Opinion
Case No. 99-40090-01-RDR.
March 5, 2001.
MEMORANDUM AND ORDER
On February 23, 2001, the court sentenced the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court at that hearing.
The defendant entered a plea of guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) on November 27, 2000. The defendant raised several objections to the presentence report.
CRIMINAL HISTORY POINTS FOR PRIOR SENTENCE
The defendant objects to the assignment of two criminal history points for a prior sentence in Shawnee County, Case No. 00-CR-1340. Relying upon United States v. Torres, 182 F.3d 1156 (10th Cir. 1999), the defendant argues criminal history points should not be included for this conviction because it arose out of the same conduct as the instant offense. The probation office contends that criminal history points should be added for this state conviction because that offense has not been used to enhance to the defendant's offense level. The government has not responded to this issue.
Having carefully reviewed the arguments of the defendant and the Tenth Circuit's decision in Torres, the court has determined that the government has not met its burden of demonstrating that the conviction in Case No. 00-CR-1340 is relevant conduct here. Accordingly, the court shall not apply two criminal history points for this conviction. With this decision, the defendant's criminal history category becomes V.
CRIMINAL HISTORY POINTS FOR TWO SEPARATE CONVICTIONS
The defendant objects to paragraphs 32 and 33 of the presentence report where he is assessed two criminal history points each for two separate convictions. The defendant contends that such action is improper where these two cases were jointly revoked upon a subsequent conviction. The probation office contends that the criminal history points that have been assessed are correct because the factual history shows that these two cases were not jointly revoked. The government has not responded to this issue.
The court is not persuaded by the defendant's argument. The court finds that the facts show that these two convictions were not jointly revoked. Accordingly, the assessment of points in the presentence report for these two convictions is proper.
REDUCTION BASED ON STATE SENTENCE
The defendant contends that his sentence in this case should be reduced by twelve months because he received a one-year sentence in state court for the conviction that arose from the events that led to this case. The defendant asserts that such a reduction is appropriate under U.S.S.G. § 5G1.3. In the alternative, the defendant contends that the court should depart downward to properly recognize the twelve-month sentence imposed by the state court. The probation office is not persuaded that any departure under the guidelines is appropriate or necessary. The government has not responded to this objection.
Having carefully reviewed the rather complex circumstances of this case, the court shall reduce the defendant's sentence by twelve months pursuant to U.S.S.G. § 5G1.3, application note 3. The court believes that justice is served by this reduction. The court intends to sentence the defendant at the low end of the guidelines, which is 84 months, and then reduce the defendant's sentence pursuant to § 5G1.3(c) to 72 months. The court shall order that this sentence run concurrently with his undischarged state court conviction.
IT IS SO ORDERED.