Date: 12-25-2014

Case Style: United States of America v. Jayleen Armijo

Case Number: 14-2011

Judge: Robert E. Bacharach

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of New Mexico (Bernalillo County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: Ms. Jayleen Armijo pleaded guilty to assault resulting in serious
bodily injury, as well as aiding and abetting that offense. She received a
24-month sentence, and a codefendant received probation. Ms. Armijo
appeals, arguing that the sentence was procedurally and substantively
unreasonable. We reject both arguments.
In the procedural challenge, Ms. Armijo contends that the district
judge failed to recognize that he could consider the codefendant’s
* This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But, the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
December 24, 2014
Elisabeth A. Shumaker
Clerk of Court
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probationary sentence. This challenge is based on an erroneous
interpretation of the judge’s explanation. The judge never said that he
lacked the legal authority to consider the codefendant’s probationary
sentence.
Ms. Armijo also argues that her sentence is substantively
unreasonable because the district court did not adequately account for her
rehabilitation since the arrest, the role the victim had played in the
altercation, and the disparity between Ms. Armijo’s sentence and her
codefendant’s. But the district court sentenced Ms. Armijo to a
presumptively reasonable sentence within the guidelines and considered
the pertinent factors. Doing so, the court acted within its discretion to
arrive at a 24-month sentence.
We affirm.
I. The Fight
On a winter night in 2012, Ms. Jayleen Armijo and her boyfriend,
Mr. Benjamin Menchego, attended a bonfire party. Ms. Amber Baca also
attended.
At the party, Ms. Baca allegedly told Mr. Menchego’s cousin, a local
Medicine Man, to go away before she “kicked his a**.” Ms. Armijo
thought Ms. Baca’s comment was disrespectful, and a fight erupted.
In the fight, Ms. Armijo bit and choked Ms. Baca. Some, including
Ms. Baca, reported that Mr. Menchego had punched and kicked Ms. Baca
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in the face, causing a serious eye injury. Others saw Mr. Menchego trying
to pull the two women away from each other, stating that a different
attacker had caused Ms. Baca’s eye injury.
Ms. Baca went to the hospital with severe pain, ruptured blood
vessels in her eye, loss of consciousness, bite marks, scarring, and bruises.
II. Procedural Error
Ms. Armijo contends the sentence was procedurally unreasonable.
We disagree.
Our review is limited, for we decide only whether the district court
abused its discretion. United States v. Sanchez-Leon, 764 F.3d 1248, 1262
(10th Cir. 2014). In exercising its discretion, the court had to consider the
sentencing factors in 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S.
38, 51 (2007).
Ms. Armijo contends that when she objected to the disparity between
her sentence and the codefendant’s, the district court limited its analysis to
§ 3553(a)(6). This section states a court must take into account “the need
to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6) (2012).
Ms. Armijo acknowledges that § 3553(a)(6) applies to defendants
nationwide and does not apply to codefendants, but points out that the
disparity could still be considered. See United States v. Smart, 518 F.3d
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800, 804-05 (10th Cir. 2008). She argues that because the judge mentioned
only § 3553(a)(6), he must not have understood his authority to consider
the disparity under other § 3553(a) factors.
This argument separates the judge’s comment from its context. In a
sentencing memorandum, defense counsel had complained of the disparity,
invoking § 3553(a)(6). Def.’s Sentencing Mem. at 5 (Dec. 12, 2013) (Dkt.
No. 87).1 Addressing this complaint, the judge stated that § 3553(a)(6) did
not apply. But the judge apparently made this remark at least in part
because defense counsel had relied on § 3553(a)(6) in his sentencing
memorandum.
The judge apparently understood his authority to broadly consider
sentencing disparities. He declined to consider this disparity not because
he lacked authority, but because Ms. Armijo had pleaded guilty to a felony
and Mr. Menchego had pleaded guilty to a misdemeanor:
1 Defense counsel stated in his memorandum:
This court can and should take into consideration the
unequal treatment of the two defendants in this case, a factor
recognized by 18 U.S.C. § 3553 which states at ¶ (a)(6) “the
need to avoid unwarranted sentencing disparity among
defendants with similar records who have been found guilty of
similar conduct.” Although both defendants did not plead
guilty to a felony assault charge, the Court cannot ignore the
evidence that was present against both defendants which could
have resulted in a jury finding both defendants guilty at the
conclusion of a trial.
Def.’s Sentencing Mem. at 5 (Dec. 12, 2013) (Dkt. No. 87).
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Mr. Menchego . . . stands guilty of a misdemeanor offense,
and the defendant stands guilty of a felony offense.
. . . .
[A]s I recall with Mr. Menchego’s plea was that the
evidence that the government had at trial was not going to
support, you know, a felony conviction, or at least there was
serious concern on the part of the government. So based on
that . . . the government chose to offer a misdemeanor plea
to the codefendant, and then Ms. Armijo pled straight up to
the felony charge.
So you have one defendant convicted of a misdemeanor and
one defendant convicted of a felony, and there may be
heartburn or there may be a view that the government was
more generous to Mr. Menchego. But in terms of disparity
analysis under the sentencing factors and that factor that
talks about the need to avoid unwarranted sentencing
disparities among defendants who have been found guilty of
similar conduct, I don’t consider that factor to come into
play here because Ms. Armijo is convicted of the felony and
