Summary
discussing 2002 conviction and substantial assistance downward departure
Summary of this case from United States v. Wetzel-SandersOpinion
Case No. 02-40059-02-RDR
December 23, 2002
MEMORANDUM AND ORDER
On December 18, 2002, the court sentenced the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court during that hearing.
The defendant entered a guilty plea to bank robbery in violation of 18 U.S.C. § 2113(a). Prior to sentencing, the defendant filed several objections to the presentence report and a motion for downward departure pursuant to U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b). The government has filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).
SENTENCING OBJECTIONS AND MOTIONS FOR DOWNWARD DEPARTURE
By the Government
The government has no objections to the presentence report, but has filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The government recommends that the defendant's sentence be reduced to 18 months for her substantial assistance in this case.
By the Defendant
1. The defendant objects to the information contained in paragraphs 9 and 11 of the presentence report. The defendant argues that certain facts are incorrect, including the statement that she received $500 from the bank robbery. The government and the probation office contend that the information contained in paragraphs 9 and 11 is accurate. They assert that this information is taken from the defendant's own statements following the bank robbery.
The court finds it unnecessary to rule on this objection because the controverted matter will not be taken into account in sentencing the defendant. Fed.R.Crim.P. 32(c)(1).
2. The defendant contends that she should receive a four-level reduction in her offense level for her mitigating role in the offense. She asserts that she had only a minimal role in the offense. The government asserts that the defendant is entitled to a two-level reduction for her minor role in the offense. The probation office agrees with the government and has provided a two-level reduction in the defendant's offense level.
The Sentencing Guidelines allows a four-level reduction if the defendant was a "minimal" participant in the offense and a two-level reduction if the defendant was a "minor" participant. U.S.S.G. § 3B1.2. The determination of a defendant's role in the offense is a factual question. See United States v. James, 157 F.3d 1218, 1219 (10th Cir. 1998). The defendant has the burden of proving by a preponderance of the evidence that he is entitled to the § 3B1.2 reduction. See United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999).
The court agrees with the government and the probation office. The court believes that the two-level reduction was appropriate because the defendant's conduct was more than minimal.
3. The defendant contends that her criminal history score has been miscalculated in the presentence report. She argues that she has only five criminal history points rather than six as reflected in the report. The government has no position on this contention.
The court finds it unnecessary to rule on this objection because it will not affect the defendant's sentencing. Fed.R.Crim.P. 32(c)(1). The defendant's criminal history category remains at III whether she has five or six criminal history points. 4. The defendant argues that she is entitled to downward departure based upon the following circumstances: (1) a sentence beyond six months will result in the severance of her parental rights; (2) she suffered extreme psychological, physical and sexual abuse as a child; (3) she was coerced into committing the crime; (4) she suffers from diminished capacity; (5) she committed the crime to avoid a greater harm; and (6) she voluntarily disclosed her offense shortly after it occurred. The government and the probation office do not believe that the defendant is entitled to a downward departure for the aforementioned reasons.
The court heard considerable evidence at the sentencing hearing on several of the issues raised by the defendant in her motion for downward departure. This evidence included testimony from Rachel Hockenbarger, an attorney who represents the defendant in her pending child in need of care case; William Logan, M.D., a psychiatrist who interviewed and evaluated the defendant; and Deborah Sabb, the Director of Advocacy at the Topeka Rescue Mission (TRM) who represented the defendant while she was a resident at TRM.
In determining the sentence in this matter, the court has carefully considered the defendant's motion for downward departure and the government's motion for downward departure. The court understands that it has the authority to depart downward for some, if not all, of the reasons stated by the defendant. Having reviewed all of the circumstances, the court has determined that a downward departure from the guideline range of 41 to 51 months to 18 months is an appropriate sentence for the defendant.
IT IS SO ORDERED.