Opinion
Criminal File Nos. C3-05-04, C3-05-05.
April 22, 2005
SENTENCING MEMORANDUM
On April 22, 2005, the Court held a sentencing hearing. At that hearing, the Court adopted the factual findings and guideline application in the presentence report except for the criminal history category. The government moved, pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e), for a reduction in sentence and to remove the application of the minimum mandatory based upon the defendant's substantial assistance. The government recommended a sentence of 48 months. The Court imposed a sentence of 42 months. The Court stated its reasons for this sentence during the hearing, and many of those reasons will be repeated here, but to the extent that any factual findings or sentencing rationale from the hearing is not mentioned here, it is incorporated by reference.
I. Background
In United States v. Booker, 125 S.Ct. 738, 764 (2005), the United States Supreme Court severed and excised 18 U.S.C. § 3553(b)(1), which required courts to impose a sentence within the applicable United States Sentencing Guidelines range. Now when judges impose sentences, they must take account of the Guidelines together with the other sentencing goals in 18 U.S.C. § 3553(a).Booker, 125 S.Ct. at 764. The Guidelines should be given "substantial weight." United States v. Peach, No. C4-04-033, 2005 WL 352636, *4 (D.N.D. Feb. 15, 2005); United States v. Wanning, No. 4:03CR3001-1, 2005 WL 273158, *3 (D. Neb. Feb. 3, 2005).
II. Sentence Determination
The defendant's past criminal acts created a total of eleven criminal history points, which placed her in criminal history category V. People who are typically in criminal history category V have a life-long pattern of criminal behavior that is only interrupted by those periods of time when they are incarcerated. Here we have a defendant whose criminal history basically started only five years ago. Some of the criminal activity relates to a bad relationship she had with her ex-husband. The Court finds that the defendant's criminal history category overrepresents her criminal history. She more appropriately fits within a category IV or III.
Defendant also has some unusual health concerns. Among other things, she has an active case of hepatitis C. The Court takes this into account pursuant to 18 U.S.C. §§ 3553(a) and (b).
The government has informed the Court that Defendant's assistance will lead to the indictment of some new individuals. Her testimony corroborated other information the government possessed. In addition, she cooperated in a timely fashion. She agreed to plead guilty to informations without waiting for the indictment, and she was debriefed shortly after her guilty pleas.
Based on the overrepresentation of her criminal history, her health issues, and her substantial assistance to the government, the Court finds that a sentence of 42 months is appropriate. Under USSG § 5G1.3(b), a court must adjust a sentence for any period of imprisonment for conduct relevant to the present charge if the Bureau of Prisons would not credit it to the defendant's federal prison sentence. Defendant is currently serving a state sentence for possession of a controlled substance, possession of an imitation controlled substance with intent to deliver, possession of drug paraphernalia, and giving false information to a law enforcement officer. These charges are related to the two drug conspiracy charges in the present cases. Defendant has been serving her state sentence since August 2, 2004. Therefore, the Court must adjust her federal sentence by eight months and twenty days. This leaves a sentence of 33 months and 10 days. This federal sentence will run concurrently with the remainder of her undischarged term of imprisonment on the state sentence. USSG § 5G1.3(b)(2).
CONCLUSION
In reaching the sentence in this case, the Court gave substantial weight to the Sentencing Guidelines. As is clear, the Court's final sentence relies heavily on the Guidelines and only departs from them slightly.