U.S. v. Flores, CR01-3052-MWB.

• Citation: 223 F.Supp.2d 1016
• Decision Date: 11 September 2002
• Docket Number: No. CR01-3052-MWB.,CR01-3052-MWB.
• Parties: UNITED STATES of America, Plaintiff, v. Mingo FLORES, Defendant.
• Court: United States District Courts. 8th Circuit. Northern District of Iowa

Page 1016

223 F.Supp.2d 1016

UNITED STATES of America, Plaintiff, v. Mingo FLORES, Defendant.

No. CR01-3052-MWB.

United States District Court, N.D. Iowa, Central Division.

September 11, 2002.

Charles J. Williams, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff.

Priscilla Elizabeth Forsyth, Federal Public Defender, Sioux City, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S SENTENCE

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I.  INTRODUCTION .............................................................. 1017
                    A. Procedural Background .................................................. 1017
                    B. Factual Background ..................................................... 1018
                

                II. DISCUSSION ................................................................ 1019
                    A. Horizontal Departure: Adequacy Of Criminal History Category ............ 1020
                       1. Is criminal history category IV an accurate reflection of the
                seriousness of Flores's past criminal conduct? .................... 1021
                       2. Likelihood Flores will commit other crimes ........................... 1023
                       3. Extent of horizontal departure ....................................... 1026
                    B. Vertical Departure Pursuant To 5K2.0 .................................... 1027
                       1. Is Flores's case outside the "heartland"? ............................. 1028
                       2. Extent of vertical departure .......................................... 1029
                          a. Analogy 1: Extensive criminal history and likelihood of
                recidivism ....................................................... 1030
                          b. Analogy 2: History of assaultive conduct ........................... 1032
                III. CONCLUSION ................................................................. 1033
                

The United States Sentencing Commission has set forth a detailed and complex framework to guide the district courts' discretion in sentencing criminal defendants. Yet, the United States Sentencing Guidelines not only leave room for an individualized assessment of each defendant's particular characteristics and circumstances, they command it:

The [Sentencing Reform] Act [of 1984] did not eliminate all of the district court's discretion.... Acknowledging the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances, see 28 U.S.C. § 991(b)(1)(B), Congress allows district courts to depart from the applicable Guideline range if "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)); accord United States v. Decora, 177 F.3d 676, 678 (8th Cir.1999) ("Although the sentencing guidelines are designed to achieve uniformity in federal sentencing, they also preserve for the sentencing judge the discretion to depart.") (citing Mistretta v. United States, 488 U.S. 361, 367, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)). In this case, the court is presented with an eighteen year-old incorrigible criminal offender with a long history of assaultive behavior and must decide whether his dangerousness, propensity for violence, extensive criminal history, and proclivity for recidivism warrant an upward departure in his sentence.

I. INTRODUCTION

A. Procedural Background

This matter is before the court pursuant to the court's sua sponte notice of a potential upward departure from the defendant's Guideline range. On October 5, 2001, the federal Grand Jury returned a one count indictment against defendant Mingo Flores ("Flores"), charging that on or about May 1, 2001, in the Northern District of Iowa, Flores knowingly and intentionally possessed with the intent to distribute approximately 391 grams of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). On January 24, 2002, the defendant, Mingo Flores, pleaded guilty to the indictment, pursuant to a plea agreement, before Magistrate Judge Paul A. Zoss.¹ On February 26 2002, the undersigned accepted the defendant's plea of guilty, as recommended by Judge Zoss in his Report and Recommendation Concerning Plea of Guilty.

The court scheduled Flores to be sentenced on May 9, 2002. However, at the time of his scheduled sentencing hearing, the court gave notice that it was seriously contemplating a substantial upward departure from the defendant's Guideline range based on the defendant's criminal history and demonstrated history of violence. Upon learning of the court's intention, counsel for defendant moved for a continuance. The court granted defendant's request, and Flores came before the court for sentencing on September 10, 2002.

The offense to which Flores pleaded guilty carries a mandatory minimum term of imprisonment of ten years. 21 U.S.C. § 841(b)(1)(A). The maximum term of imprisonment for the offense is life, a fine of up to $4,000,000, and a term of supervised release of five years up to life. Id.

