U.S. v. Mason

• Decision Date: 22 December 1999
• Docket Number: No. CRIM. 99-162(RWR).,CRIM. 99-162(RWR).
• Citation: 90 F.Supp.2d 1
• Parties: UNITED STATES of America v. Tony MASON, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

90 F.Supp.2d 1

UNITED STATES of America v. Tony MASON, Defendant.

No. CRIM. 99-162(RWR).

United States District Court, District of Columbia.

December 22, 1999.

John Crabb, Jr., United States Attorney's Office, Washington, DC, for Plaintiff.

Maria Denoia Jankowski, Federal Public Defender, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

ROBERTS, District Judge.

Tony Mason was convicted by a jury of unlawful possession of a firearm and ammunition by a convicted felon under 18 U.S.C. § 922(g)(1) (1994). He now moves for a downward departure from his sentencing guidelines range. Because I find that there exists a combination of mitigating circumstances of a kind and to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence outside of the applicable range, see 18 U.S.C. § 3553(b) (1994), U.S.S.G. § 5K2.0, I will depart downward from that range.

Mason had been employed for four years by Snow Valley, a company that supplied bottled water to business clients. He drove a delivery truck and serviced certain clients. He testified at trial that while delivering water on his route one day, he discovered discarded on the ground near a school a paper bag containing a loaded pistol. Mason said that he retrieved the pistol to assure that it would not endanger anyone, and that he intended to turn it in to a police officer he knew at his next delivery destination at the Library of Congress. However, when he drove into the guarded loading dock there and walked to a table to retrieve a parking pass, a police officer spotted the pistol in Mason's waistband and arrested him.

Mason moves for a downward departure on two grounds. First, he argues under U.S.S.G. § 5K2.11 that he committed this offense in order to avoid a greater harm, that is, he retrieved this stray pistol to keep it from harming anyone else. Second, he argues that his extraordinary employment record is a factor present to a sufficient degree to take this case outside of the heartland of guideline cases. The government opposes the motion, disputing the defendant's claims that his possession of the pistol was "well-meaning" and that his employment record was extraordinary.

Several factors compel a downward departure. First, unlike the typical felon in possession case, the government's investigation produced no evidence at trial that the defendant intended to use the pistol unlawfully, or that his possession of the pistol was in connection with any other unlawful behavior such as drug possession, armed robbery or assault. A comparison of this case to a dozen recent felon in possession cases reported in the D.C. Circuit is illustrative. See, e.g., United States v. Richardson, 167 F.3d 621 (D.C.Cir.1999) and its companion case of United States v. Cunningham, 145 F.3d 1385 (D.C.Cir. 1998) (armed robbery, assaults); United States v. Gilliam, 167 F.3d 628 (D.C.Cir. 1999) (reversing for failure to introduce the prior felony a 922(g) conviction linked to armed bank robbery, armed carjacking, theft); United States v. Dickerson, 163 F.3d 639 (D.C.Cir.1998) (drug possession); United States v. Dozier, 162 F.3d 120 (D.C.Cir.1998) (drug possession); United States v. Pugh, 158 F.3d 1308 (D.C.Cir. 1998) (drug possession); United States v. Spinner, 152 F.3d 950 (D.C.Cir.1998) (drug possession); United States v. Bowie, 142 F.3d 1301 (D.C.Cir.1998) (drug possession); United States v. Garces, 133 F.3d 70 (D.C.Cir.1998) (murder); United States v. Kennedy, 133 F.3d 53 (D.C.Cir.1998) (assault, robbery); United States v. Atkins, 116 F.3d 1566 (D.C.Cir.1997) (assault, escape); United States v. Moore, 104 F.3d 377 (D.C.Cir.1997) (drug possession).

Second, the government did not prove or try to prove any motive or reason for the defendant's possession of the pistol, unlike the heartland felon in possession case. The jury's verdict of guilty was not determinative of what if anything they believed regarding why the defendant possessed the pistol. Despite what appeared to me to be an effective cross-examination of the defendant regarding his claimed intent to turn in the pistol promptly after retrieving it, the jury was charged, consistent with the government's suggestion, that the defendant's well-meaning possession or innocent motive for possession of the pistol was not a defense.

Third, the government could not disprove the defendant's version of how he came into possession of the weapon, namely, by mere fortuity and just shortly before being arrested for possessing it. By showing the numerous other legal and available options that the defendant chose to forego to get the pistol into safe hands, the government's...