Opinion
3:01 CR 0048 AS.
January 18, 2002
SENTENCING MEMORANDUM
I. Procedural History
The Defendant, David Eugene Gilson, was charged in Counts One and Two of a two-count indictment returned by a grand jury in this district on July 11, 2001. He was arrested and has been continuously detained since July 20, 2001. On August 8, the Defendant was charged in Counts One and Two of a superseding indictment. The Defendant pled guilty to Count One of the superseding indictment on November 8, 2001. Count One charges the Defendant with a violation of 21 U.S.C. § 841(a)(1), Possession with Intent to Distribute in Excess of Five Grams of Methamphetamine.
Because the offense occurred after November 1, 1987, the Sentencing Reform Act of 1984 and the United States Sentencing Commission Guidelines (Guidelines), as amended November 1, 2001, apply to this sentencing, pursuant to Miller v. Florida, 482 U.S. 423 (1986). However, because the offense conduct took place before November 1, 2001, the effective date for the current Guidelines, a comparison has been made between the relevant Guidelines and this Court has determined that there are no differences between the two Guideline calculations for purposes of this sentencing.
II. The Presentence Report
The Defendant, defense counsel, and the government have reviewed the presentence report, as has the Court. The parties have no objections to the presentence report. All paragraphs of the presentence report not specifically addressed in this Memorandum are adopted by the Court as findings of fact and statements of reason for imposition of sentence in this case.
III. The Plea Agreement
The Defendant and the government entered into a plea agreement in which the Defendant agreed to plead guilty to Count One of the indictment. The Defendant understands the maximum possible penalties for this offense, that it has a mandatory minimum sentence of five years, and that he will be sentenced pursuant to the Sentencing Guidelines. With this understanding, the Defendant has agreed to waive his right to appeal this sentence on any ground, and has agreed that he will not contest this sentence or the manner in which it was determined in any post conviction proceedings.
The government agreed to dismiss the remaining count of the indictment at the time of sentencing. The government also agreed to make a non-binding recommendation that the Defendant be given the maximum reduction in offense level for acceptance of responsibility, and a binding recommendation to the court that any sentence imposed be at the minimum of the applicable guideline range. In addition, the government agreed to make a non-binding recommendation that the defendant be placed at a Bureau of Prisons facility that offers a drug treatment program.
IV. The Defendant's Offense Level
The Guideline for a violation of 21 U.S.C. § 841(a)(1) is found in U.S.S.G. § 2D1.1(a). Based on a drug quantity of thirteen grams of methamphetamine, the Defendant's base offense level is twenty-six (26). U.S.S.G. § 2D1.1(c)(7). A two (2) level enhancement is warranted under U.S.S.G. § 2D1.1(b)(1) because the Defendant possessed a firearm at the time of his arrest. This gives the Defendant an adjusted offense level of twenty-eight (28).
Under Guideline U.S.S.G. § 3E1.1(a) and (b), and pursuant to the plea agreement, the Court finds that a three (3) level reduction for acceptance of responsibility is warranted, giving the Defendant an adjusted offense level of twenty-five (25).
The Defendant has a total of six (6) criminal history points resulting in a criminal history category of III.
V. The Defendant's Sentence
With a total offense level of twenty-five (25) and a criminal history of III, the applicable Guideline range for imprisonment is 70-87 months. The Defendant is not eligible for probation as the offense is one for which probation has been expressly precluded by statute. Pursuant to the plea agreement, the Defendant is sentenced to a term of 70 months, to be followed by four (4) years of supervised release as required by 21 U.S.C. § 841(b)(1)(B) and U.S.S.G. § 5D1.2(b).
The conditions of supervised release shall include the fifteen (15) standard conditions as listed under U.S.S.G. § 5D1.3(c), as well as the additional conditions listed on page 17 of the pre-sentence report, with the exception of the requirement that the Defendant not consume alcoholic beverages. As the offense is not alcohol related, the "no excessive use of alcohol" language in standard condition 7 will be used instead. The Defendant shall receive jail credit time for time served since his incarceration on July 20, 2001. The court finds that this sentence sufficiently punishes this Defendant for his criminal conduct and therefore satisfies the purposes of sentencing as set forth in 18 U.S.C. § 3553(a).
VI. Fines, Restitution, Fees
The applicable fine range under U.S.S.G. § 5E1.2(c)(4) is from $10,000 to $2,000,000. Based on the defendant's financial information, the court imposes no fine. The court must and does assess a special assessment fee of $100.
The clerk shall prepare judgment. The clerk shall also provide a copy of this Sentencing Memorandum to the United States Probation Department for forwarding to the United States Sentencing Commission.
IT IS SO ORDERED.