Lengthy Criminal Records Matter to 10th Circuit

Lengthy Criminal Records Matter to 10th Circuit

Carol Berry
12/6/11

A Nambe Pueblo member who objected to the length of his sentence for assault failed to persuade a federal appeals court that his prison term was too long.

Ronald Romero, 47, had been sentenced to four years imprisonment under guidelines that took into account his “lengthy criminal record, which included 20 prior convictions,” a three-judge panel of the 10th U.S. Circuit Court of Appeals said November 29.

As his latest case traveled through the legal system, Romero acknowledged that his “record doesn’t look too hot,” court records showed.

Romero was indicted by a federal grand jury for “grabbing the face of a Bureau of Indian Affairs officer, gouging at the officer’s eye,” according to the U.S. Attorney’s office. “The officer’s right cornea was scratched in the assault.” He also spat on Shawn Boyd, the corrections officer, and scratched his face and neck, federal appeals court records showed.

The attack occurred in November 2008 in the Ute Mountain Ute Jail in Towaoc, southwestern Colorado, and Romero was found guilty nearly two years later after a district court jury in nearby Durango deliberated less than two hours.

The government argued that although Romero’s sentence was an upward departure from federal guidelines, it was justified because he had prior convictions that were not part of the criminal history taken into account initially in determining the length of his sentence.

Even though some sentences for those convictions were for assault or violent offenses, federal guidelines excluded them from Romero’s criminal history because they were either imposed outside the time range allowed or were imposed by a tribal court. As a result, his criminal history was “substantially under-represented,” the district court found.

Tribal court sentences could not be considered in determining criminal history, but they could be considered in deviations from federal sentencing guidelines, according to the current petition.

Romero also questioned three assault convictions’ role in the longer sentence, including a 1984 aggravated assault conviction. “But as the district court noted, the record reflects that Mr. Romero struck one person with a tire iron, chased another with a screwdriver, and hit another person with a rock,” the current petition states.

Romero conceded that records regarding a 2007 tribal court conviction on multiple counts of assault and battery supported a longer sentence, but disagreed when the lower court relied on what he termed other, uncounted convictions as well as tribal court convictions for protection order violation and disorderly conduct in 1999 and for battery in 2003.

He argued without elaboration that the district court should not have considered his 2003 tribal court conviction because he pled guilty without the assistance of an attorney.

In upholding the lower court, the judges noted that Romero acknowledged some amount of upward departure from sentencing guidelines was appropriate, based on his history of assault-related offenses.

The district court increased his criminal history by four levels and imposed a sentence nearly twice as long as the maximum sentence under federal guidelines. In upholding the sentence, the appeals court said it deferred to the lower court’s decision about the facts “although we would not have reached the same determination as the district court in this case.”

“As this verdict affirms, assaults on federal officers will be prosecuted forcefully and promptly,” said U.S. Attorney John Walsh when the initial guilty verdict was announced. “Our law enforcement agents and officers will act to protect the public, and are themselves protected by law.” The BIA investigated the case and Romero was prosecuted by the U.S. Attorney’s office.

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