U.S. v. Frappier

• Decision Date: 08 June 2005
• Docket Number: No. CR 05 12 BW.,CR 05 12 BW.
• Parties: UNITED STATES of America v. Michael FRAPPIER, Defendant.
• Court: U.S. District Court — District of Maine

377 F.Supp.2d 220

UNITED STATES of America v. Michael FRAPPIER, Defendant.

No. CR 05 12 BW.

United States District Court, D. Maine.

June 8, 2005.

James L. McCarthy, Office of the U.S. Attorney, District of Maine, Bangor, ME, for USA, Plaintiff.

Terence M. Harrigan, Vafiades, Brountas & Kominsky, Bangor, ME, for Michael L. Frappier (1), Defendant.

SENTENCING ORDER

WOODCOCK, District Judge.

Having pleaded guilty to being a felon in possession of two firearms in violation of 18 U.S.C. § 922(g)(1), Michael Frappier was facing a Guideline range of incarceration of 46 to 57 months. This range resulted primarily because Mr. Frappier's possession of one firearm began on December 22, 1996, and the Guidelines required reaching back to 1986, capturing convictions in the late 1980s and early 1990s. A further Guideline analysis reveals the proper application of the Guidelines would mandate the imposition of sentence between 41 and 51 months. However, in the narrow circumstances of this case, this Court concludes a statutory sentence of twenty months more accurately reflects congressional sentencing policy consistent with 18 U.S.C. § 3553.

I. STATEMENT OF FACTS

On January 3, 2005, Rosemarie Frappier reached her limit with her husband's recreational use of marijuana and called the police. The Penobscot County Sheriff's Office responded and with her consent, searched the Frappier home in Etna, Maine. In the closet in the master bedroom, they came upon a bag of marijuana and marijuana stalks.¹ They also discovered ammunition and two firearms: a New England Firearms .410 gauge shotgun, Pardner Model, and a New Haven Mossberg .22 magnum caliber bolt action rifle, Model 740T. As a convicted felon, Michael Frappier's possession of firearms was a violation of federal law, 18 U.S.C. § 922(g)(1). The next day a Complaint was issued against him and on March 2, 2005, Mr. Frappier pleaded guilty to a one count Information, charging a violation of § 922(g)(1).

II. DISCUSSION

A. The Guideline Sentence

1. Calculations Based On a January 3, 2005 Date of Offense

The Guideline penalty for a violation of 18 U.S.C. § 922(g)(1) is contained in U.S.S.G. § 2K2.1. This section provides an escalating range of penalties, depending in part upon the Defendant's criminal history. Although the prohibition against a felon possessing a firearm has no time limit, the applicable provisions of U.S.S.G. § 2K2.1, which escalate the penalties, count only those offenses committed within ten years of the "commencement of the instant offense."² If the date of the offense in this case were January 3, 2005, the date the police discovered the firearms, Mr. Frappier would have had no countable prior felonies and his offense level would have been fixed at 14. With acceptance of responsibility, the offense level would drop to 12. With a criminal history of I and a total offense level of 12, Mr. Frappier's Guideline range of sentence would have been 10 to 16 months.

2. Commencement of the Offense

Mr. Frappier's offense, however, did not commence on January 3, 2005. He first came into possession of the .22 rifle in 2003, when a friend, Martin Flood, allowed Mr. Frappier's son, Anthony, then 12 years old, to borrow the . 22 for target practice. Mr. Frappier kept the .22 for Anthony, who was living full time with his mother.

The shotgun is another story. He came into possession of the.410 shotgun on December 22, 1996, when he purchased it at Wal-Mart. When he did so, Mr. Frappier lied on the ATF Form 4473, denying he had ever been convicted of a felony. Mr. Frappier bought the shotgun for his older son, Daniel, then 10 years old, who was also living with his mother, but as with the .22, Mr. Frappier retained possession of Daniel's shotgun.

The question is when Mr. Frappier's violation of 18 U.S.C. § 922(g)(1) commenced under U.S.S.G. § 4A1.1, Application Notes 2, 3 ("A sentence imposed more than ten years prior to the defendant's commencement of the instant offense is not counted.") (emphasis supplied). Application Note 8 of U.S.S.G. § 4A1.2 explains that "commencement of the instant offense" includes any relevant conduct. See also U.S.S.G. § 1B1.3 (Relevant Conduct). Section 1B1.3(a)(1) requires the court to include as relevant conduct "all acts and omissions committed ... by defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1)(A).

