Opinion
No. 01-40064-01-SAC.
October 31, 2001.
MEMORANDUM AND ORDER
This case is before the court on an appeal of the sentence imposed by the United States Magistrate Judge. Defendant/Appellant Paul N. Graham was sentenced to four months of incarceration after pleading guilty to driving with a suspended or revoked state operator's license on federal land (Fort Riley, Kansas), in violation of 18 U.S.C. § 13, referencing K.S.A. 8-262. Graham now asserts that the Magistrate Judge abused his discretion in imposing an "unnecessarily harsh and excessive" sentence of four months, and that this court should remand the case with instructions to sentence the defendant to time already served.
Defendant was convicted of a federal crime in violation of the Assimilative Crimes Act, 18 U.S.C. § 13 (hereinafter referred to as "Act"). The Act requires that any sentence imposed must be a "like punishment." 18 U.S.C. § 13. This has been interpreted to mean that "the [Act] requires courts to impose sentences for assimilative crimes that fall within the maximum and minimum terms established by state law." United States v. Garcia, 893 F.2d 250, 251-52 (10th Cir. 1989).
The Federal Sentencing Guidelines apply to cases brought under the Act. See United States v. Thomas, 68 F.3d 392, 394 (10th Cir. 1995). Under § 1B1.2 of the Federal Sentencing Guidelines, the court must determine the offense guideline section most applicable to the offense of conviction. If there is no applicable or analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control. U.S.S.G. § 2X5.1. In the case at hand there is no applicable or analogous Federal Sentencing Guideline for the court to apply; therefore, this court "shall determine whether the sentence . . . was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." 18 U.S.C. § 3742(e)(4).
The first step in reviewing the sentence is to determine whether it falls outside the maximum or minimum range established by state law. Garcia, 893 F.2d at 251-52. The sentencing range established by Kansas state law for the offense of conviction is a minimum of five (5) days and a maximum of one (1) year. K.S.A. 8-262; K.S.A. 21-4502(a). Therefore, the four month sentence imposed by the Magistrate Judge is within the range provided by Kansas law. Defendant does not dispute this.
Though he concedes the lawfulness of the sentence, defendant argues the sentence is unreasonable simply because he believes it is longer than the normal or average sentences imposed for equivalent crimes. Defendant asserts that "there is nothing about [his] offense of conviction to warrant the imposition of such a disparate sentence." (Dk. 8, 3rd unnumbered page.) Defendant fails to recognize, however, that the Magistrate Judge is not limited to considering merely the offense of conviction in determining the length of sentence.
"In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2)." 18 U.S.C. § 3553(b). This court has found the § 3553 factors, relevant to this case, to be: (1) the history and characteristics of the defendant; (2) the need to promote respect for the law; (3) the need to provide just punishment for the offense; and (4) the need to afford adequate deterrence to criminal conduct. 18 U.S.C. § 3553(a).
Therefore, in order to determine if the sentence imposed was plainly unreasonable, this court must ascertain whether there were circumstances warranting a sentence of four months. To make the determination, this court must look to the Magistrate Judge's analysis of the facts of the case and the application of the § 3553 factors. Defendant points out, however, that the Magistrate Judge failed to state his reasons for imposing the sentence as required by 18 U.S.C. § 3553(c), thereby depriving this court of the ability to meaningfully review the sentence. "[A]bsent a contrary indication in the record, this court will assume that a district court weighed each of the sentencing factors set forth in § 3553(a) in exercising its discretion pursuant to § 3584, even where the district court does not explicitly so state at the sentencing hearing or in its order." United States v. Rose, 185 F.3d 1108 (10th Cir. 1999). "[I]n reviewing the specific sentence of imprisonment imposed by the [Magistrate Judge] . . ., we will not reverse if it can be determined from the record to have been reasoned and reasonable." United States v. Lee, 957 F.2d 770, 774 (10th Cir. 1992). Upon reviewing the record, this court has found nothing to contradict the reasonable assumption that the Magistrate Judge weighed the relevant factors set forth in § 3553(a) in arriving at the defendant's sentence.
Further, this court has determined from the record that the Magistrate Judge considered the following facts in making the sentencing determination: (1) defendant failed to cooperate with the Probation Officer regarding the presentence report; (2) defendant failed to comply with the conditions of his release on bond by declining to report to the Probation Officer twice a week and failed to comply with the conditions of his Geary County probation; (3) defendant failed to appear for his original sentencing date; and (4) defendant failed to appear for subsequent sentencing hearing, after promising the Magistrate Judge that he would appear for sentencing on June 7, 2001, requiring a deputy United States Marshal to arrest him and bring him to court in custody. These facts, considered by the Magistrate Judge in light of the sentencing factors in § 3553(a), are sufficient for this court to conclude that the sentence imposed was "reasoned and reasonable" and to demonstrate for this court a reasonable need to extend the term of incarceration beyond what defendant deems "normal" or "average." Furthermore, defendant could have been charged with a violation of 18 U.S.C. § 3146, for failing to appear at both of his sentencing hearings. Such a charge could have potentially generated up to another consecutive year of imprisonment. This fact tends to shed further light upon the reasonableness of the Magistrate Judge's sentence. Therefore, this court finds the sentence imposed by the Magistrate Judge to not be "plainly unreasonable" and affirms the Magistrate Judge's decision.
IT IS THEREFORE ORDERED THAT defendant's appeal to remand the case with instructions to sentence defendant to time already served (Dk. 8) is denied.