United States v. Patrie

• Decision Date: 12 June 2014
• Docket Number: No. 13-CR-2016-LRR,13-CR-2016-LRR
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. RANDY PATRIE, Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. RANDY PATRIE, Defendant.

No. 13-CR-2016-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

DATED: June 12, 2014

ORDER

TABLE OF CONTENTS

I. INTRODUCTION.......... 4

II. RELEVANT PRIOR PROCEEDINGS.......... 4

III. SENTENCING FRAMEWORK.......... 5

IV. EVIDENTIARY RULES.......... 6

V. FACTS.......... 7

A. Background and Investigation.......... 7

B. The Murder of Carl Kenneth Gallmeyer.......... 12

VI. ISSUES.......... 15

VII. BASE OFFENSE LEVEL AND SPECIFIC OFFENSE CHARACTERISTICS.......... 16

A. Cross Reference.......... 16

1. Analogous offense.......... 18

2. Parties' arguments.......... 20

3. Application.......... 20

VIII. CHAPTER THREE ADJUSTMENTS.......... 23

A. Aggravating Role.......... 23

B. Obstruction of Justice.......... 24

1. Parties' arguments.......... 24

2. Applicable law.......... 24

3. Application.......... 25

C. Acceptance of Responsibility.......... 27

1. Parties' arguments.......... 27

2. Applicable law.......... 27

3. Application.......... 28

IX. CHAPTER FOUR ADJUSTMENTS.......... 29

A. Career Offender........... 29

1. Crime of violence.......... 29

a. Parties' arguments.......... 29

b. Applicable law and application.......... 30

2. Predicate offenses.......... 30

a. State drug offense.......... 30

i. Parties' arguments.......... 30

ii. Applicable law.......... 31

iii. Application.......... 32

b. Burglary.......... 33

3. Conclusion.......... 34

B. Armed Career Criminal.......... 34

1. Unconstitutional judicial fact-finding.......... 35

a. Parties' arguments.......... 35

b. Applicable law.......... 35

c. Application.......... 36

2. Second degree burglary as a predicate offense.......... 36

a. Parties' arguments.......... 36

b. Applicable law.......... 37

c. Application.......... 40

i. Categorical approach.......... 41

ii. Modified categorical approach.......... 43

d. Continuous conduct.......... 45

i. Parties' arguments.......... 45

ii. Applicable law.......... 46

iii. Application.......... 46

3. Second degree attempted burglary.......... 48

a. Vagueness.......... 48

i. Parties' arguments.......... 48

ii. Applicable law and application.......... 48

b. Second degree attempted burglary as a predicate offense.......... 49

4. Third degree burglary as a predicate offense.......... 53

5. Conclusion.......... 54

X. PRE-DEPARTURE ADVISORY SENTENCING GUIDELINES RANGE.......... 56

XI. DEPARTURES.......... 56

A. Departure Under USSG §4A1.3(a).......... 57

1. Parties' arguments.......... 57

2. Applicable law.......... 58

3. Application.......... 58

B. Departures Under USSG §5K2.0 and USSG §5K2.1.......... 61

XII. DISPOSITION.......... 62

I. INTRODUCTION

The matter before the court is the sentencing of Defendant Randy Patrie after his pleas of guilty to two federal crimes: possession of firearms as a felon and possession of sawed-off shotguns.

II. RELEVANT PRIOR PROCEEDINGS

On July 23, 2013, a grand jury returned a four-count Indictment (docket no. 2) against Defendant. Count 1 charged Defendant with theft of firearms from a federally licensed firearms dealer, in violation of 18 U.S.C. § 922(u). Count 2 charged Defendant with possession of stolen firearms, in violation of 18 U.S.C. § 922(j). Count 3 charged Defendant with being a felon in possession of firearms as an armed career criminal, in violation of 18 U.S.C. § 922(g)(1). Count 4 charged Defendant with being in possession of sawed-off shotguns, in violation of 26 U.S.C. § 5861(d).

On September 6, 2013, Defendant pled guilty to the offenses charged in Count 3 and Count 4 of the Indictment before Chief Magistrate Judge Jon Scoles (docket no. 23). This court accepted the pleas of guilty on September 24, 2013 (docket no. 27) upon the Report and Recommendation of the magistrate judge (docket no. 24).

On November 26, 2013, the United States Probation Office filed a Final Presentence Investigation Report ("Final PSIR") (docket no. 32). On January 3, 2014, the government and Defendant filed sentencing memoranda ("Government's Sentencing Memorandum") (docket no. 40); ("Defendant's Sentencing Memorandum") (docket no. 41-1) with respect to the contested issues in the Final PSIR. Thereafter, on January 16, 2014, the United States Probation Office filed a Second Revised Final Presentence Investigation Report ("PSIR") (docket no. 42).

