U.S. v. Fisher

• Decision Date: 10 January 2006
• Docket Number: No. CRIM.A. 05-12(GMS).,CRIM.A. 05-12(GMS).
• Citation: 421 F.Supp.2d 785
• Parties: UNITED STATES of America, v. Tracy Lamar FISHER.
• Court: U.S. District Court — District of Delaware

Page 785

421 F.Supp.2d 785

UNITED STATES of America, v. Tracy Lamar FISHER.

No. CRIM.A. 05-12(GMS).

United States District Court, D. Delaware.

January 10, 2006.

COPYRIGHT MATERIAL OMITTED

Adam Safwat, Assistant United States Attorney, Wilmington, DE, for United States of America.

Penny Marshall, Federal Public Defender, Wilmington, DE, for Defendant.

OPINION

SLEET, District Judge.

I. INTRODUCTION

On July 19, 2005, Tracy Lamar Fisher pleaded guilty to one count of unlawful possession of a firearm by a felon, in violation of 18 U.S.C.A. § 922(g)(1) (2000). The maximum term of incarceration authorized by statute for a violation of § 922(g)(1) is ten years. 18 U.S.C.A. § 924(a)(2) (2000). Presently before the court is a dispute between the parties as to the proper application of the United States Sentencing Guidelines.

II. BACKGROUND

At approximately 7:15 p.m. on January 15, 2005, Detective Jeffrey Silvers and Detective Andrea Janvier, both members of the Vice Unit (narcotics) of the Wilmington Police Department, were on "high visibility patrol"—meaning they were wearing regular police uniforms and driving in a marked police car—driving westbound on Fourth Street in downtown Wilmington. (Tr. at 16:12-17:7.)¹ As the detectives turned right from Fourth to North Adams Street, they were flagged down by a pedestrian. (Id. at 17:3-7.) The pedestrian pointed to two other pedestrians—later identified as Tracy Lamar Fisher and Rashee Lamont Hunter—walking northbound on North Adams, and informed Silvers and Janvier of his belief that Fisher and Hunter possessed a gun. (Id. at 19:23-20:4.) Upon receiving this information, Silvers and Janvier drove farther north and observed Fisher and Hunter turn eastbound on Fifth Street. (Id. at 20:18-23.) After a somewhat complicated chase, the details of which are unimportant here, the detectives ended up in a southbound footrace with Fisher and Hunter at the intersection of Fifth and North Adams. (Id. at 25:19-25.) Hunter led the way, followed by Fisher, Silvers, and Janvier. (Id. at 26:1-22.)

About one car length south of the intersection, in an area illuminated by a streetlight, only "four to six feet" separated Fisher and Silvers. (Id. at 26:8-11; 68:4-10; 69:2-10.) It was there that Silvers observed Fisher withdrawing a firearm— later identified as a .38 caliber Smith & Wesson revolver—from his waistband. (Id. at 27:18-20.) In response, Silvers withdrew his own firearm and pointed it at Fisher. (Id. at 28:3-5.) Although Fisher denies it, he allegedly pointed his firearm toward Silvers and started to apply pressure to the trigger. (Id. at 28:5-8.) Silvers began to apply pressure to his trigger as well, but ceased doing so after he saw Fisher loosen his grip and throw the revolver into the middle of North Adams. (Id. at 28:8-24.) Silvers then tackled and arrested Fisher. (Id. at 29:13-14.) The .38 thrown into the street was immediately recovered by another officer who had arrived at the scene. (Id. at 29:15-17.) It was found to be loaded with a bullet positioned to fire as soon as the trigger was pulled. (Id. at 40:12-41:2.) Fisher later pleaded guilty before this court to one count of unlawful possession of a firearm.

III. DISCUSSION

Although the maximum term of incarceration permitted by statute is ten years, the ranges prescribed by the Sentencing Guidelines vary from 30-37 months at the low end (based on Fisher's base offense level, minus three points for acceptance of responsibility), to 108-120 months at the high end (based on three enhancements urged by the Government). Fisher makes several factual and legal objections to the Government's position, and argues that the 30-37 month range is appropriate in this case. On October 17, 2005, the court held an evidentiary hearing for the purpose of receiving testimony regarding the pursuit and arrest. At the close of the hearing, the court opted to defer ruling on most of the contested issues, and instead, instructed the parties to brief their outstanding disputes. The court now rules in the manner described below.

