U.S. v. Phelps

• Decision Date: 01 April 2005
• Docket Number: No. 1:04-CR-41.,1:04-CR-41.
• Parties: UNITED STATES of America v. Jerry PHELPS
• Court: U.S. District Court — Eastern District of Tennessee

366 F.Supp.2d 580

UNITED STATES of America v. Jerry PHELPS

No. 1:04-CR-41.

United States District Court, E.D. Tennessee.

April 1, 2005.

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Christopher D. Poole, Assistant U.S. Atty. Office, Chattanooga, TN, for United States of America.

Daniel J. Ripper, Luther — Anderson, PLLP, Anthony Martinez, Chattanooga, TN, for Jerry Phelps.

SENTENCING MEMORANDUM

COLLIER, District Judge.

I. INTRODUCTION

On March 4, 2005, the Court sentenced Defendant Jerry Phelps ("Defendant") to a term of 150 months imprisonment. The Court is now issuing this Memorandum in conjunction with the written judgment in this case so as to provide greater detail regarding the reasons for the specific sentence imposed and to communicate the methodology the Court intends to follow in all future cases¹ in light of the Supreme Court's recent ruling in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in a seven-count Superseding Indictment (Court File No. 9) with various drug and firearm offenses. On August 5, 2004, Defendant entered pleas of guilty without benefit of a written plea agreement to the first and seventh counts of the Superseding Indictment which charged him with conspiring to distribute and possess with intent to distribute more than five grams of cocaine base ("crack") in violation of 21 U.S.C. §§ 846, 841(a)(1), & 841(b)(1)(B), and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Court File No. 26). Prior to Defendant's sentencing hearing, the United States Probation Office prepared a Presentence Investigation Report ("PSR"). Pursuant to the United States Sentencing Commission Guidelines Manual ("Guidelines"), the PSR assigned Defendant a total offense level of 23 and a criminal history category of V, resulting in an effective Guidelines imprisonment range of 144 to 165 months. Defendant appeared before the Court for sentencing on January 7, 2005, and did not offer any objections to the PSR which required a ruling or determination by the Court. As such, the Court found the PSR's Guidelines calculations were accurate and announced a sentence of 150 months, which fell in the middle of the applicable Guidelines range.

On January 12, 2005, before the written judgment was entered, the Supreme Court issued its long awaited ruling in Booker. Therein, the Supreme Court applied the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to the federal Guidelines and concluded the Guidelines violate the Sixth Amendment right to a jury trial where they provide for a sentence in excess of the maximum authorized by the facts established by a plea of guilty, a jury verdict, or a defendant's own admissions. See Booker, 125 S.Ct. at 756. The Supreme Court then remedied this violation by striking those provisions of the United States Code which made the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), and set forth standards of review on appeal, 18 U.S.C. § 3742(e). Booker, 125 S.Ct. at 764-66. In light of Booker, Defendant requested the Court resentence him exercising its new-found discretion and treating the Guidelines as advisory. The Court granted Defendant's request and held a second sentencing hearing on March 4, 2005 (Court File No. 35). Since the regime under which the Court must now sentence Defendant has changed greatly, the Court will take this opportunity to detail how it arrived at Defendant's sentence in the new post-Booker world of federal sentencing.²

