US v. Landaw, SCr. 88-84.
| Decision Date | 26 February 1990 |
| Docket Number | No. SCr. 88-84.,SCr. 88-84. |
| Citation | 733 F. Supp. 1256 |
| Parties | UNITED STATES of America v. Edward E. LANDAW, Jr. |
| Court | U.S. District Court — Northern District of Indiana |
COPYRIGHT MATERIAL OMITTED
Rick L. Jancha and William T. Grimmer, Asst. U.S. Attys., South Bend, Ind., for plaintiff.
Alan Blumenthal, Chicago, Ill., for defendant.
SENTENCING MEMORANDUM
Edward Landaw has been found guilty of possessing a firearm as a felon. 18 U.S.C. § 922(g)(1). On October 21, 1988, two semi-automatic handguns were found during the execution of a search warrant at Mr. Landaw's residence; a jury concluded that Mr. Landaw knowingly possessed those guns. Because the offense occurred after November 1, 1987, the Sentencing Guidelines promulgated pursuant to the Sentencing Reform Act of 1984 govern this case. United States v. Johnson, 889 F.2d 1032 (11th Cir.1989); United States v. Miller, 874 F.2d 466, 467 n. 1 (7th Cir.1989). The court earlier denied the government's motion to enhance the sentence pursuant to 18 U.S.C. § 924(e)(1) because a review of the underlying facts disclosed that Mr. Landaw's prior burglary was not a "crime of violence". United States v. Landaw, 727 F.Supp. 481 (N.D.Ind.1989); cf. United States v. Dombrowksi, 877 F.2d 520 (7th Cir.1989). Accordingly, the offense is punishable by imprisonment for as long as five years, 18 U.S.C. § 924(a)(1), and/or a fine of as much as $250,000.00. 18 U.S.C. § 3623.
A presentence report was prepared and submitted to both sides for objection. The presentence report calculated the sentencing range in two ways. Under the post-November 1, 1989 version of the Guidelines, the range was calculated to be twenty-one to twenty-seven months; under the pre-November 1, 1989 version of the Guidelines, the range was calculated at twelve to eighteen months. The presentence report's determination of the sentencing ranges was based on an adjusted offense level of 11 and the assessment of six criminal history points, placing Mr. Landaw in criminal history category III. The presentence report discussed the possibilities of consecutive sentencing and departure under § 4A1.3 of the Guidelines. See United States v. Mendoza, 890 F.2d 176 (9th Cir.1989).
The defense submitted untimely objections to the report. Although the court's standing order on sentencing procedures would empower the court to view the objections as waived, the court will, in the exercise of its discretion, address the four objections:
The court adopts as its own findings the factual content of the presentence report, except with respect to obstruction under U.S.S.G. § 3C1.1 and as to the adequacy of Mr. Landaw's criminal history category under U.S.S.G. § 4A1.3, as to which the court makes its own findings.
At the sentencing hearing, the government also raised a new issue, requesting an upward departure equivalent to two offense levels due to Mr. Landaw's history of drug abuse.
The court agrees with the defense (as does the government) that the pre-November, 1989 version of the Guidelines must be applied. In Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), the Supreme Court held that a law addressing criminal punishment violates the constitutional prohibition against ex post facto laws if the law is intended to apply retroactively and the new law provides harsher penalties than did the law in effect at the time of the crime. Both prongs of the test are satisfied here. The November 1, 1989 amendments to the Guidelines are intended to apply to crimes committed before their effective date, pursuant to the Congressional directive that courts apply the Guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4). Under the version of the Guidelines in effect at the time of the offense and trial, the base offense level for a felon's possession of a firearm is 9; under the present version, the base offense level is 12.
Accordingly, the court shall apply the pre-amendment version of the Guidelines.
As noted above, the base offense level for a felon's possession of a firearm is 9. U.S.S.G. § 2K2.1. At issue is the twolevel increase in offense level provided by U.S.S.G. § 3C1.1:
If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels.
The government claims that this enhancement is warranted because Mr. Landaw threatened government witnesses Linette Moss and John Nickelson to get them to withhold evidence and to provide false testimony, and used Michael Lennick to tape a false exculpatory telephone conversation between Mr. Landaw and Ms. Moss. Mr. Landaw argues that Ms. Moss testified that she was unafraid of him and that Ms. Moss initiated the taped telephone call, which he contends was not false or intended to obstruct justice.
Section 3C1.1 does not require that the defendant have threatened witnesses, or that a witness be in fear of the defendant. An attempt to impede or obstruct justice is all that is required. United States v. Patterson, 890 F.2d 69 (8th Cir. 1989). Accordingly, Ms. Moss' fear of Mr. Landaw is immaterial. The inquiry focuses on Mr. Landaw's efforts. Mr. Landaw attempted to impede or obstruct justice.
A sentencing court may consider evidence presented at trial, at least where the defendant has had an opportunity to meet and rebut the evidence. See United States v. Monzon, 869 F.2d 338, 346-347 (7th Cir.), cert. denied ___ U.S. ___, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). Much of the evidence introduced at trial was "spoilation" evidence designed to demonstrate Mr. Landaw's consciousness of his guilt. That evidence leads the court to find that Mr. Landaw attempted to impede the administration of justice on least three occasions during the investigation and prosecution of the instant offense, warranting a two-level increase.
First, the evidence at trial was sufficient to support an inference, and a finding by a preponderance of the evidence, see United States v. Vinson, 886 F.2d 740 (4th Cir. 1989), cert. denied ___ U.S. ___, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990), that Mr. Landaw caused Michael Lennick to obtain a false receipt for the firearms from Lonnie Freshour. Second, well before trial, Mr. Landaw told Ms. Moss to say she had found the weapons in Dale Martin's property. Third, the tape recorded telephone call that was played at trial supports an inference, and a finding by a preponderance of the evidence, that on the eve of trial, Mr. Landaw tried to get Ms. Moss to testify falsely concerning the ownership of the firearms.
The court does not rely on the proposition that Mr. Landaw threatened Ms. Moss; evidence at trial was ambiguous as to whether or how he threatened her. Even apart from threats, however, the facts set forth above are more than ample to support a finding that Mr. Landaw attempted to impede or obstruct the administration of justice during the investigation and prosecution of this offense. Mr. Landaw's adjusted offense level is 11.
The government, relying on the Sentencing Commission's finding of a high correlation between substance abuse and an increased propensity to commit crimes, U.S.S.G. § 5H1.4, argues that the court should depart upward due to the likelihood that Mr. Landaw will commit crimes in the future. The government points to evidence suggesting a lengthy history of drug abuse by Mr. Landaw.
While neither Congress nor the Sentencing Commission intended to deprive courts of the "sensible flexibility" to depart from the guidelines in appropriate cases, United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989), the guidelines anticipate that departures will be rare. United States v. Mendoza, 890 F.2d 176, 180 (9th Cir.1989). A sentencing court may not depart from the guidelines on the basis of a factor adequately considered by the Sentencing Commission. United States v. Bolden, 889 F.2d 1336 (4th Cir.1989); United States v. Missick, 875 F.2d 1294 (7th Cir.1989); United States v. Donatiu, 720 F.Supp. 619, 622-623 (N.D.Ill.1989). United States v. Aguilar-Pena, 887 F.2d 347, 349 (1st Cir.1989).
The provision upon which the government relies demonstrates that the Sentencing Commission adequately considered drug dependency as a potential basis for departure, whether upward or downward. The Commission noted the correlation between substance abuse and...
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