U.S. v. Vanleer, 2:03-CR-00137 PGC.

Decision Date03 July 2003
Docket NumberNo. 2:03-CR-00137 PGC.,2:03-CR-00137 PGC.
Citation270 F.Supp.2d 1318
PartiesUNITED STATES of America, Plaintiff, v. Paul Bradley VANLEER, Defendant.
CourtU.S. District Court — District of Utah

Eric D. Petersen, Salt Lake City, UT, for Plaintiff.

Henri R. Sisneros, Salt Lake City, UT, for Defendant.


CASSELL, District Judge.

This criminal case is before the court on defendant Paul Bradley VanLeer's motion for a downward departure. VanLeer has pled guilty to possession of a firearm by a convicted felon. He agrees with the government that the applicable sentencing guidelines produce a sentencing range of 30 to 37 months. VanLeer argues, however, that the court should depart downward from this range under U.S.S.G. 5K2.11, which allows a departure where the crime did not "threaten the harm or evil" ordinarily covered by the statute at issue. VanLeer observes that his crime involved merely taking a firearm to a pawn shop to sell it.

The court agrees with VanLeer that a downward departure is appropriate on this basis. In reaching that conclusion; however, the court has found it necessary to review the effects of a newly passed federal statute involving downward departures—the so-called "Feeney Amendment." In some quarters, the view has been expressed that the Feeney Amendment "essentially eliminates judges' discretion to depart below the Guidelines in all cases."1 This opinion explains the court's conclusion that the Feeney Amendment does not have such far-reaching effects and why a downward departure is appropriate here.


This case involves a somewhat unusual fact pattern that resulted in a felon-inpossession charge when a felon was dispossessing himself of a firearm. The court finds the facts to be as follows. VanLeer has a history of non-violent criminal offenses, all apparently stemming from his use of illegal drugs. On September 10, 2002, VanLeer was released from prison after serving time connected with a forgery charge. Several weeks after his release, he met a friend who was in possession of a shotgun that VanLeer had purchased and owned before acquiring a felony conviction. As VanLeer was destitute and needed money for rent, he took the firearm—a Ted Williams 12 gauge shotgun—to a local pawn shop and sold it. During this transaction on October 1, 2002, VanLeer gave his correct name, address, and an inked fingerprint to verify his identity as owner of the firearm to the pawn shop clerk.

On November 5, 2002, an investigator from the Salt Lake City Police Department conducted a record check and determined that VanLeer was a previously convicted felon. This led to the filing of a one-count indictment, charging felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). The defendant pled guilty, leading to this sentencing.

Both sides agree that the proper offense level starts at a level 14 under the guidelines applicable to felons in possession of a firearm.2 Both sides further agree that a two-level reduction for accepting responsibility is appropriate, producing a final offense level of 12. VanLeer's criminal history (involving driving under the influence of alcohol, forgery, reckless driving, theft, attempted forgery, shoplifting) is a level VI, establishing a sentencing range of 30-37 months. VanLeer seeks a downward departure from this range.

/. Standards for a Downward Departure Before the Feeney Amendment

The Supreme Court and the Tenth Circuit have announced the general standards for a downward departure under the sentencing guidelines. In 1996, the Supreme Court explained that when a sentencing court is considering departing from the Guidelines, it should ask four questions:

1) What features of this case, potentially, take it outside the Guidelines' "heartland" and make it a special, or unusual case?

2) Has the Commission forbidden departures based on those features?

3) If not, has the Commission encouraged departures based on those features?

4) If not, has the Commission discouraged departures based on those features?3

If a factor is not mentioned in the Guidelines, as in this case, then "the court must, after considering the `structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,' decide whether it is sufficient to take the case out of the Guideline's heartland."4 The Tenth Circuit has instructed that a sentencing court, when considering a downward departure on grounds that the case is "outside the heartland" must determine whether the departure is consistent with the Guidelines' goals.5 These goals are to "(1) reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the crime; (2) deter criminal conduct; (3) protect the public from the defendant's further crimes; and (4) provide the defendant with needed correctional care or treatment."6

Departures—both downward and upward—are a critical component of the sentencing' guideline scheme. Departures provide flexibility to what would otherwise be an unduly rigid system. Indeed, without departures to avoid unduly lenient or unduly excessive punishment, it seems likely that popular support for sentencing guidelines would quickly erode. Presumably for this very reason Congress directed that the sentencing guidelines should be crafted (and presumably interpreted) so as to "avoid[] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices...."7

These pronouncements on downward departures, however, all predate the passage of the Feeney Amendment, adopted by Congress on April 10, 2003 with an effective date of April 30, 2003. Both Sides have apparently agreed that the Feeney Amendment governs the sentencing at issue here. There is a substantial question concerning the constitutionality of retroactively applying the Feeney Amendment to VanLeer, who committed his crime before effective date of the Act. In view of the parties' agreement, however, the court will assume the Amendment applies retroactively. The question thus arises: what effect does the Feeney Amendment have on these general standards for downward departures?

II. The Effect of the Feeney Amendment on Downward Departures

A Legislative History of the Feeney Amendment.