There are two 2005 unpublished Sixth Circuit cases directly on point: United States v. Oliver, 129 Fed.Appx. 210 (6th Cir.2005) and United States v. Susewitt, 125 Fed.Appx. 681, 2005 WL 611893 (6th Cir.2005). In Oliver, the Sixth Circuit affirmed the district court's determination that the date the defendant commenced a felon in possession offense was the date he obtained the firearms, and in Susewitt, it affirmed a conclusion that the date the defendant commenced a possession of a sawed-off shotgun offense was the date he sawed off the barrel. In each case, the earlier date led the sentencing court to capture earlier convictions that would otherwise have been beyond the allowable time. The conclusions in Oliver and Susewitt are consistent with other case law. See United States v. Kennedy, 32 F.3d 876, 890-91 (4th Cir.1994) (drug offense commenced at the starting point of the conspiracy, not the date alleged in the indictment), cert. denied sub. nom. Ingram v. United States, 513 U.S. 1128, 115 S.Ct. 939, 130 L.Ed.2d 883 (1995); United States v. Rosenkrans, 236 F.3d 976, 977-78 (8th Cir.2001) (relevant conduct for methamphetamine dealer began when defendant began selling).

Applying § 1B1.3's definition of relevant conduct to § 4A1.1's concept of commencement, this Court concludes the date for commencement of the offense involving the .22 took place in 2003, when Mr. Frappier came into possession of the rifle, and the date for commencement of the offense involving the.410 shotgun took place on December 22, 1996, when he made the illegal purchase. This conclusion is buttressed by the uncontroverted evidence that once in possession, Mr. Frappier continuously retained possession of both firearms until the date of discovery.

3. Recalculation of the Guideline Range

The conclusion that Mr. Frappier commenced his possession of the .22 in 2003 works no untoward consequences for him; however, the conclusion that he commenced his possession of the .410 shotgun on December 22, 1996 results in a significant change in his Guideline range of sentence. Mr. Frappier's criminal history consists of the following: 1) a June 30, 1989 conviction for a February 6, 1989 Criminal Threatening with a Dangerous Weapon; 2) a 1990 conviction for a 1990 Operating Under the Influence; and, 3) September 4, 1991 convictions for May 26, 1991 offenses of Eluding an Officer and Operating After Suspension. Capturing these three prior convictions affects both Mr. Frappier's criminal history classification and his § 2K2.1 offense level. Mr. Frappier's criminal history classification increases to III and his total offense level rises to 24. With a three level reduction for acceptance of responsibility, his total offense level is 21. A Criminal History Category III and a total offense level 21, the sentencing range jumps to 46 to 57 months.

4. Criminal History Category: U.S.S.G. § 4A1.3

Under U.S.S.G. § 4A1.3, the sentencing court may alter a defendant's criminal history category if it 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." U.S.S.G. § 4A1.3(b)(1). Considering the nature of these three prior offenses, this Court cannot conclude a Criminal History Category III over-represents the seriousness of his prior crimes. Criminal Threatening with a Dangerous Weapon, Eluding an Officer, and Operating Under the Influence are manifestly serious offenses; two are crimes of violence.

On the other hand, Defendant makes a more telling point when he argues that his criminal history over-represents his likelihood of recidivism. Section 4A1.3 departures are "encouraged" under Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Wilkerson, 183 F.Supp.2d 373, 380 (D.Mass.2002). A criminal history departure is distinct from a departure under § 5K2.0, which requires the existence of "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." United States v. Woodley, 344 F.Supp.2d 274, 277 n. 4; Wilkerson, 183 F.Supp.2d at 380. This Court does not have to find there is "something atypical or unusual about the defendant's record." Woodley, 344 F.Supp.2d at 277.

Considerations include the nature of the offenses that resulted in prior convictions, United States v. Footman, 66 F.Supp.2d 83, 99 (D.Mass.1999), aff'd, 215 F.3d 145 (1st Cir.2000), and the "defendant's record in the context of his life and background." Wilkerson, 183 F.Supp.2d at 380. Relevant factors are the defendant's age at the time of the prior offenses, whether the crimes were violent or non-violent, how close in time the prior offenses were, and the length of the prior sentences. See Woodley, 344 F.Supp.2d at 278.

Here, the analysis is something of a mixed bag. Mr. Frappier's Category III results from a criminal history point score of 4, tipping him into the higher category. His crimes, as earlier noted, were serious and some were violent. Criminal Threatening with a Dangerous Weapon is particularly disturbing, since the current charge is possession of firearms. However, Mr. Frappier is now 43 years old and the three countable convictions took place between February 6, 1989 and May 26, 1991, when he was between 26 and 29 years old. The relative temporal compression of...