29, 2014)(Browning, J)(quoting United States v. Limon, 566 F. App’x 723, 726 (10th Cir.

2014)(unpublished)). The USPO asserts that the 4-level enhancement under U.S.S.G.

§ 2A2.1(b)(1)(A) applies, because Calbert stabbed Silva ten times, and Silva “suffered severe

blood loss and had difficulty breathing, which required medical intervention at an outside hospital

due to the substantial risk of death.” Revised PSR ¶ 31, at 10. The USPO does not provide the

factual basis on which it concludes that Silva faced a “substantial risk of death.” Revised PSR

3United States v. Whitehorn 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) (“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 . . . citation to unpublished opinions is not favored. However, if an unpublished opinion . . . 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)(citations omitted). The Court concludes that United States v.

Whitehorn, 141 F.3d 1186, 1998 WL 165167 (10th Cir. 1998)(unpublished table opinion), has persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.

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¶ 31, at 10. The Revised PSR provides that Silva was stabbed ten times, mainly in his torso, was

bleeding profusely, that his breathing created a gurgling sound as he bled, that he fell over, and

that medical staff at the hospital where Silva was treated relayed to a police officer that Silva was

expected to recover. See Revised PSR ¶¶ 28-29, at 9. The plea hearing revealed that Calbert first

stabbed Silva in the neck. See Plea Tr. at 21:10-12 (Castellano). The brief video of the assault

shows Silva covered in blood, sitting in a pool of his blood, unable to stand. Calbert asserts that

Silva returned to the prison within a week of being admitted to the hospital and that the “hospital

records do not indicate that he faced a substantial risk of death.” Objections at 11. The United

States provided extensive medical records at the sentencing hearing, however, that do not support

Calbert’s position. The medical records state that Silva’s stab wounds were “bleeding liberally”

and that he had lost “quite a bit of blood at the scene.” Christus St. Vincent Emergency

Documentation at 17, filed August 28, 2019 (Doc. 250)(“Medical Records”). The Medical

Records describe that Silva’s breathing was labored, and that he was short of breath and

disoriented, but still able to answer questions. See Medical Records at 17. A doctor inserted a

chest tube because of air and blood in the chest cavity. See Medical Records at 21. The multiple

stab wounds, blood loss, and medical records support the Court’s conclusion, by a preponderance

of the evidence, that the assault put him at substantial risk of death and, therefore, that he suffered

life-threatening bodily injury. Accordingly, the Court overrules Calbert’s Objection and applies

U.S.S.G. § 2A2.1(b)(1)(A).

Finally, Calbert objects to U.S.S.G. § 3A1.3, asserting that the evidence does not support

the enhancement. See Objections at 14. He asserts that video evidence of the assault does not

support the Revised PSR’s version of events, namely that “Varela struck P.S. and then held him

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down while Calbert stabbed him.” Revised PSR ¶ 31, at 10 (bold in original). See Objections at

14. Calbert maintains that “Silva was not held down or restrained in any manner.” See Objections

at 14.

U.S.S.G. § 3A1.3 applies where the “victim was physically restrained in the course of the

offense.” U.S.S.G. § 3A1.3. The Guidelines Manual counsels that the restraint-of-victim

enhancement does not apply “where the offense guideline specifically incorporates this factor, or

where the unlawful restraint of a victim is an element of the offense itself.” U.S.S.G. § 3A1.3

Application Note 2. The Guidelines Manual defines the term “physically restrained” as “the

forcible restraint of the victim such as being tied, bound, or locked up.” U.S.S.G. § 1B1.1

Application Note 1(L). These examples “are merely illustrative and not exhaustive.” United

States v. Rodella, No. CR 14-2783, 2015 WL 711941, at *27 (D.N.M. Feb. 5, 2015)(Browning,

J.)(citing United States v. Checora, 175 F.3d 782, 790 (10th Cir. 1999)). The Tenth Circuit has

advised that the restraint-of-victim enhancement applies where “there [is] a forcible restraint of a

victim which occurs during commission of the offense.” United States v. Checora, 175 F.3d at

790 (footnote omitted).

The Court agrees that the video does not show any restraint of Silva. The video is, however,

only of the end of the assault; it does not capture the entire assault. The Revised PSR provides

that a correctional officer saw Varela holding Silva during the attack. See Revised PSR ¶ 24, at 7.

Further, interviews reveal that, when Silva knocked Varela to the ground, Varela grabbed Silva’s

shirt and pulled down Silva. See Revised PSR ¶ 28, at 9. Both these actions facilitated Calbert’s

stabbing Silva and are restraint sufficient for U.S.S.G. § 3A1.3 to apply. See United States v.

Ivory, 532 F.3d 1095, 1106 (10th Cir. 2008)(upholding the enhancement’s application where the

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 14 of 22

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defendant took an action meant to “trap or immobilize” the victim); United States v. Checora, 175

F.3d at 790 (applying the enhancement where the defendants tackled the victim to the ground to

prevent his escape). The Court accordingly overrules Calbert’s Objection and applies U.S.S.G.

§ 3A1.3.

IT IS ORDERED that all of the objections in the Defendant’s Sentencing Memorandum

with Objections to Presentence Investigation Report, filed August 13, 2019 (Doc. 239), are

overruled.

________________________________

UNITED STATES DISTRICT JUDGE

Counsel:

Fred Federici Attorney for the United States

Acting Under Authority Conferred by 28 U.S.C. § 515

Albuquerque, New Mexico

--and--

Maria Ysabel Armijo Randy M. Castellano Matthew Beck Assistant United States Attorneys United States Attorney’s Office Las Cruces, New Mexico

Attorneys for the Plaintiff

Sarah M. Gorman Law Offices of Robert D. Gorman Albuquerque, New Mexico

Attorney for Defendant Angel DeLeon

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 15 of 22

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Richard Sindel Sindel, Sindel & Noble, P.C.

