U.S. v. Yahnke, CR 03-0022-MWB.

• Decision Date: 23 December 2003
• Docket Number: No. CR 03-0022-MWB.,CR 03-0022-MWB.
• Citation: 297 F.Supp.2d 1173
• Parties: UNITED STATES of America, Plaintiff, v. Bradley YAHNKE, Defendant.
• Court: U.S. District Court — Northern District of Iowa

297 F.Supp.2d 1173

UNITED STATES of America, Plaintiff, v. Bradley YAHNKE, Defendant.

No. CR 03-0022-MWB.

United States District Court, N.D. Iowa, Cedar Rapids Division.

December 23, 2003.

COPYRIGHT MATERIAL OMITTED

Anne M. Laverty, David E. Mullin, Willey, O'Brien, Mullin, Laverty & Hanrahan, LC, Cedar Rapids, IA, for Defendant.

Matthew J. Cole, US Attorney's Office, Cedar Rapids, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER OF JUDGMENT ON SENTENCING

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION .....................................................1177
                     A.  Factual Background ...........................................1177
                         1.  The charged offense  .....................................1177
                         2.  Yahnke's criminal history ................................1178
                     B.  Procedural Background ........................................1180
                         1.  Yahnke's present charge and plea .........................1180
                         2.  Sentencing recommendations and disputes ..................1180
                 II. LEGAL ANALYSIS ...................................................1181
                     A.  Defendant's Guideline Sentence ...............................1181
                     B.  Upward Departure .............................................1182
                         1.  Arguments of the parties .................................1182
                         2.  Guidelines determination and authority to depart .........1182
                             a.  The general scheme ...................................1182
                             b.  The grounds for departure at issue here ..............1183
                         3.  Prior murder conviction ..................................1185
                             a.  Pertinent decisions ..................................1185
                                  i.  United States v. Morrison .......................1185
                                 ii.  United States v. Henderson ......................1187
                

                iii.  United States v. Rivera .......................1187
                                   iv.  United States v. Grey Cloud ...................1188
                             b.  Analysis .............................................1188
                         4.  Incidents resulting in parole violations .................1190
                             a.  Seriousness of past criminal conduct .................1191
                             b.  Potential for recidivism .............................1191
                         5.  Other admitted criminal conduct ..........................1192
                         6.  Extent of the departure ..................................1193
                III.  CONCLUSION AND ORDER OF JUDGMENT ................................1195
                

Although this court has often complained that the United States Sentencing Guidelines require imposition of a sentence that is too harsh, this is one of those rare cases in which the court believes that the defendant's "criminal history category [under the Guidelines] does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. § 4A1.3.¹ Therefore, the court gave notice to the parties of its intent to depart upward from the sentence dictated by the United States Sentencing Guidelines for the defendant's violation of 21 U.S.C. § 856, an offense that the court will describe for shorthand purposes as "maintaining a drug establishment." After giving the parties the opportunity to brief and argue the issue, the court has decided to impose a sentence that departs upward from the defendant's Guidelines sentence. As required by the recently-enacted PROTECT Act, this court will now "state[] with specificity" in a "written order of judgment" its reasons for departing upward from the applicable Guidelines sentence. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No. 108-21, § 401(c), 117 Stat. 650, 669 (2003) (amending 18 U.S.C. § 3553(c)); United States v. Gonzales-Ortega, 346 F.3d 800, 801 (8th Cir.2003); United States v. Archambault, 344 F.3d 732, 735 n. 3 (8th Cir.2003); United States v. Aguilar-Lopez, 329 F.3d 960, 962 (8th Cir.2003).

I. INTRODUCTION

A. Factual Background

1. The charged offense

The factual background to the guilty plea of defendant Bradley Yahnke to a charge of "maintaining a drug establishment" in violation of 21 U.S.C. § 856 is drawn primarily from the Presentence Investigation Report (PSIR). The parties have made pertinent objections to the PSIR where noted.