B. Factual Background

Pursuant to Federal Rule of Criminal Procedure 32, a United States Probation Officer prepared a Presentence Investigation Report ("PSIR") in this case. The PSIR scored Flores as a Criminal History category IV, with an adjusted Total Offense Level of 25. Based on this calculation, Flores's Guideline range is 84 to 105 months; however, his Guideline range is trumped by the 10 year mandatory minimum term of imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A). Neither the United States Attorney's Office nor the defendant filed objections to the factual matters contained in the PSIR. Accordingly, the court accepts these factual allegations as true and may consider them in contemplating a departure. United States v. Bougie, 279 F.3d 648, 650-51 (8th Cir.2002) (citing United States v. Joshua, 40 F.3d 948 (8th Cir.1994)); see, e.g., United States v. Young, 272 F.3d 1052, 1055 (8th Cir.2001) ("[U]nless a defendant objects to specific factual allegations contained in the PSR, a district court may accept the facts as true for purposes of sentencing.") (citing United States v. Moser, 168 F.3d 1130, 1132 (8th Cir.1999)); United States v. LaRoche, 83 F.3d 958, 959 (8th Cir.1996) (per curiam) ("A district court may accept as true all factual allegations contained in the PSR that are not specifically objected to by the parties.") (citing United States v. Montanye, 996 F.2d 190, 192-93 (8th Cir.1993) (en banc)); United States v. Beatty, 9 F.3d 686, 690 (8th Cir.1993) ("Under our cases, a district court is clearly permitted to accept as true all factual allegations contained in the PSR that are not specifically objected to by the parties.") (citing Montanye, 996 F.2d at 192-93); cf. United States v. Fortier, 911 F.2d 100, 103 (8th Cir.1990) ("A court may rely solely upon a presentence report for findings relevant to sentencing only if the facts in the presentence report are not disputed by the defendant."), overruled on other grounds, United States v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc).

Flores is merely eighteen years old, yet he has one of the more extensive and violent criminal histories that the undersigned has seen in the nearly 700 criminal defendants sentenced by this court.² Flores's criminal behavior began at the tender age of seven and continued unabated until he was arrested for the crime for which this court is now sentencing him. Because of privacy concerns, as evidenced in statutes such as 18 U.S.C. § 5038 and Iowa Code § 232.55, the court will not narrate Flores's entire criminal history. It suffices to say, however, that Flores's criminal behavior includes a long history of assaultive behavior and disrespect for authority. The probation officer who prepared Flores's PSIR summarized Flores's criminal history as follows:

The defendant has a significant juvenile record involving three adjudications for Assault with Dangerous Weapons (brandishing a knife), Assault, Refusing to Obey a Lawful order, Theft — Fourth Degree, Interference With Official Acts, Possession of Marijuana, and Public Intoxication. He had two juvenile cases (Carrying Weapons and Attempted Third Degree Burglary) waived to adult court. The carrying Weapons offense involved threatening a person with a .30 caliber handgun. The defendant also had prior juvenile dispositions for Theft — Fifth Degree (three separate cases), Carrying a Concealed Weapon (a butterfly knife), and Disorderly Conduct. Furthermore, he has other arrests for Criminal Mischief — Fourth Degree (two arrests), Burglary — Third Degree, Serious Assault (two arrests), Making Homemade Explosives, Threats With Weapons, Theft — Second Degree, Theft from Vehicles, Harassment, Public Intoxication, and Attempted Murder as well as two status offenses.

Sentencing Recommendation, Justification.

Perhaps most illustrative of the defendant's propensity for violence, a criminal complaint that is factually related to the drug charge to which Flores pleaded guilty in federal court was filed in state court in April of 2001. The complaint reflects that on April 28, 2001, Flores attempted to murder his sister's boyfriend merely because his sister requested Flores to do so. Flores's sister and boyfriend were engaged in a verbal argument when Flores drove up to the scene as a passenger in a car. When the defendant's sister told him to shoot her boyfriend, Flores fired five shots, striking the boyfriend twice. Two witnesses identified Flores as the shooter. It is while executing a search warrant on this attempted murder investigation that police found 81 sugar cubes dosed with LSD, as well as liquid LSD, drug notes, drug-related paraphernalia, and a digital scale — the evidence that formed the basis of the federal drug...