On February 24, 2003, the Senate considered and unanimously passed what was formally called the Prosecutorial Remedies and Tools Against the Exploitation of Children Today ("PROTECT") Act of 2003.8 This legislation focused on enhancing the prosecution of child pornography. When the House took up the measure on March 26, 2003, its focus was on legislation to prevent child abduction, including a national notification system to find abducted children known as the Amber Alert.9 On March 27, 2003, Representative Tom Feeney proposed amending this legislation to "address[] long-standing and increasing problems of downward departures from the Federal sentencing guidelines."10 His amendment would have restricted downward departures in all cases. Departures would be limited to grounds that had been "affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements."11 The justification for this restriction was to prevent judges from "mak[ing] up exceptions [to the guidelines] as they go along."12 The Feeney Amendment was approved by a vote of 357 to 58,13 and the child abduction prevention legislation to which it was attached passed overwhelmingly as well.14

After the House's approval of legislation differing from the Senate's, the matter went to a Conference Committee. While pending there, a variety of diverse commentators expressed their concern about various aspects of the Feeney Amendment. For example, the Judicial Conference of the United States, through the Chief Justice, expressed its view that "this legislation, if enacted, would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences."15 Similarly, Business Civil Liberties, Inc., offered its view that the Amendment would interfere with the proper sentencing of those in the business community who had committed criminal offenses involving essentially regulatory infractions.16 The National Association of Criminal Defense Lawyers argued that "[w]ithout the discretionary authority to depart, all crimes regardless of the circumstances would have to be sentenced exactly the same; one size must fit all...."17

Apparently as a result of concerns such as these, the Conference Committee reached a bipartisan compromise, which substantially narrowed the breadth of the Feeney Amendment.18 The compromise version has been called the Hatch-Sensenbrenner-Graham compromise amendment,19 but for clarity here will be identified as the "Feeney Amendment." This Amendment made the most restrictive limitations on downward departures applicable only to certain child crimes and sex offenses.20 With this change, the House and the Senate agreed to the conference report on April 10, 2003, the President approved it, and the Act became effective on April 30.2003.21

B. Changes in the Standards for Departures.

As finally approved by Congress, the Feeney Amendment makes a variety of changes related to sentencing procedures. The Amendment expands appellate review of sentencing departures 22 and alters the procedures to be used following remands in such cases.23 The Amendment further requires a formal government motion before awarding a defendant a three-level reduction for accepting responsibility (instead of the normal two-level reduction).24 In an...

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7 cases
  • U.S. v. Riley
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 3 d2 Agosto d2 2004
    ...in writing its reasons for departure, as well as expanding the scope of appellate review of such departures. See United States v. VanLeer, 270 F.Supp.2d 1318, 1324 (D.Utah 2003). Under § 3553(c)(2), the district court is required to state "with specificity" his or her "reasons [for departin......
  • U.S. v. Schnepper
    • United States
    • U.S. District Court — District of Hawaii
    • 13 d2 Janeiro d2 2004
    ...of downward departures for certain child crimes and sexual offenses. PROTECT Act, Pub.L. No. 108-21, § 401(a); United States v. VanLeer, 270 F.Supp.2d 1318, 1323 (D.Utah 2003). Section 401(b) amends the Guidelines Manual to reflect the revisions to § 3553(b).14 PROTECT Act, Pub.L. No. 108-2......
  • U.S. v. Croxford
    • United States
    • U.S. District Court — District of Utah
    • 7 d3 Julho d3 2004
    ...119. Blakely, ___ U.S. at ___, 124 S.Ct. 2531, 2553-54 ___ L.Ed.2d at ___ (Breyer, J., dissenting). 120. See United States v. Van Leer, 270 F.Supp.2d 1318, 1322-1323 (D.Utah 2003) (discussing legislative history of the PROTECT Act). 121. See id. (Breyer, J., dissenting) (citing U.S.S.G. § 2......
  • U.S. v. Wilson, 2:03-CR-00882-PGC.
    • United States
    • U.S. District Court — District of Utah
    • 13 d4 Janeiro d4 2005
    ...standards for child sex offenses). 27. Brief of Amici Curiae, United States v. Booker at 2, 4. 28. See generally United States v. Van Leer, 270 F.Supp.2d 1318 (D.Utah 2003). 29. 149 CONG. REC. H3061 (Mar. 27, 2003) (statement of Rep. 30. Id. 31. 18 U.S.C. § 3553(c) (emphasis added). 32. See......
  • Request a trial to view additional results
1 books & journal articles
  • Gridland: an allegorical critique of federal sentencing.
    • United States
    • Journal of Criminal Law and Criminology Vol. 96 No. 1, September - September 2005
    • 22 d4 Setembro d4 2005
    ...2d 259, 262 (D. Mass. 2004); United States v. Detwiler, 338 F. Supp. 2d 1166, 1167 (D. Or. 2004). But see United States v. VanLeer, 270 F. Supp. 2d 1318 (D. Utah 2003) (Cassell, J.) (concluding, inter alia, that the Feeney Amendment did not eliminate judicial discretion and that the so-call......

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