A. Effect of Due Process on Judicial Factfinding

The process of sentencing a defendant in federal court is a methodical and deliberate process. Every defendant adjudged guilty of a federal crime is subject to a detailed presentence investigation conducted by a United States probation officer. The investigating officer then uses the facts acquired during the investigation to prepare a detailed report which provides the sentencing court with comprehensive information regarding the defendant's background and the nature of the offensive conduct leading to his conviction. The presentence investigation report is thus an invaluable tool for crafting a sentence tailored to the needs of both the defendant and society. Though invaluable, because it is the product of human endeavor, the presentence report is neither infallible, nor completely objective. However, the inherent subjectivity of that tool is counterbalanced by the objectivity of another sentencing tool at the court's disposal, namely, the United States Sentencing Guidelines. These Guidelines, promulgated by the United States Sentencing Commission, provide federal courts with a set of step-by-step sentencing instructions covering a myriad of differently-situated criminal defendants.

Although the Guidelines have an initially daunting quality, their application is relatively straightforward. See generally U.S. Sentencing Guidelines Manual § 1B1.1 (2004) (hereinafter USSG). For a given defendant, the Guidelines assign him a number, referred to as the base offense level, which represents the Sentencing Commission's assessment of the seriousness of his offense—the higher the number, the worse the crime. Id. § 1B1.1(a)-(b). The base offense level is then adjusted upwardly or downwardly to account for various circumstances surrounding the offense conduct. Id. § 1B1.1(c), (e). In making these adjustments, the court is often required to find additional facts, e.g., those revealed in the presentence investigation report, that have not been either admitted or found beyond a reasonable doubt by a jury, see id. § 6A1.3; Fed.R.Crim.P. 32(i)(3). After the proper adjustments are made, the result, frequently referred to as the total offense level, is used in conjunction with the defendant's criminal history category (also calculated by a process outlined in the Guidelines) to determine a prescribed range of incarceration. USSG § 1B1.1(f)(h); see also id. ch. 5, pt. A (Sentencing Table). Until recently, the court was statutorily prohibited from imposing a sentence outside that range. 18 U.S.C.A. § 3553(b)(1) (Supp.2005).² Under this mandatory regime, in which the prescribed range created de facto statutory minimum and maximum sentences, the court's traditionally broad discretion in sentencing matters was dramatically curtailed.

That all changed, however, with the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). There, the Court reaffirmed its Sixth Amendment holding in Apprendi v. New Jersey: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 125 S.Ct. at 756 (emphasis added); Apprendi, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This presented a constitutional conflict with the mandatory Guideline regime which, by allowing the prescribed sentencing range to shift upward upon the court's findings of fact, effectively authorized increased statutory maximum sentences based on facts neither admitted by the defendant, nor found by a jury. Not surprisingly, the Court held that the requirements of the Sixth Amendment must prevail. Booker, 125 S.Ct. at 755-56.

What was surprising about Booker (at least to some), was the Court's solution. Rather than engrafting a constitutional requirement onto the mandatory regime, the Court rendered the Guidelines advisory by severing and excising § 3553(b)(1). 125 S.Ct. at 756-57. The same fate befell 18 U.S.C.A. § 3742(e) (2000 & Supp.2005), which provides instruction to the courts of appeals on enforcing the mandatory Guideline ranges in their review of sentences imposed by district courts. Booker, 125 S.Ct. at 756-57. The Court further held that § 3553(a), the still-viable provision of law setting forth the factors to be considered in imposing a sentence, implies a "reasonableness" standard of appellate review.³ Booker, 125 S.Ct. at 765-66. The Booker solution thus presents a double-edged sword to criminal defendants. By restoring a significant portion of the court's traditional sentencing discretion, Booker lowered the hurdle for defendants seeking a sentence below the nowadvisory Guideline range. By the same token, Booker also insulated the court's findings of sentence-enhancing facts from Sixth Amendment challenge (insofar as the sentence imposed is within the range permitted by statute). Id. at 750 (Stevens, J., opinion of the Court) (stating that under an advisory Guideline scheme, "the defendant has no right to a jury determination of the facts that the judge deems relevant"); id. at 764 (Breyer, J., opinion of the Court) ("the existence of § 3553(b)(1) is a necessary condition of the constitutional violation"); cf. id. at 790 (Scalia, J., dissenting in part) ("The majority's remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing."). For better or for worse, that will remain the reality of the situation unless and until Congress determines to legislate to the contrary.

In apparent recognition of this reality, Fisher does not challenge the Government's proposed enhancements on Sixth...