Opinion
Criminal Action No. 10-cr-00461-REB
08-05-2011
UNITED STATES OF AMERICA, Plaintiff, v. 1. DAVID BLEA, Defendant.
Ryan Bergsieker Michael Dowling
Judge Robert E. Blackburn
Courtroom Deputy: Nel Steffens
Court Reporter: Suzanne Claar
Probation Officer: Jan Woll
Counsel:
Ryan Bergsieker
Michael Dowling
SENTENCING MINUTES
1:39 p.m. Court in session.
Appearances of counsel.
Defendant is present in custody.
Court's opening remarks. Court notes that counsel conferred informally in chambers prior to commencement of these proceedings.
Pursuant to 18 U.S.C. § 3552 and Fed.R.Crim.P. 32, the Probation Department has conducted a presentence investigation and has filed a presentence report and three addenda.
Counsel for the government confirms that counsel has read the presentence report and addenda.
Counsel for the defendant informs the Court that counsel has read and discussed the presentence report and addenda with the defendant.
Defendant's counsel makes a statement on behalf of the defendant, offers information in mitigation of punishment, comments on the probation officer's sentencing guideline applications and calculations, and comments on matters relating to the appropriate sentence.
Defendant is sworn.
Statement by the defendant.
Statement by counsel for the government.
The Court has considered all relevant matters of fact and law, including the following:
• The parties' plea agreement under USSG § 6B1.2, including the parties' written stipulation of facts relevant to sentencing under USSG § 6B1.4(a);The Court makes a sentencing statement pursuant to 18 U.S.C. § 3553(c) and enters findings of fact, conclusions of law, judgment of conviction, sentence, and orders.
• The nature and circumstances of the offense(s) - focusing on "the real conduct" - for which the defendant is being sentenced;
• The history and characteristics of the offender;
• The authorized sentences under 18 U.S.C. § 3551;
• The presentence report and any addendum;
• The basic purposes of criminal punishment: deterrence; incapacitation; just punishment; and rehabilitation as declared in the Sentencing Reform Act of 1984;
• The purposes and goals of sentencing as prescribed by Congress at 18 U.S.C. § 3553(a)(2);
• The factors to be considered in imposing sentence pursuant to 18 U.S.C. §§ 3582(a) and 3553(a)(1)-(7);
• The constitutional and relevant provisions of the advisory USSG;
• The kinds of sentence and the sentencing range established under the USSG for the applicable category of offense committed by the applicable category of defendant pursuant to 18 U.S.C. § 3553(a)(4);
• The need to avoid unwarranted sentencing disparities by "ensuring similar sentences for those who have committed similar crimes in similar ways," Booker;
• The need to restitute victims;
• The pertinent policy statements of the US Sentencing Commission;
• The need to impose sentences that satisfy the needs and requirements of 18 U.S.C. § 3553(a)(2);
• The advancement of the seminal congressional goals of honesty, uniformity, and proportionality in sentencing;
• The principle and requirement codified at 18 U.S.C. § 3553(a), to impose a sentence that is sufficient, but not greater than necessary, to achieve the
congressional goals and purposes of sentencing;
• The propriety or necessity of imposing concurrent or consecutive sentences after considering the provisions of 18 U.S.C. § 3584(a) and (b);
• The position of the government, the defendant, and the probation department;
• The evidence presented, reasons stated, arguments advanced, authorities cited by the parties in their papers and during their oral argument and presentation.
IT IS ORDERED as follows:
1. That the plea agreement of the parties as presented in Court's Exhibits 1 and 2 is formally approved;The Defendant is advised of the right to appeal the sentence imposed by the Court.
2. That the pending motions are resolved as follows:
• the United States' Motion To Dismiss Count Two of the Indictment at Time of Sentencing [#31] filed May 9, 2011, is GRANTED;3. That judgment of conviction under Fed.R.Crim.P. 32(k) is entered on Count One of the Indictment;
• the United States' Motion Under U.S.S.G. 3E1.1(b) for 1-Level Reduction in Defendant's Offense Level for Acceptance of Responsibility [#32] filed May 9, 2011, is GRANTED;
• the defendant's Motion for Downward Variance [#37] filed May 19, 2011, is DENIED;
4. That pursuant to the Sentencing Reform Act of 1984, it is the judgment and sentence of this court that the defendant is committed to the custody of the Bureau of Prisons to be imprisoned for a term of seventy (70) months;
5. That on release from imprisonment, the defendant shall be placed on supervised release for a term of four (4) years; provided furthermore, that within 72 hours of defendant's release from imprisonment and the custody of the Bureau of Prisons, the defendant shall report in person to the U.S. probation department within the district to which he is released;
6. That while on supervised release, the defendant shall comply with the following conditions of supervised release:
• all mandatory conditions of supervised release, prescribed by law at 18 U.S.C. § 3583(d) and USSG §5D1.3(a);7. That no fine is imposed;
• all standard conditions of supervised release approved and imposed by this court in all such cases and circumstances; and
• the following explicit or special conditions of supervised release:
• that the defendant shall not violate any federal, state, or municipal statute, regulation, or ordinance in any jurisdiction or place where defendant may be during the term of supervised release;
• that the defendant shall not possess or use illegally controlled substances;
• that the defendant shall not possess or use any firearm or destructive device as defined under federal law at 18 U.S.C. § 921;
• that the defendant shall cooperate in the collection of a sample of defendant's DNA;
• that the defendant shall submit to one drug test within fifteen (15) days from defendant's release from imprisonment, as directed by the probation department, and thereafter, to at least two periodic tests for the use of controlled substances as directed and determined by the court;
• that at defendant's expense, the defendant shall, unless then indigent, undergo an alcohol/substance abuse evaluation, and thereafter, at defendant's expense receive any treatment, therapy, counseling, testing or education prescribed by the evaluation or as directed by defendant's probation officer or as ordered by the court; that defendant shall abstain from the use of alcohol or other intoxicants during the course of any such treatment, therapy, counseling, testing, or education; provided, furthermore, that to ensure continuity of treatment, the probation department is authorized to release mental health records and reports of the defendant and the PSR to any person or entity responsible for or involved in the treatment of the defendant;
8. That the defendant shall pay forthwith a special victim's fund assessment fee of $100.00;
9. That an order and judgment of forfeiture shall be entered pursuant to the Plea Agreement of the parties, pursuant to the admission by the defendant of the forfeiture allegation in the Indictment, and pursuant to Fed.R.Crim.P. 32.2(b)(3) and 21 U.S.C. § 853(p);
10. That presentence confinement credit shall be determined by the Bureau of Prisons under 18 U.S.C. § 3585;
11. That this court recommends that the Bureau of Prisons designate the defendant to a correctional institution in or near the State and District of Colorado which will facilitate his participation in and completion of RDAP; and
12. That the defendant is remanded to the custody of the United States Marshal.
2:25 p.m. Court in recess.
Total time in court: 00:46
Hearing concluded.