MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 227

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Doc. 227

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DIANE J. HUMETEWA United States Attorney District of Arizona JENNIFER E. GREEN Assistant U.S. Attorney Arizona State Bar No. 018792 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone [phone]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Gilbert Lee Holmes, Defendant. Pursuant to U.S.S.G. §§ 5K2.0, 5K2.8, and 4A1.3, the United States requests that the CR-08-743-PHX-GMS GOVERNMENT'S REQUEST FOR UPWARD DEPARTURE

15 court grant a seven-level upward departure at sentencing due to the aggravating circumstances 16 present in this case, the extreme conduct of Gilbert Lee Holmes (defendant), and the 17 underepresentation of his criminal history, especially his tribal criminal history against the 18 woman he murdered, Audrey Sharpe (victim). This motion is more fully supported by the 19 attached Memorandum and Points of Authorities which are hereby incorporated by reference. 20 21 22 23 24 25 26 27 28 Respectfully submitted this 23rd day of June, 2009. DIANE J. HUMETEWA United States Attorney District of Arizona

JENNIFER E. GREEN Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES The United States requests that the court depart upward pursuant to U.S.S.G. §§ 5K2.0,

3 5K2.8, and 4A1.3 in that committing the murder of Audrey Sharpe was executed in an 4 aggravating fashion, and was substantially more extreme than that contemplated by the 5 sentencing guidelines for second-degree murder. Further, his criminal history is not adequately 6 represented by a Criminal History category I. He should qualify as a Criminal History II. 7 I. 8 Facts As set forth in the presentence report, on April 28, 2008, on the Colorado River Indian

9 Tribes reservation, defendant broke through the front window of the home of Audrey Sharpe to 10 get into her house. He had been drinking. The defendant then went into the bedroom of the 11 victim where he saw his three-year old daughter sleeping with Jason Sharp, the father of the 12 victim's nine- and 10- year old sons. Jason Sharp had been babysitting the victim's children 13 while she went out. The defendant began to beat Jason Sharp, and Jason Sharp fought back. 14 The victim, who was in the bathroom at the time, screamed for Jason Sharp to call the

15 police. Jason Sharp ran to a neighbor's house to call the police. Once Jason Sharp left, the 16 defendant attacked the victim, first in the bathroom, continuing in the hallway, and then in the 17 victim's bedroom. Initially, the defendant beat the victim numerous times about the head and 18 face with a four-foot closet rod. He then attempted to stab her with the rod until it shattered. 19 The defendant then stabbed the victim multiple times with a kitchen knife. Finally, the 20 defendant kicked the victim in the face splitting her face from her mouth to her cheekbone. 21 While the defendant beat and stabbed the victim in the bedroom, the victim's three-year

22 old daughter was in the same bedroom. The victim's 9 and 10-year-old sons were in their 23 bedroom listening to the beating. When the beating quieted, the 9-year-old son went out to 24 check on his mother while the 10-year-old hid under a blanket and sheet. The defendant was still 25 there and threw the 9-year-old boy on his mother's bloody body, saying "that's your whore 26 mother, that's what she gets." The 10-year old then came out of his room and saw his brother 27 covered in blood. 28
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1 2 The victim soon died from her injuries. The victim died from exsanguination due to Blunt force injuries to the head were a significant

3 multiple stab and incised wounds. 4 contributing factor in her death. 5 II. 6 7 Legal Analysis A.

U.S.S.G. § 5K2.0 and 5K2.8

Under U.S.S.G. § 5K2.0, a district court may depart when "there exists an aggravating

8 or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration 9 by the Sentencing Commission in formulating the guidelines that should result in a sentence 10 different from that described." Koon v. United States, 518 U.S. 81, 92,(1996) (quoting 18 11 U.S.C. § 3553(b)). 12 Section 5K2.8. addresses extreme conduct. The Extreme Conduct Policy Statement

13 provides as follows: 14 15 16 17 If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.

18 "Where ... a district court sets out findings justifying the magnitude of its decision to depart 19 and extent of departure from the Guidelines, and that explanation cannot be said to be 20 unreasonable, the sentence imposed must be affirmed." United States v. Roston, 168 F.3d 21 377, 378 (9th Cir.1999) (quoting United States v. Sablan, 114 F.3d 913, 919 (9th Cir.1997) 22 (en banc)). "A district court's decision to depart from the Guidelines ... will in most cases be 23 due substantial deference, for it embodies the traditional exercise of discretion by a 24 sentencing court." Koon, 518 U.S. at 93-94; see U.S.S.G. § 5K2.8 (noting that "gratuitous 25 infliction of injury" is an example of extreme conduct). 26 In the case at hand, bludgeoning the victim's face with a closet rod to her mouth area

