US v. Elliott

• Citation: 684 F. Supp. 1535
• Decision Date: 13 April 1988
• Docket Number: Crim. No. 87-CR-393.
• Parties: UNITED STATES of America, Plaintiff, v. Michael ELLIOTT, Defendant.
• Court: United States District Courts. 10th Circuit. United States District Court of Colorado

684 F. Supp. 1535

UNITED STATES of America, Plaintiff, v. Michael ELLIOTT, Defendant.

Crim. No. 87-CR-393.

United States District Court, D. Colorado.

April 13, 1988.

Bruce Black, Gay Guthrie, Asst. U.S. Attys., Denver, Colo., for plaintiff.

Charles Szekely, Asst. Federal Public Defender, Brian Holland, Denver, Colo., for defendant.

Donald A. Purdy, Jr., U.S. Sentencing Com'n, Washington, D.C., for the Sentencing Com'n.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

Michael Elliott is before this court for sentencing on his pleas of guilty to two violations of 18 U.S.C. § 876 by mailing threatening communications to two women. The statute defining this crime provides that the defendant "shall be fined not more than $500 or imprisoned not more than two years, or both." Because Mr. Elliott's criminal conduct occurred after November 1, 1987, the Sentencing Reform Act of 1984, as amended by the Sentencing Act of 1987, is applicable.

18 U.S.C. § 3553 governs the imposition of sentence. Subsection (a) provides as follows:

(a) Factors to be considered in imposing a sentence. The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are in effect on the date the defendant is sentenced;

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is sentenced;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

Under this section, the court has wide discretion in determining a period of confinement and the listed factors are similar to those used in the sentencing process before the Sentencing Reform Act. The factors reflect a concern for the individual defendant as well as societal needs, and, apparently, the weights the sentencing judge gives to these factors would depend upon the unique factual circumstances of each defendant's case. Section 3552 requires a presentence investigation of a defendant and amended Rule 32(c) of the Federal Rules of Criminal Procedure governs the contents and handling of the reports of those investigations. These provisions would make little change in the procedures followed in federal courts before the new legislation.

A fundamental and dramatic change results from the mandate in 18 U.S.C. § 3553(b) which provides as follows:

(b) Application of guidelines in imposing a sentence. The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, the applicable policy statements of the Sentencing Commission, and the purposes of sentencing set forth in subsection (a)(2).

Read literally, subsection (b) directs that if there is an applicable Sentencing Commission Guideline the court must accept that guideline as an adequate evaluation of all of the factors enumerated in subsection (a) and exercise only the very limited discretion of deciding the penalty within the range established by that guideline. Thus, the applicable guideline directly controls the sentencing decision.

The source of the Sentencing Guidelines is the United States Sentencing Commission established by 28 U.S.C. § 991(a) "as an independent Commission in the judicial branch of the United States." The seven voting members of the Commission are appointed by the President and the statute requires that "at least three of the members shall be federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States." Section 991(a). The statute also provides that the Attorney General or his designee "shall be an ex officio, non-voting member of the Commission." Section 991(a). The members of the Commission are subject to removal from the Commission by the President for good cause. Section 991(a). One of the members of the Commission is designated as the chairman. Section 991(a). The voting members of the Commission are appointed for terms of no more than six years, and no member may serve more than two full year terms. Section 992(a) and (b). A federal judge may serve on the Commission without resigning his appointment as a federal judge. Section 992(c). The Commission acts by an affirmative vote of at least four voting members. Section 994(a).

The stated primary purpose of the Sentencing Commission is to establish sentencing policies and practices that assure the realization of the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2), that provide certainty and fairness in meeting the purposes of sentencing, including avoiding unwarranted disparity among sentences, and that reflect the advancement in knowledge of human behavior as it relates to the criminal justice process. Section 991(b)(1)(A), (B), (C).

Section 994 directs the Sentencing Commission to promulgate and distribute guidelines "for use of a sentencing court in determining the sentence to be imposed in a criminal case." Section 994(a)(1). "For each category of offense involving each category of defendant," the Commission is directed to establish a "sentencing range that is consistent with all pertinent provisions of Title 18, United States Code." Section 994(b). In establishing "categories of offenses," the Commission is directed to consider the grade of the offense, the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense, the nature and degree of harm caused by the offense, the community view of the gravity of the offense, the public concern generated by the offense, the deterrent effect a particular sentence may have on the commission of the offense by others, and the current incidence of the offense in the community and in the nation as a whole. Section 994(c)(1) through (7). In establishing "categories of defendants," the Commission is directed to consider a number of factors including the age, education, skills, mental and emotional health and the family and community ties of the defendant. Section 994(d)(1) through (11).

The Commission is also directed to review and revise the guidelines and consult with authorities on various aspects of the federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States Department of Justice, and a representative of the Federal Public Defender system are directed to submit at least annually a report to the Commission commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted and otherwise assessing the Commission's work. The revised or amended guidelines are to be reported to Congress by the Commission, "and the amended guidelines shall take effect one hundred and eighty days after the Commission reports them, except to the extent the effective date is enlarged or the guidelines are disapproved or modified by Act of Congress." Section 994(p). Finally, the Commission is directed to consider any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of that defendant. Section 994(s). Each judge imposing a sentence under the guidelines is required to submit a written report of the sentence to the Commission. Section 994(w).

The Guidelines promulgated by the Commission establish a scoring system in which points are added and subtracted by considering specific elements of offense conduct and offender characteristics. Chapter Two, titled "Offense Conduct," gives numerical values to the particular crimes defined in the criminal code as "base offense levels" and provides for increases based on "specific offense characteristics." Chapter Three contains Guidelines which require point adjustments for "victim-related adjustments," "role in the offense," and "obstruction." Chapter Four directs adding points for criminal history categories. Chapter Five sets out a sentencing table to be used in determining the specific sentence to be imposed on a particular defendant.

Section 2B3.3 of these Guidelines establishes a "base offense level" of 9 for extortion, and provides for an increase for "specific offense characteristics" if the greater of the amount obtained or demanded exceeds $2,000. The amount of the increase is determined from a table for offenses involving fraud or deceit set forth in...