Opinion
Case No. 08-10144-02-WEB.
January 11, 2010
MEMORANDUM AND ORDER
Before the court is the defendant, Herb Leeper, for sentencing. The defendant entered a guilty plea to Count 1, Impersonating an Employee of the United States, in violation of 18 U.S.C. § 912, and Count 2, Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c). The probation office completed a presentence report, and the defendant filed one objection. The Government filed a Motion pursuant to U.S.S.G. § 5K1.1. (Doc. 75). The Court orally ruled on the objection and the motion in the sentencing hearing. This Memorandum and Order supplements the Court's oral ruling.
The defendant argues that there is a factual basis for consideration of both a U.S.S.G. § 5K2.10 victim conduct departure, and a U.S.S.G. § 5K2.11 lesser harms departure. Under § 5K2.10, the defendant argues the victim's conduct significantly contributed to provoking the offense behavior. The defendant argues the victim is the bookkeeper. The defendant also argues § 5K2.11 is applicable because he committed the crime to avoid a perceived greater harm.
The defendant has not shown a departure is warranted under either § 5K2.10 or § 5K2.11. The victim in this case is the IRS, not his bookkeeper. The defendant has not presented facts sufficient to show that his conduct was a direct result of a perceived greater harm. The defendant ignores the facts that there were legal steps he could have taken to obtain records. The defendant's objection is denied.
After the court ruled on the defendant's objection, the defendant orally moved to withdraw the objection. The court granted the motion.
IT IS THEREFORE ORDERED the defendant's objection to the presentence report is DENIED as moot.
IT IS ORDERED the Government's Motion Pursuant to U.S.S.G. § 5K1.1 (Doc. 75) is GRANTED.
IT IS SO ORDERED.