On February 6, 2014, the court held a sentencing hearing at which it received evidence on the sentencing issues (docket no. 47). The court heard testimony from several witnesses and received a number of exhibits. The court granted time to file post-hearingbriefs. On February 13, 2014, the government filed a "Post-Hearing Sentencing Brief" ("Government's Post-Hearing Brief") (docket no. 51), and the government filed an Addendum to the Government's Post-Hearing Brief (docket no. 52) the following day. On February 19, 2014, Defendant filed a "Post Hearing Sentencing Brief" ("Defendant's Post-Hearing Brief") (docket no. 53). On February 21, 2014, the government filed a Reply (docket no. 54).

The court now turns to consider the issues raised by the parties. The sentencing hearing will resume on June 19, 2014 at 2:00 p.m., at which time the court will hear victim impact statements, arguments on the issue of what sentence the court should impose and permit Defendant to address the court if he wishes to do so.

III. SENTENCING FRAMEWORK

A "district court should begin [a sentencing proceeding] with a correct calculation of the [defendant's] advisory Sentencing Guidelines range." United States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 49 (2007)). A defendant's advisory Guidelines range "is arrived at after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted." United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008).

"[A]fter giving both parties a chance to argue for the sentence they deem appropriate, the court should consider all of the factors listed in 18 U.S.C. § 3553(a) to determine whether they support the sentence requested by either party." Braggs, 511 F.3d at 812 (citing Gall, 552 U.S. at 49-50). "The district court may not assume that the Guidelines range is reasonable, but instead 'must make an individualized assessment based on the facts presented.'" Id. (quoting Gall, 552 U.S. at 50); see, e.g., Nelson v. United States, 555 U.S. 350, 352 (2009) ("Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.").

The district court "has substantial latitude to determine how much weight to give the various factors under § 3553(a)." United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009); see also United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) ("[It] will be the unusual case when we reverse a district court sentence—whether within, above, or below the applicable Guidelines range—as substantively unreasonable." (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008))). "If the court determines that a sentence outside of the Guidelines is called for, it 'must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.'" Braggs, 511 F.3d at 812 (quoting Gall, 552 U.S. at 50). "The sentence chosen should be adequately explained so as 'to allow for meaningful appellate review and to promote the perception of fair sentencing.'" Id. (quoting Gall, 552 U.S. at 50).

IV. EVIDENTIARY RULES

At sentencing, the court makes findings of fact by a preponderance of the evidence. See, e.g., United States v. Bah, 439 F.3d 423, 426 n.1 (8th Cir. 2006) ("[J]udicial fact-finding using a preponderance of the evidence standard is permitted provided that the [G]uidelines are applied in an advisory manner."). The court considers a wide variety of evidence, including the undisputed portions of the PSIR, as well as the testimony and other evidence the parties introduced at the sentencing hearing. The court does not "put on blinders" by only considering the evidence directly underlying Defendant's offenses of conviction. In calculating Defendant's advisory Guidelines range, for example, the court applies the familiar doctrine of relevant conduct. See USSG §1B1.3. The Eighth Circuit Court of Appeals has repeatedly held that a district court may consider uncharged, dismissed and even acquitted conduct at sentencing. See, e.g., United States v. Whiting, 522 F.3d 845, 850 (8th Cir. 2008). When relevant and "accompanied by sufficient indicia of reliability to support the conclusion that it [was] probably accurate," the court creditshearsay. United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005). The sentencing judge is afforded great discretion in determining the credibility of witnesses and making findings of fact. United States v. Bridges, 569 F.3d 374, 377-78 (8th Cir. 2009).

V. FACTS

A. Background and Investigation

The facts admitted to by Defendant in the PSIR¹ coupled with the testimony and exhibits received during the evidentiary hearing establish the following offense conduct and relevant conduct by a preponderance of the evidence:

Defendant, a multi-convicted burglar, in spite of his status as a felon, has a fondness for firearms and acquiring them through illegal means. He acquired three firearms using a straw purchaser, his girlfriend who later became his wife, and stole a number of them during residential and commercial burglaries.

On June 6, 2010, Defendant's then-girlfriend, Wendi Alderman, purchased a Century Arms 762x54R caliber rifle, serial number 9130196573, from Mills Fleet Farm in Mason City, Iowa. On February 12, 2011, Defendant's then-wife, Wendi Patrie (née Alderman), purchased two more long guns, specifically a Mossberg International rifle, serial number HJH3126371 and a Romarm 7.62x39 caliber rifle, serial number AF12821989, from Mills Fleet Farm in Mason City. At the time of both purchases, Wendi Patrie claimed on ATF Form 4473...