Menchego was convicted of the . . . misdemeanor offense.
Tr. at 39-40 (Dec. 17, 2013) (Dkt. No. 104).
The judge considered the disparity, but viewed Ms. Armijo’s
circumstances as different from Mr. Menchego’s. Relying on this
dissimilarity, rather than a lack of legal authority, the district court acted
within its discretion.2 Thus, Ms. Armijo’s sentence was not procedurally
unreasonable.
2 In her reply brief, Ms. Armijo suggests that the government had to
disprove Mr. Menchego’s guilt. Appellant’s Reply Br. at 12. This
suggestion is new and unexplained. In her opening brief, Ms. Armijo
argued that the court had mistakenly denied authority to consider the
disparity with Mr. Menchego’s sentence. The argument did not involve
sufficiency of the government’s evidence to justify the disparity. But,
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III. Substantive Reasonableness
The sentence was substantively reasonable. Gall v. United States,
552 U.S. 38, 51 (2007).
In our review, we again apply the abuse-of-discretion standard.
United States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014).
For the issue of substantive reasonableness, we consider whether the
length of the sentence was reasonable under the § 3553(a) factors. United
States v. Lente, 759 F.3d at 1155. We presume a sentence is reasonable
when it falls within the guideline range. United States v. Chavez, 723 F.3d
1226, 1233 (10th Cir. 2013). Though this presumption can be rebutted, the
party challenging the sentence bears the burden. United States v. Kristl,
437 F.3d 1050, 1054 (10th Cir. 2006).
Ms. Armijo’s sentence lies within the guideline range, so it is
presumptively reasonable. But, she argues her sentence was excessive
because
● she had been rehabilitated after the offense,
● the victim had started the altercation, and
● Mr. Menchego had inflicted the most serious injuries to the
victim and obtained a milder sentence.
These factors did not compel the district court to impose a lighter sentence.
even in her reply brief, Ms. Armijo does not explain why the government
would have to disprove Mr. Menchego’s guilt.
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A. Post-Arrest Rehabilitation
In Ms. Armijo’s view, her post-arrest rehabilitation demonstrates that
she is no longer “the same person who committed the offense.” Appellant
Br. at 35. In support, Ms. Armijo cites cases where courts have affirmed
district court decisions to apply a downward variance because of a
defendant’s post-arrest rehabilitation. See, e.g., Gall v. United States, 552
U.S. 38, 58 (2007) (holding that it was proper for the district court to take
into account a defendant’s post-arrest behavior as an indication that he
would not engage in illicit conduct in the future).
Ms. Armijo concedes that her rehabilitation was factored into the
sentence. The concession is correct, for the district court assessed Ms.
Armijo’s post-arrest rehabilitation: “[I]n terms of Ms. Armijo’s
participation in AA and her . . . efforts since she’s been at the halfway
house to deal with her alcohol problem, . . . that’s commendable.” Tr. at
40 (Dec. 17, 2013) (Dkt. No. 104). The court noted that this factor
supported Ms. Armijo, but was matched by her history of alcohol-related
and violent crimes in tribal court.
The court acted within its discretion in weighing Ms. Armijo’s postarrest
rehabilitation.
B. Victim’s Role in the Altercation
Ms. Armijo also argues that her sentence is substantively
unreasonable because Ms. Baca started the fight. We disagree.
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A victim’s actions can support a downward departure from the
guidelines. See United States v. LaVallee, 439 F.3d 670, 708-09 (10th Cir.
2006) (holding that where the victim “made sexually explicit remarks to a
female officer, threatened [the defendant] immediately before the assault,
and made an aggressive move toward him,” the district court did not abuse
its discretion in granting a downward departure).
The district court analyzed Ms. Baca’s conduct, but explained that it
did not warrant Ms. Armijo’s violent reaction. Tr. at 18 (Dec. 17, 2013)
(Dkt. No. 104). This explanation was reasonable, and the district court
acted within its discretion in considering Ms. Baca’s role in the
altercation.
C. Mr. Menchego’s Lesser Sentence
Finally, Ms. Armijo argues that the sentence was unreasonable
because it was harsher than Mr. Menchego’s. The district court recognized
the difference in sentences, but acted reasonably in giving Ms. Armijo 24
months.
The district court justified Ms. Armijo’s greater sentence based on
her greater culpability. This rationale was justifiable based on the
information supplied to the court.
This information included the difference in the offenses: Ms. Armijo
pleaded guilty to assault resulting in serious injury, while Mr. Menchego
pleaded guilty to touching the victim without consent. The government
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explained that it had agreed to the lesser charge for Mr. Menchego because
of differences in the bystanders’ accounts. These differences created proof
problems in the prosecution against Mr. Menchego.
These problems did not exist in the prosecution against Ms. Armijo.
As her guilty plea reflects, she admitted that she had assaulted Ms. Baca,
causing serious injury. This admission led the district court to observe:
“[T]his case involved a situation where the defendant physically assaulted
the victim, who was bitten numerous times and sustained a serious eye
injury. By ‘serious,’ . . . I’m not only including the eye injury but . . . the
various times the victim was bit.” Tr. at 38 (Dec. 17, 2013) (Dkt. No.
104).
The district court acted within its discretion in viewing Ms. Armijo
as more culpable than Mr. Menchego. Thus, the district court had the
discretion to conclude that Ms. Armijo deserved a 24-month sentence even
though Mr. Menchego had obtained probation.

Outcome: In light of these conclusions, we affirm.

Plaintiff's Experts:

Defendant's Experts:

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