U.S. v. Leviner, CRIM. 97-10260-NG.
| Decision Date | 22 December 1998 |
| Docket Number | No. CRIM. 97-10260-NG.,CRIM. 97-10260-NG. |
| Citation | 31 F.Supp.2d 23 |
| Parties | UNITED STATES of America, v. Alexander LEVINER, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Leo Sorkin, Federal Defender Office, Boston, MA, for Alexander Leviner, Defendant.
Roger Witkin, Boston, MA, for Derrick Johnson, Defendant.
Marianne C. Hinkle, United States Attorney's Office, Boston, MA, for U.S.
SECOND AMENDED ORDER RE: SENTENCING
The sentencing of Alexander Leviner (hereinafter "Leviner") raises two major issues:
First, should Leviner's sentence for Felon in Possession of a Firearm be based on a conviction that occurred after the possession itself, as the Government argues. I conclude that it should not. If the United States Sentencing Commission Guideline ("the Guideline(s)") commentary suggests such an interpretation — and in my judgment, it does not — then the commentary is necessarily trumped by the Felon in Possession statute itself, 18 U.S.C. § 922(g), and the language of the Guidelines, not to mention logic and fundamental fairness. See infra Section III.
Second, should this Court depart from the Guideline range on the grounds that Leviner's record — overwhelmingly motor vehicle violations and minor drug possession offenses — overstates his culpability and the likelihood of his recidivism? I conclude that Leviner's record does so, and thus I will depart downward. See infra Section IV. A system for evaluating criminal history, like the Federal Guidelines system, which assigns points for past convictions solely according to the length of sentence the defendant received, necessarily replicates disparities in state sentencing. Furthermore, even more profound concerns are raised where, as here, the defendant is African American, the convictions were largely motor vehicle offenses, for which the defendant was imprisoned. The scholarly and popular literature strongly suggests that there is racial disparity in the rates at which African Americans are stopped and prosecuted for traffic offenses. That literature, together with the specific facts about Leviner's record and background, compel me to depart from the Guideline range.
Alexander Leviner pled guilty to the charge of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). The indictment charges Leviner with possessing a 9 mm Smith and Wesson, semiautomatic handgun, together with fourteen rounds of ammunition. Leviner, the indictment further charges, had previously been convicted of a crime punishable by a term of imprisonment exceeding one year.
The data on which this sentencing decision is based are as follows: A two-day hearing that was held on Defendant's Motion To Suppress, which described the circumstances of Leviner's arrest; (see Memorandum and Order dated June 29, 1998); the plea colloquy; and a two-day sentencing hearing.
The car in which Leviner was a passenger was observed by police officers as traveling at a high rate of speed, without headlights, from an area in which shots had reportedly been fired. The officers followed the car and stopped it. The officers reported that the occupants of the car (the driver — Denise Cummings, the front seat passenger — Derrick Johnson, and Leviner, who was seated in the rear) were cooperative, that they produced the requested documentation (license and registration for the driver, identification for the passengers), answered all questions posed to them, and even agreed to be searched. But for the fact that Cumming's registration did not match the car she was driving, the officers were prepared to allow them to leave. As a result of the registration disparity, Leviner and the others were asked to step out of the car. At some point the officers found a holster on Leviner, and he fled. The officers apprehended him almost immediately and found the gun in question on the car floor near where Leviner had been sitting.
The Government has also represented that tests indicate that shots had been fired from Leviner's gun and a shell casing was found on the car floor. There was, however, no indication that the gun was fired at anyone in particular, or even that anyone was threatened by its use. The Government does not even make such an accusation.
The offense is unquestionably a serious one. The Assistant United States Attorney quite appropriately points out that this was not the mere possession of the firearm, but its firing. While the gun was not used to threaten anyone, it was nevertheless used.2
Leviner has had a consistent employment record. He is a trained asbestos removal worker, regularly employed over the past ten years. Moreover, he was raised in a stable family situation, and has maintained close ties with his extended family and his children. Impressively, the courtroom was filed with family and friends for each hearing.
Additionally, while Leviner has a relatively long record, it consists almost entirely of motor vehicle offenses, and minor drug possession charges. Except for a conviction for assault when he was seventeen (Leviner is now thirty-three), his record is overwhelmingly non-violent.
If I were to apply the Sentencing Guidelines to this case uncritically, none of these facts would make much of a difference. Instead, what would matter most in determining Leviner's sentence would be two numbers on a grid — the fact that this offender has a relatively high criminal history score — a Category V, without regard to its nature, and the fact this Felon in Possession of a Firearm offense is graded more severely because Leviner has two felony convictions, without regard to the fact that one conviction took place two weeks after Leviner possessed the gun.
While the Sentencing Guidelines were designed to eliminate unwarranted disparities in sentencing, and constrain a judge's discretion, they are not to be applied mechanistically, wholly ignoring fairness, logic, and the underlying statutory scheme.
The Guideline calculations reflected in the Presentence Report, and endorsed by the Government, are the following:
A. The base offense level: Based on Probation's conclusion that Leviner has two prior convictions for controlled substance offenses, under USSG § 2K2.1(a)(2) the offense level is 24.
I reject this interpretation for the reasons described in Section III. Consequently, considering only the one felony conviction within the meaning of the Guidelines — the one that actually occurred prior to the firearm possession — the base offense level is 20.
B. Adjustment for Acceptance of Responsibility: All parties agree that Leviner is entitled to a 3 point reduction for acceptance of responsibility.
C. Total offense level: The offense level is 17.
D. Criminal History: Leviner's criminal history score, according to the Presentence Report, is a Category V, based on a score of 11.
I reject this calculation for the reasons described infra in Section IV. Instead, I conclude that Leviner's criminal history vastly overstates his true culpability and his likelihood of recidivism on this offense. Accordingly, I base my calculations on a criminal history score of 4.
Based on the Sentencing Table, the Guideline imprisonment range is 30 to 37 months. I will sentence this defendant to a term of 30 months.3
The Government maintains that Leviner's base offense level should be 24 under USSG § 2K2.1. Their calculation takes into account the fact that two weeks after his arrest on the instant charge, Leviner was convicted of another felony.
The Government's argument makes no sense in terms of the language of 18 U.S.C. § 922(g)(1), or the structure and language of the Guidelines.4
Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1), is the prototypical status offense.5...
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