III. SENTENCING METHODOLOGY

As a starting point, the Court will set out the methodology the Court believes now governs federal sentencing. Following Booker, the Guidelines are still valid and in effect, they are simply not compulsory. The Sentencing Commission remains in existence and still performs its authorized functions. Despite the advisory nature of the Guidelines, sentencing courts must continue to consult them and take them into account in rendering sentencing decisions. See 18 U.S.C. § 3553(a)(4). Since, as a logical matter, the Court can neither "consult" nor "consider" the advisory Guidelines range without first determining what that range is, the Court will continue to endeavor to determine the Guidelines range applicable to each case that comes before it. See United States v. Crosby, 397 F.3d 103, 115 (2nd Cir.2005) ("sentencing judge would commit a statutory error in violation of section 3553(a) if the judge failed to `consider' the applicable Guidelines range"); United States v. Hughes, 396 F.3d 374, 378-79 (4th Cir.2005) ("Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines.") (emphasis added). This is the first step in the process and, in most cases, will require the Court to proceed just as it always has, ruling on objections to the PSR and resolving any factual disputes to the extent they would affect the applicable Guidelines range. In doing so, the Court will continue to apply the preponderance of the evidence standard and will not consider itself restricted by the Federal Rules of Evidence. See 18 U.S.C. § 3661; Fed.R.Evid. 1101(d)(3); U.S.S.G. § 6A1.3(a). However, in some cases the Court may find it desirable to identify more than one possible Guidelines range, contiguous or otherwise, and consider each in determining a sentence. See Crosby, 397 F.3d at 112 (noting that since Guidelines are no longer mandatory, a district court has leeway to avoid making certain factual determinations by concluding either of two Guidelines ranges apply, proceeding to impose a non-Guidelines sentence, and announcing it would have imposed the same sentence irrespective of which range was ultimately found to be correct).

After determining the applicable Guidelines range, the second step in the process requires the Court to determine whether any departures from the advisory Guidelines range are appropriate pursuant to the Guidelines and/or the Sentencing Commission's policy statements. See 18 U.S.C. § 3553(a)(4) & (5); U.S.S.G. § 5K. In order for the Court to fully consider the Guidelines and policy statements in a given case, the advisory Guidelines range must necessarily include a determination with respect to any departures contemplated or provided for thereunder. Overlooking the departure aspects of the Guidelines or treating the Court's new Booker discretion as a substitute for or overlay of existing departure practice would sever a critical component of the Guidelines scheme, thus rendering any resulting advisory Guidelines range incomplete. Determination of departures also allows the Sentencing Commission to better fulfill its role in making recommendations to Congress and in making periodic adjustments to the Guidelines in light of actual sentences being imposed.³ Consideration of an advisory Guidelines range arrived at through piecemeal application of the Guidelines no more complies with §§ 3553(a)(4) and (5) than ignoring the Guidelines entirely. Moreover, applying the Guidelines in such a selective manner would merely serve to validate and/or exacerbate many of the long-standing criticisms of the Guidelines (e.g., overemphasis on prosecutorial charging decisions, unduly harsh one-size-fits-all sentencing ranges, little to no accounting for particularized characteristics of offense and offender, etc.), thus justifying non-Guideline sentences where a full and complete application of the Guidelines might well have resulted in a fair and just sentence. See generally United States v. Green, 346 F.Supp.2d 259 (D.Mass.2004) (offering blistering pre-Blakely critique of Guidelines and federal criminal practice thereunder).

Accordingly, the Court will continue to apply established departure law and procedures in determining the advisory Guideline range and counsel for both parties should continue to file formal motions for downward or upward departures bringing to the Court's attention any factor which they believe warrants a departure under the Guidelines. Additionally, in appropriate cases and upon notice to the parties, the Court may sua sponte depart from the applicable Guidelines range. See Burns v. United States, 501 U.S. 129, 138-139, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991) (holding district court may depart from applicable Guidelines sentencing range based upon a ground not identified in the PSR or in a prehearing submission by either party so long as it provides the parties "reasonable notice" it is contemplating such a ruling).

The third and final step requires the Court to determine the appropriate sentence. Section 3553(a) directs the court to impose a sentence "sufficient, but not greater than necessary to comply with the purposes set forth in paragraph (2) of this subsection," that is to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence to criminal conduct, protect the public from further crimes of the defendant, and provide needed training, medical care, or other correctional treatment in the most effective manner. See also 18 U.S.C. § 3551(a) (stating defendants "shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case"). These are the purposes of criminal sentencing and the Court is charged with determining how these objectives are best served in a given case. In making such a determination, the statute states the Court "shall consider" the following seven enumerated factors:

(1) the nature and circumstances of the offense and the history and...