The PSIR reflects that, on March 10, 2003, law enforcement officers conducted a consent search of a residence owned and occupied by Yahnke in Anamosa, Iowa, although the law enforcement officers apparently came armed with a search warrant for the premises. Yahnke led law enforcement officers to the upstairs bedroom, where items that could be used in the manufacture of methamphetamine were discovered. Specifically, officers located a one-gallon glass jar containing a bluish liquid, which tested basic. In the bottom of the jar, law enforcement officers observed a white powdery substance, which later tested positive for pseudoephedrine at the Division of Criminal Investigation (DCI) laboratory. Other items were located in a duffle bag lying next to a glass container in the bathroom. Those items consisted of a one-pound box of Morton salt, several brass nozzles, pipe fittings, cutting pliers, a white chemical suit, nitro rubber gloves, and one packaged lithium battery. The DCI laboratory reports reflect that the "methamphetamine lab" found at the defendant's residence could have produced 2 grams of actual "pure" methamphetamine. In addition to the methamphetamine-making paraphernalia, law enforcement officers found on Yahnke's person a red marijuana smoking device containing suspected marijuana, a cut straw that contained a white powder residue, and a small piece of tin foil.

Yahnke stated to law enforcement officers that a person named Denny Lathum had brought the items discovered in his bedroom and bathroom to his house the day before officers arrived to execute the search warrant. Law enforcement officers contend that Yahnke also admitted that Lathum had brought "dope" like this to Yahnke's residence on two occasions in the recent past and had left it there. Yahnke, however, contends that what he admitted was that Lathum had brought "stuff" to the house, meaning a bag or backpack, and that it was the law enforcement officers who used the word "dope," not Yahnke. Yahnke also admitted that he had received methamphetamine from Lathum when Lathum dropped off what turned out to be methamphetamine-making items at Yahnke's residence. In a sentencing memorandum filed October 29, 2003, Yahnke contends that he had no knowledge of exactly what Lathum was storing at his house, although he admits that he believed that the package had to do with drugs or some sort of contraband. He also argues that his activities were strictly limited to allowing the package to be stored at his house; he points out that he did not obtain precursor chemicals for methamphetamine making, nor did he participate in any "cooking" of methamphetamine, arrange customers to buy methamphetamine, or make sales of methamphetamine for Lathum out of his house.

Yahnke was arrested and later indicted for violating 21 U.S.C. § 856.

2. Yahnke's criminal history

The PSIR reflects that Yahnke had previously been convicted of second-degree murder in the Iowa District Court for Linn County. More specifically, the PSIR states that Yahnke, who was then eighteen years of age, was arrested on February 27, 1985, for the January 24, 1985, murder of Joan Marie Heims. As an explanation of the details of the murder conviction, the PSIR provides the following information, to which Yahnke has made no objection:

Charging documents obtained from the Linn County, Iowa, Clerk of Court regarding the defendant's conviction for the above-noted violation show that the defendant was originally charged with Murder in the First Degree after the defendant was found in possession of the gun which killed Joan Marie Heims who was found dead on January 24, 1985 at her residence from a gun shot wound in Cedar Rapids, Iowa. Further investigation and ballistic testing revealed that the type of weapon had an unusual "rifling" in the barrel. The police recovered a rifle from the defendant's home which was found to be the murder weapon after testing. The defendant admitted that he alone had access to the murder weapon at the time of the offense. According to the Criminal Complaint, the defendant attempted to create an alibi by soliciting someone to give false statements as to his whereabouts. It is further reported that on or about January 24, 1985, the defendant called Kevin Doyle who resided with the victim. Arrangements were reportedly made for the defendant to pick up some marijuana from the victim and Kevin Doyle. The defendant admitted to law enforcement officials to stealing marijuana from the victim and made promises concerning the reimbursement for same. Additionally, marijuana was reported missing from the apartment of the victim and ammunition consistent with th[at] use[d] in the homicide was recovered from the defendant's home.

PSIR at 7, ¶ 32.

Although Yahnke was originally charged with first-degree murder, he was ultimately convicted only of second-degree murder. The PSIR does not indicate whether Yahnke pleaded guilty in exchange for a reduction in the charge, or whether he was convicted of the lesser offense after a jury or bench trial. Yahnke was sentenced on August 8, 1986, to imprisonment for up to 50 years for the murder, but he was paroled on May 12, 1993, after serving less than seven years of his sentence. The court observes that Iowa has since adopted an "eighty-five percent rule" pursuant to IOWA CODE §§ 902.12 and 903A.2(1)(b), under which a defendant convicted of an offense like Yahnke's would have been required to serve at least eighty-five percent of his sentence. In Yahnke's case, application of such an "eighty-five percent...