27 was grotesque. Choosing to get a kitchen knife and then stab her repeatedly was even more 28
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1 alarming. Finally, throwing a child onto his mother's dying bloody body and calling her a 2 "whore" who "deserved it" defies any sort of reasoning. "Gratuitous infliction of injury" is 3 an appropriate but also sanitary description for this defendant's actions. Defendant Holmes 4 must be held responsible for the gruesome nature of her murder. Defendant's brutal killing 5 of the mother of one of his children is the most horrific, senseless, and bloody, and violent 6 way to murder a person. Exposing three children to such violence is shocking. Certainly this 7 case presents the quintessential reason for an upward departure; if these facts do not meet the 8 definition of "unusually heinous, cruel, brutal," the undersigned prosecutor is not sure what 9 case would. 10 Further, courts have affirmed cases with displays of far less violence. For example,

11 the imposition of a seven-level upward departure from the Sentencing Guidelines range 12 under the "extreme conduct" provision was not abuse of discretion when defendant was 13 convicted of second-degree murder for killing his wife for no apparent reason while on their 14 honeymoon cruise. United States v. Roston, 986 F.2d 1287, 1293 (9th Cir. 1993). The 15 district court found that circumstances of death were unusually cruel where the wife was 16 severely beaten and strangled before her body was thrown overboard, and she never regained 17 consciousness before drowning. Id. 18 This case presents at least a similar if not a more gruesome set of facts. Here the

19 stabbings into the mouth that continued on until the closet rod splintered. This did not stop 20 the defendant, who found another weapon, a knife, and stabbed her repeatedly. As if the 21 manner of her death were not enough, he compounds the brutality by exposing children to his 22 handiwork. And true to his nature, because merely exposing three children to their mother's 23 murder was not enough, he tosses one child onto her bloody body. The defendant has shown 24 no remorse and no redeeming conduct. The situation in the case at hand is much more 25 aggravated than in reported case above where an upward departures was granted. 26 27 28
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B.

U.S.S.G. §4A1.3

The guidelines provide a mechanism to account for a defendant's seriously under

3 represented criminal history in U.S.S.G. §4A1.3: "[i]f reliable information indicates that the 4 defendant's criminal history category substantially under-represents the seriousness of the 5 defendant's criminal history or the likelihood that the defendant will commit other crimes, an 6 upward departure may be warranted." Tribal police responded to at least nine calls from 7 Audrey Sharpe in response to defendant's conduct against her (ex: threatening to break her 8 windows if she did not let him in in 8/21/05), or his suspected conduct against her (ex: 9 punctured tires the day after Christmas on 12/26/07). See PSR, pages 7-14. Further, he 10 already attempted to stab her in January 2004, and assaulted her in August 2003, April 2004, 11 and July 2005. No amount of probation, jail time, or fine mattered to this defendant ­he was 12 determined to harass, assault, and otherwise provoke this victim. In viewing his criminal 13 history, a pattern of domestic violence emerges. Audrey Sharpe was clearly the target of his 14 drunken rage over the years, and nothing was going to stop him from tormenting her ­until 15 he finally killed her. 16 17 III. 18 Recommendation for Upward Departure Defendant pleaded guilty and signed a plea agreement stipulating to a range of 25-35

19 years (300-420 months). This range contemplates a motion for upward departure, because 20 the guideline range for Second-Degree Murder is 168-210 months, or Level 35. Therefore, 21 if defendant is going to be considered a Criminal History I, the government recommends a 22 seven-level departure from Level 35 to Level 42. Level 42 provides a sentencing range 23 contemplated by the plea of 360 months - life. If the defendant is categorized as a Criminal 24 History II as recommended by the PSR and the government, then the government 25 recommends a six-level departure from Level 35 to Level 41, which provides a sentencing 26 range of 360 months - life. 27 28
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Conclusion All murders are awful, but this defendant committed a most horrific crime when he

3 bludgeoned Audrey Sharpe to death, then stabbed her, then threw her child onto her body. 4 For all the foregoing reasons, the court should grant the government's motion for upward 5 departure. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 23rd day of June, 2009. DIANE J. HUMETEWA United States Attorney District of Arizona S/Jennifer E. Green JENNIFER E. GREEN Assistant United States Attorney

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CERTIFICATE OF SERVICE

4 I hereby certify that on this 23rd of June, 2009, I electronically transmitted the attached document to 5 the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 6 Filing to the following CM/ECF registrants: 7 8 9 10 11 By: S/Jennifer E. Green 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
7 Jane McClellan Attorney for Defendant Holmes