Opinion
3:01 CR 0010 AS.
January 18, 2002
SENTENCING MEMORANDUM
I. Procedural History
The Defendant, Lawrence F. Whitmore, was charged in a one-count indictment returned by a grand jury in this district on March 15, 2001. He was taken into custody on March 23, 2001, and has been detained since that date. The Defendant pled guilty to Count One of the indictment on July 5, 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 Cocaine Base.
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 also agreed to make a non-binding recommendation to the court that any sentence imposed be at the minimum of the applicable guideline range, and a non-binding recommendation that the Defendant be given the maximum reduction in offense level for acceptance of responsibility, contingent upon his continued manifestation of acceptance of responsibility.
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 5.92 grams of crack cocaine, the Defendant's base offense level is twenty-six (26). 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).
On January 10, 2002, the government filed a Motion for Downward Departure pursuant to Section 5K of the Guidelines, and a Motion to Allow Sentence below the Mandatory Minimum, pursuant to Section 3553(E). The Court has reviewed the sealed Memorandum in Support provided by the government, and determined that a departure is warranted. Once the government has made a motion under § 5K1.1, the sentencing court has "broad discretion to depart from the guidelines after considering such factors as the `utility, reliability, risk, and timeliness' of the defendant's cooperation." U.S. v. Senn, 102 F.3d 327, 331 (7th Cir. 1996), quoting U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991).
The government's recommendation should be the starting point for the district court's analysis, based upon its evaluation of the assistance rendered. Id. In this case, the government has recommended a two (2) level departure, based upon its view that the information provided was truthful, candid, and complete. This brings the defendant's sentence below the statutory minimum, and seems an appropriate departure in light of the defendant's offense conduct. Therefore, the government's Motion for a two (2) level departure is GRANTED, making the Defendant's adjusted offense level a twenty-three (23).
The Defendant has five (5) criminal history points resulting in a criminal history category of III.
V. The Defendant's Sentence
With a total offense level of twenty-three (23) and a criminal history of III, the applicable Guideline range for imprisonment is 57-71 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 57 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 19 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. Also, the Court notes, in paragraph 2, that the period of supervised release is four (4) years, not two (2) as stated. The Defendant shall receive jail credit time for time served since his incarceration on March 23, 2001. In addition, the Defendant has an undischarged term of imprisonment in Indiana Docket Number 71D04-9611-CF-480 of one (1) year to be served on home detention. Pursuant to U.S.S.G. § 5G1.3(c), the Court orders this sentence to be served concurrently with the Defendant's state sentence in 71D04-9611-CF-480.
As the Defendant's sentence is below the statutory minimum of 60 months, the government's Motion to Allow Sentence below Mandatory Minimum is also GRANTED. 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.