U.S. v. Hammond

Decision Date07 January 2003
Docket NumberNo. 01-CR-108.,01-CR-108.
Citation240 F.Supp.2d 872
PartiesUNITED STATES of America, Plaintiff, v. Scott HAMMOND, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Carol L. Kraft, for Plaintiff or Petitioner.

Nila J. Robinson, for Defendant or Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Scott Hammond pled guilty to a charge of conspiracy to participate in an enterprise engaged in racketeering activity in violation of 18 U.S.C § 1962(d). The charges arose out of defendant's involvement with the Outlaws Motorcycle Club. Specifically, he participated in conspiracies to murder members of rival motorcycle clubs (although no one was actually harmed) and to distribute cocaine and marijuana (mostly to other members of the Outlaws).

A pre-sentence report (PSR) was prepared, which calculated defendant's offense level under the sentencing guidelines as 30 and his criminal history category as III. The propriety of those determinations is not in dispute, but defendant moves for a downward departure under U.S.S.G. § 4A1.3, arguing that his criminal history category substantially overstates the seriousness of his past criminal conduct. In this decision I address the motion.

I. FACTS

Defendant's criminal history score is based on three prior sentences. First, he was convicted of reckless use of a weapon and criminal damage to property in 1982.1 He was sentenced to 60 days in jail and 18 months probation, respectively. The offenses were consolidated2 and based on a single incident that occurred on January 18, 1982, in which defendant fired two shots from a shotgun, one of which struck a home. The PSR does not indicate that defendant was trying to harm anyone, and from what I have gathered from the parties' submissions, it appears that defendant was drunk and fired the weapon out of frustration when his car got stuck in the snow. Defendant received two criminal history points for these convictions.3

Second, defendant was convicted of drunk driving in 1982. It appears that this was a civil matter (as first offenses in Wisconsin are, see Wis. Stat. § 346.65(2)(a)),4 and that defendant received a fine. He also received one criminal history point for the conviction.

Finally, defendant was convicted of burglary in 1985 and sentenced to four years prison, stayed in favor of four years probation, with four months jail as a condition.5 The PSR indicates that this conviction arose out of defendant's attempt, foiled by police, to steal cartons of cigarettes from a gas station. Defendant indicates that he was again drunk at the time. This conviction counted for two points.

Defendant thus has five criminal history points, which places him in category III.6 The parties do not dispute that all of these convictions are properly counted under § § 4A1.1 & 4A1.2. However, the Commission has provided district courts with substantial discretion to depart from the otherwise applicable criminal history category under the appropriate circumstances.

II. DISCUSSION
A. Section 4A1.3 Departures

Section 4A1.3 of the guidelines provides:

If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range.

There may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes. An example might include the case of a defendant with two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. The court may conclude that the defendant's criminal history was significantly less serious than that of most defendants in the same criminal history category (Category II), and therefore consider a downward departure from the guidelines.

It is important to note that a § 4A1.3 departure is not the same type of departure as referred to in 18 U.S.C. § 3553(b) and chapter 5 (specifically § 5K2.0) of the guidelines manual. See United States v. Shoupe, 988 F.2d 440 444-45 (3d Cir.1993); United States v. Lacy, 99 F.Supp.2d 108, 121 n. 28 (D.Mass. 2000). Under those provisions, departures are permitted only when "`the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' " Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting 18 U.S.C. § 3553(b)).

While the Commission has provided some guidance in making departure decisions under chapter 5 by listing certain factors that are "forbidden," "encouraged," and "discouraged" bases for departure, id. at 93-95, 116 S.Ct. 2035, departures under § 5K2.0 will often be based on circumstances peculiar to the case that the Commission did not (and could not) consider in formulating the guidelines. Indeed, the court may not depart if the Commission has taken the proposed factor into account in setting the sentence for the particular offense, unless the factor is present to such an unusual degree as to take the case out of the "heartland" of cases.7 Moreover, such departures are "unguided" in that the Commission has not dictated to what extent a court should depart after it determines that departure is appropriate.8 Finally, such departures are usually made along the vertical (offense level) axis of the sentencing grid.

By contrast, in § 4A1.3, the Commission specifically provided district courts with flexibility to adjust the criminal history category calculated through the rigid formulae of § 4A1.1 or § 4B1.1 "if reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. § 4A1.3. Section 4A1.3 is both structurally and in its purpose unlike § 5K2.0 and 18 U.S.C. § 3553(b), which allow district courts to depart from the sentencing range calculated under the Guidelines for mitigating circumstance not adequately considered by the Commission in formulating the Guidelines.

Shoupe, 988 F.2d at 445.9

First, unlike chapter 5 departures, the court need not determine that some unusual or extraordinary factor justifies a criminal history departure under § 4A1.3. This is so because the Commission has recognized the inherent limitations in the mathematical approach to criminal history it has adopted. See U.S.S.G. § 4A1.3 (background commentary) ("[T]he criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur.") (emphasis added). Therefore, the Commission has provided district courts with specific authority to make "adjustments" 10 in the criminal history category based only on "reliable information." The information need not be sufficient to take the case out of the "heartland" of cases—only "reliable"—and indicative of either (1) a significant over-representation of the seriousness of the defendant's criminal history or (2) the likelihood that the defendant will commit further crimes.11 U.S.S.G. § 4A1.3, 113.

Thus, the discretion possessed by the district court under this provision is very broad; if one were to use Koon's terminology, § 4A1.3 departures would have to be considered "encouraged." United States v. Wilkerson, 183 F.Supp.2d 373, 380 (D.Mass.2002); see Spencer Freedman, In Defense of Crimimal History Departures, 13 Fed. Sen. Rptr. 311, 313 (May/June 2001) ("In promulgating § 4A1.3, the Commission established an enormous reservoir of judicial discretion to achieve the purposes of sentencing....").

Second, the court bases its decision on information—prior convictions—that has already been taken into account in calculating the sentence under the guidelines. The court is also able to consider facts and circumstances that may be barred (or at least discouraged) from consideration in a § 5K2.0 departure. See Shoupe, 988 F.2d at 447 ("We hold that as the plain language of § 4A1.3 provides, a district court considering a § 4A1.3 departure may weigh `reliable information [that] indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes,' U.S.S.G. § 4A1.3, including factors which the Commission may have otherwise considered in promulgating other provisions of the Guidelines.").

Third, these departures are "guided" in that the Commission has instructed courts to place the defendant in the criminal history category that most accurately reflects the seriousness of his prior record. Finally, the court usually moves horizontally on the sentencing rid.12

Therefore, "section 4A1.3 manifests the Commission's view that a sentencing judge should exercise discretion whenever the judge concludes that the consequences of the mathematical prior-history calculation, prescribed by sections 4A1.1 and 4A1.2, either underrepresent or overrepresent the seriousness of a defendant's prior record." United States v. Rivers, 50 F.3d 1126, 1131 (2d Cir.1995). There can be no exhaustive list of factors the court should consider in determining whether the seriousness of a defendant's criminal history or the likelihood of recidivism is over-represented by his designated category. As Judge Gertner has noted, "Criminal history departures permit a court to put the defendant's record in the context of his life and background." Wilkerson, 183 F.Supp.2d at 380. Every defendant is different and must be considered as an individual.

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