Opinion
No. 04-40003-01-SAC.
April 13, 2005
STATEMENT OF REASONS FOR SENTENCE
On December 13, 2004, a jury found the defendant guilty of the single count indictment which charged him with distribution of cocaine base. The presentence report (PSR") prepared in this case recommends a guideline sentence of 262 to 327 months based on a total offense level of 34 (applying the career offender enhancement in U.S.S.G. § 4B1.1 based on three residential burglary convictions that meet the definition of a "crime of violence") and a criminal history category of VI (24 criminal history points or the career offender guideline in § 4B1.1). Had the PSR not classified the defendant as a career offender, the recommended guideline sentencing range would have been 120 to 150 months based on a total offense level of 26 and a criminal history category of six.
On March 4, 2005, the court filed its ruling on the defendant's two unresolved objections to the PSR, and the result was no change to the PSR's recommended application of the sentencing guidelines. At the sentencing hearing on March 29, 2005, the government observed there were reasonable grounds for the court to reconsider its ruling that denied the defendant an adjustment for acceptance of responsibility. The government also offered that it understood the court's discretion after United States v. Booker, 125 S. Ct. 738, 2005 WL 50108 (Jan. 12, 2005), in treating the sentencing guidelines as advisory. The defendant pointed to the court's responsibility in fashioning a sentence that is "sufficient, but not greater than necessary, to comply with the purposes set forth in" 18 U.S.C. § 3553(a)(2). Conceding that the government had offered him prior to trial a plea agreement resulting in a substantially shorter sentence, the defendant cited his concern over possibly losing custody of his two young children as the driving factor in his decision to reject the government's offer and to proceed to trial. The defendant referred to the shorter federal sentences of imprisonment recently imposed on his father and uncle for similar drug trafficking offenses. The defendant also asked the court to reconsider its ruling on the acceptance of responsibility adjustment and to sentence him near the lower end of the statutory range of incarceration. After the parties' arguments, the court took the matter under advisement to consider these matters, continued the sentencing, and announced it would file a statement of reasons in advance of the sentencing.
In United States v. Booker, 125 S. Ct. 738, 2005 WL 50108 (Jan. 12, 2005), the Court found the mandatory enforcement of the United States Sentencing Guidelines to be unconstitutional but preserved the guideline sentencing scheme by severing those provisions of the Sentencing Reform Act that made the guidelines mandatory. Consequently, the guidelines are now "effectively advisory," 125 S. Ct. at 757, and the standard of appellate review is no longer de novo but reasonableness. As modified, the Act now "requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see 3553(a) (Supp. 2004)." Id. Put another way, sentencing courts, "while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing. See 18 U.S.C.A. §§ 3553(a)(4), (5) (Supp. 2004)." Id. at 767.
By the terms of 18 U.S.C. § 3553(a), the court must arrive at and "impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing set forth" here:
(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 of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.18 U.S.C. § 3553(a)(2). In doing so, the court is called upon by statute to consider these other relevant factors:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
. . . .
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). Thus, § 3553(a) instructs a sentencing court to consider the established guideline sentencing range, listed as (4), as simply one of the statutory factors relevant in arriving at sentencing.
The PSR recommends that the defendant be treated as a career offender based on three prior convictions of a crime of violence, namely convictions for burglary and attempted burglary of a residence in 1993, 1995 and 1996. Under the guidelines, a career offender is someone who was at least eighteen years old when he committed the offense of conviction which is either a crime of violence or a controlled substance violation and who has at least two prior felony convictions of either a crime of violence or a controlled substance violation. U.S.S.G. § 4B1.1(a). The guidelines define a "crime of violence" as an offense that carries a punishment of more than one year of imprisonment and that "has an element the use, attempted use, or threatened use of physical force against the person of another, or is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a). Application Note one elaborates on this definition:
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
There is no question but that the defendant has prior felony convictions for burglary of a dwelling, an offense that under the guidelines is treated as a crime of violence. The court believes, however, there are other considerations unique to this case that impel tailoring a sentence below the career offender guideline range.
