Opinion
Case Number: 1:05cr125.
August 2, 2006
OPINION
In considering the factors under 18 USC 3553 (a) the Court has carefully considered everything before it including the five latest pleadings in this case:
1) Government's Motion for Upward Departure in which the Government argues that the Defendant's criminal history category of V under-represents the seriousness of his criminal history and the likelihood of recidivism.
2) Defendant's Sentencing Memorandum in which the Defendant argues that the Court should grant a downward variance pursuant to the United States Sentencing Guideline based upon Defendant's extraordinary family responsibilities for his ill father and his four children ages 16, 14, 13 and ten months.
3) Defendant's Memo in Opposition to Government's Motion for Upward Departure in which the Defendant contends that an upward departure is inappropriate because his criminal record has already been adequately addressed by the Sentencing Guidelines because the prior convictions are not so sufficiently unusual to warrant a departure.
4) Plaintiff's Response in Opposition to Defendant's Sentencing Memorandum.
5) Plaintiff's Reply in Support of Motion for Upward Departure.
The Probation Department correctly found that because he has 12 criminal history points, the Defendant is in criminal history V, which is the second highest category under the Sentencing Guidelines. Those 12 criminal history points come from four different cases involving the possession of four different weapons and 11,240 grams of marijuana.
The Government argues that the Defendant also has three other convictions for weapons and one for trafficking in marijuana and seven juvenile convictions, none of which involve guns, which although uncounted under the guidelines may properly be considered in determining the propriety of an upward departure.
As a point of information for the Government and Defense counsel, it would be helpful if these issues had initially been raised as objections to the pre-sentence report. In the last section of every pre-sentence report, the Probation Officer sets forth any factors that may warrant a deviation from the advisory Sentencing Guidelines. In this case, the Probation Officer stated, "There are no factors that would prompt a variance from the guideline imprisonment range in this case." If counsel objected to this finding by the Probation Officer, they should have filed objections with the Probation Officer during the objection period. In that way, the Court would have had the benefit of the Probation Officer's analysis of this argument.
The Court has carefully considered the findings of the Probation Officer and the arguments of counsel for and against departures, both upward and downward. The Court finds that the Defendant, who is only 34 years old, is already in Category V, which is the next to highest criminal history category. This computation takes into account four of the seven convictions that the Defendant has for illegal possession of a weapon. Clearly the four convictions in the last ten years already represent a history of recidivism for illegal possession of guns and drugs. Under United States Sentencing Guidelines § 4 A 1.2 comment n. 8 and 4 A 1.3, the Court may consider evidence of similar criminal conduct outside the time period within which prior sentences are counted in determining whether an upward departure is warranted. The Court has considered Defendant's similar criminal conduct and his juvenile record. The Court is satisfied that a criminal history category of V is sufficient for all of the criminal conduct of the Defendant.
With regard to the other six factors under 18 USC § 3553 (a), in addition to the kinds of sentences in the sentencing range established by the United States Sentencing Guidelines, the Court has carefully considered each of the other factors.
In particular the Court has considered 18 USC § 3553 (a) 1: "The nature and circumstances of the offense" and finds that the Defendant was stopped for a routine traffic violation and found to be in possession of a loaded firearm and some marijuana. With regard to "The history and characteristics of the Defendant" the Court finds that the Defendant is continuing his pattern of carrying concealed weapons and his long history with illegal drugs.
The Court has also considered 18 USC § 3553(a) 2:
The need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct (C) to protect the public from further crimes; (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
In addition to (A), (B) and (C) under 18 USC § 3553 (a) 2 which the Court has already discussed above, (D) "to provide the Defendant with needed educational or vocational training" is particularly pertinent. The Defendant has a sparse work history and a long criminal record. The Court finds that he would benefit from a job training program run by the Bureau of Prisons and/or a job training program while on supervised release.
Finally under 18 USC § 3553 (a) 3 "the kinds of sentences available," the United States Sentencing Guidelines suggest a sentencing range for a Defendant with this criminal history and offense level to be 27 to 33 months. The United States Attorney argues that the Defendant should be sentenced to 37 months. Since the range the Defendant is already in is not very different that what the United States Attorney recommends, the Court declines to follow the United States Attorney's recommendation for all the reasons stated above.
In the Presentence Report the probation Officer also mentioned that the Defendant's mother passed away from cancer on May 23, 2006, while the Defendant was in custody for this charge, and that his father continues to need assistance due to his severe medical problems and that the Defendant's sisters are unable to lift the father if he falls. The Court has sympathy for the Defendant's family situation, but cannot overlook the Defendant's continuing pattern of carrying concealed weapons and possessing illegal drugs.
IT IS SO ORDERED.