Clayton, Missouri

--and--

Brock Benjamin Benjamin Law Firm El Paso, Texas

Attorneys for Defendant Joe Lawrence Gallegos

Patrick J. Burke Patrick J. Burke, P.C.

Denver, Colorado

--and--

Cori Ann Harbour-Valdez The Harbour Law Firm, P.C.

El Paso, Texas

Attorneys for Defendant Edward Troup

Russell Dean Clark Las Cruces, New Mexico

Attorney for Defendant Leonard Lujan

James A. Castle Castle & Castle, P.C.

Denver, Colorado

--and--

Robert R. Cooper Albuquerque, New Mexico

Attorneys for Defendant Billy Garcia

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 16 of 22

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Douglas E. Couleur Douglas E. Couleur, P.A.

Santa Fe, New Mexico

Attorney for Defendant Eugene Martinez

Phillip A. Linder The Linder Firm Dallas, Texas

--and--

Joseph E. Shattuck Marco & Shattuck Albuquerque, New Mexico

--and--

Jeffrey C. Lahann Las Cruces, New Mexico

Attorneys for Defendant Allen Patterson

John L. Granberg Granberg Law Office El Paso, Texas

--and--

Eduardo Solis El Paso, Texas

--and--

Orlando Mondragon El Paso, Texas

Attorneys for Defendant Christopher Chavez

Nathan D. Chambers Nathan D. Chambers, LLC Denver, Colorado

--and--

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 17 of 22

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Noel Orquiz Deming, New Mexico

Attorneys for Defendant Javier Alonso

Scott Moran Davidson Albuquerque, New Mexico

--and--

Billy R. Blackburn Albuquerque, New Mexico

Attorneys for Defendant Arturo Arnulfo Garcia

Stephen E. Hosford Stephen E. Hosford, P.C.

Arrey, New Mexico

--and--

Jerry Daniel Herrera Albuquerque, New Mexico

Attorneys for Defendant Benjamin Clark

Pedro Pineda Las Cruces, New Mexico

--and--

León Encinias León Felipe Encinias Attorney at Law Albuquerque, New Mexico

Attorneys for Defendant Ruben Hernandez

Gary Mitchell Mitchell Law Office Ruidoso, New Mexico

Attorney for Defendant Jerry Armenta

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 18 of 22

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Larry A. Hammond Osborn Maledon, P.A.

Phoenix, Arizona

--and--

Margaret Strickland McGraw & Strickland Las Cruces, New Mexico

Attorneys for Defendant Jerry Montoya

Steven M. Potolsky Jacksonville Beach, Florida

--and--

Santiago D. Hernandez Law Office of Santiago D. Hernandez El Paso, Texas

Attorneys for Defendant Mario Rodriguez

Jacqueline K. Walsh Walsh & Larranaga Seattle, Washington

--and--

Ray Velarde El Paso, Texas

Attorneys for Defendant Timothy Martinez

Joe Spencer El Paso, Texas

--and--

Mary Stillinger El Paso, Texas

Attorneys for Defendant Mauricio Varela

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 19 of 22

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Richard Jewkes El Paso, Texas

--and--

Lauren Noriega The Noriega Law Firm Los Angeles, California

--and--

Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California

Attorneys for Defendant Daniel Sanchez

George A. Harrison Las Cruces, New Mexico

--and--

Kimberly S. Brusuelas-Benavidez Albuquerque, New Mexico

Attorneys for Defendant Gerald Archuleta

B.J. Crow Crow Law Firm Roswell, New Mexico

Attorney for Defendant Conrad Villegas

Theresa M. Duncan Duncan, Earnest, LLC Albuquerque, New Mexico

--and--

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 20 of 22

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Marc M. Lowry Rothstein Donatelli, LLP Albuquerque, New Mexico

Attorneys for Defendant Anthony Ray Baca

Charles J. McElhinney McElhinney Law Firm, LLC Las Cruces, New Mexico

Attorney for Defendant Robert Martinez

Marcia J. Milner Las Cruces, New Mexico

Attorney for Defendant Roy Paul Martinez

Christopher W. Adams Charleston, South Carolina

--and--

Amy Sirignano Law Office of Amy Sirignano, P.C.

Albuquerque, New Mexico

Attorneys for Defendant Christopher Garcia

William R. Maynard El Paso, Texas

--and--

Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico

--and--

Ryan J. Villa Albuquerque, New Mexico

--and--

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 21 of 22

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Michael V. Davis Michael V. Davis, Attorney & Counselor at Law, P.C.

Corrales, New Mexico

Attorneys for Defendant Carlos Herrera

Justine Fox-Young Albuquerque, New Mexico

--and--

Ryan J. Villa Albuquerque, New Mexico

Attorneys for Defendant Rudy Perez

Lisa Torraco Albuquerque, New Mexico

--and--

Donavon A. Roberts Albuquerque, New Mexico

Attorneys for Defendant Andrew Gallegos

Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico

Attorney for Defendant Santos Gonzalez

Angela Arellanes Albuquerque, New Mexico

Attorney for Defendant Shauna Gutierrez

Jerry A. Walz Walz and Associates Albuquerque, New Mexico

Attorney for Defendant Brandy Rodriguez

Case 2:15-cr-04269-JB Document 258 Filed 10/08/19 Page 22 of 22