In listing burglary of a dwelling as a crime of violence, the concern plainly was that this offense necessarily carried a serious potential risk of injury to another. With two of the defendant's prior burglaries, as described in the PSR, the defendant did encounter persons at the dwellings during the burglaries, but no injury or harm occurred as the defendant simply fled. Though injury certainly is not a prerequisite to treating a burglary conviction as a crime of violence, the defendant's commission of these burglaries was not attended by the risk of violence or injury to others necessarily assumed by these guideline provisions, as evidenced by the defendant's very actions in at least two of the burglaries. In addition, the defendant committed all three burglaries during a three-year period while he was not yet twenty-five years old. The last burglary was committed almost seven years before the offense of conviction, and the defendant received a sentence of just twelve-months custody. None of the three burglaries involved a substantial property loss to the victim. The defendant's criminal history includes no prior drug offense convictions. In short, the defendant is a "small-time" burglar facing a federal sentence of nearly twenty-two years for his first drug conviction. This unique combination of these circumstances convinces this court that a blanket regard for the career offender guidelines would be inappropriate here.
The nature and circumstances of the defendant's offense, as well as its seriousness, are not what one would expect to result in a sentence in excess of twenty years. The evidence at trial was that the government informant was an acquaintance of the defendant's family and telephoned the house where the defendant and others lived to arrange the purchase of cocaine base. After the call, the defendant eventually delivered 8.59 grams of cocaine base to the informant's residence. When the informant made subsequent attempts to purchase additional cocaine base from the defendant, no sales of controlled substances took place. There is nothing of record from which to infer from this single transaction that the defendant regularly sold any significant quantities of cocaine base.
The defendant is thirty-three years old and single, but he has two young children whose ages are under three years. According to the defendant, the mother abandoned these children, and he went to trial in order to keep from losing custody of them to the maternal grandmother. In spite of his circumstances, the defendant seems genuinely concerned about his children's welfare and his role in raising them.
A sentence strictly in accord with the career offender guidelines would result in serious sentence disparities among defendants found guilty of similar conduct. The defendant's father, Alvin Corber, pleaded guilty to selling cocaine base to the government informants approximately one month after the defendant's sale. Alvin Corber sold cocaine base that totaled 8.17 grams in two transactions conducted on the same day. Unlike his son, Alvin Corber's criminal history score was a category two with only one felony conviction for aggravated battery. The federal court sentenced Alvin Corber to 60 months. The defendant's uncle, Robert Corber, was charged with two counts of selling cocaine base to government informants one month after the Terry Corber's sale. Robert Corber pleaded guilty to one of those counts and was sentenced to 37 months based on 11.58 grams of cocaine base. Unlike his nephew, Robert Corber's criminal history score was a category one entitling him to a safety valve reduction, as his prior burglary conviction was not within the ten-year window. The evidence at trial suggested that the defendant's uncle and father were more actively involved in the ongoing distribution of cocaine base and that the informants had closer relationships to them. The evidence considered at their sentencing hearings showed that both made more than one sale of cocaine base to the informants. Even so, the defendant appropriately faces a much longer prison term just because of his criminal history. The defendant's sentence would be twice as long as his father's sentence without considering the career offender provisions and over four times longer by applying them. The court is convinced that a sentence over four times longer than his father and seven times longer than his uncle would result in an unwarranted disparity even taking into consideration the defendant's extensive criminal history as a burglar.
The defendant's criminal history shows that he has little respect for the property rights of others, that shorter terms of state incarceration have not deterred his criminal activities even while the defendant was on parole supervision, and that the defendant remains a risk to public safety. With that said, the court has not lost sight of what is to happen here. The defendant is to be sentenced for a single violation of a drug trafficking statute.
After balancing all of these considerations, the court finds that a sentence of 136 months which is below the guideline range required by the career offender provisions but which falls in the upper half of the guideline range established by giving full weight to the defendant's criminal history (offense level of 26 and criminal history category of six) would be sufficient but not greater than necessary to meet the different purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). The defendant shall appear for imposition of his sentence on April 21, 2005, at 11:00 a.m.
IT IS SO ORDERED.