Opinion
No. 03-40105-01-SAC
March 16, 2004
RULING ON DEFENDANT'S MOTION FOR DOWNWARD DEPARTURE
The defendant pleaded guilty to aggravated re-entry by deported felon in exchange for the government's agreement, in part, to recommend the maximum reduction for acceptance of responsibility and a sentence at the low end of the applicable guideline range. The Presentence Report ("PSR") recommends a base offense level of 8, a 16-level increase because of a felony conviction that is a crime of violence, and a three-level reduction for acceptance of responsibility resulting in a total offense level of 21. Using a criminal history category of three, the PSR determines the applicable sentencing guideline range to be 46 to 57 months.
The defendant seeks a downward departure arguing that a criminal history category of three over-represents the seriousness of the defendant's criminal history. U.S.S.G. § 4A1.3(b)(1) provides that "[i]f reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted." In short, "[t]he purpose of U.S.S.G. § 4A1.3 is to allow a district court to deviate from the otherwise applicable guideline range where a defendant's criminal history, likelihood of recidivism, or both, differ significantly from the typical offender for whom the Sentencing Commission formulated the applicable criminal history category." United States v. Caldwell, 219 F.3d 1186, 1195 (10th Cir. 2000) (citation omitted). In the case of a downward departure, the sentencing court must specify in writing "the specific reasons why the applicable crimnal history category substantially over-represents the seriousness of the defendant's criminal history." U.S.S.G. § 4A1.3(c)(2). The sentencing court is prohibited from departing below the lower limit of the guideline range using a criminal history category of one. U.S.S.G. § 4A1.3(b)(2)(A).
The defendant's criminal history category is based on a single conviction in 2000 for statutory rape and his return to the United States while he was on probation for that offense. Because statutory rape is considered a crime of violence, the Sentencing Guidelines required a sixteen-level increase. Thus, this single conviction has substantially impacted the calculation of the defendant's guideline sentence. The defendant and the victim of the statutory rape case are now married and recently became parents to their first child. The victim's mother consented to the defendant marrying her minor daughter and has written the court asking for the court's leniency. Considering the unique circumstances of this prior conviction, its impact on the defendant's sentence, and the defendant's actions in marrying and caring for the victim of the prior conviction, the court concludes that together they are a permissible and sufficient basis for removing the defendant from the heartland of other defendants who have a criminal history category of three. The court additionally finds that a criminal history category of three substantially over-represents the likelihood that the defendant will commit other crimes. As for the degree of the downward departure, the Tenth Circuit has required that "the district court must specifically articulate reasons for the degree of departure using any reasonable methodology hitched to the Sentencing Guidelines, including extrapolation from or analogy to the Guidelines." United States v. Hannah, 268 F.3d 937, 941 (10th Cir. 2001) (internal quotation marks and citations omitted). The court believes a departure to a criminal history category of one is appropriate in that the unique circumstances of this prior conviction are overshadowed by the sixteen-level increase in offense level and that a category one best reflects the defendant's likelihood of committing other crimes. Thus, the court grants the defendant's request for a downward departure to criminal history category of one and a sentencing guideline range of 37 to 46 months.