US v. Pipich, Crim. No. S 88-097.

• Citation: 688 F. Supp. 191
• Decision Date: 20 July 1988
• Docket Number: Crim. No. S 88-097.
• Parties: UNITED STATES of America v. Frank Charles PIPICH.
• Court: U.S. District Court — District of Maryland

688 F. Supp. 191

UNITED STATES of America v. Frank Charles PIPICH.

Crim. No. S 88-097.

United States District Court, D. Maryland.

July 20, 1988.

Breckinridge L. Willcox, U.S. Atty., Dist. of Md. and Thomas P. O'Neil, III, Asst. U.S. Atty., Baltimore, Md., for the Government.

Michael S. Libowitz, Baltimore, Md., for defendant.

MEMORANDUM OPINION

SMALKIN, District Judge.

The defendant in this criminal case entered a guilty plea to a one-count criminal information charging him with theft of mail matter by a postal employee in violation of 18 U.S.C. § 1709. Because the offense occurred subsequent to November 1, 1987, the Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3551 et seq., applies.

The presentence investigation report reveals that the defendant served in the United States Marine Corps from February 1, 1968 to January 31, 1972. He served in combat in Vietnam from September 9, 1969 to September 8, 1970. He received over 45 awards of the Air Medal, including one special award for heroism in connection with the extraction of a reconnaissance team that was surrounded by North Vietnamese forces on the night of October 31, 1969. The defendant was awarded the Purple Heart twice. He was also the recipient of several Vietnamese awards.

The calculations performed by the Probation Service pursuant to the Sentencing Reform Act of 1984 resulted in an offense level of 7, with a criminal history category of I. The resulting guideline sentence from the sentencing table of the Sentencing Guidelines is 1-7 months. The Court, considering all the factors set forth in 18 U.S.C. § 3553(a), has concluded that probation is an appropriate sentence. Pursuant to Guideline § 5B1.1(a)(2), the Court is required to impose a condition or combination of conditions of probation requiring intermittent confinement or community confinement as detailed in Guideline § 5C2.1(c)(2).

At sentencing, the defendant's counsel argued for a departure from Guideline § 5B1.1(a)(2), on the ground that an exceptional military service record such as that possessed by this defendant is a factor that satisfies the departure language of 18 U.S. C. § 3553(b), which provides that a court may depart from the guideline sentence otherwise required by Section 3553(a)(4) when it finds that "there exists an aggravating or mitigating circumstance of a kind, or to a degree, that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

At sentencing, the Government took no position on the issue. Representatives of the Probation Service of this District took the position that, although the Guidelines do not address a military record as a ground for departure, up or down, from the guideline sentences, the Probation Service internally considers military service to be simply a form of employment history, and gives it no weight in the sentencing calculus. According to the Sentencing Commission's policy statement at Guideline § 5H1.5, "Employment record is not ordinarily relevant in determining whether a sentence should be outside the guidelines...."

In this case, a sentence of probation that does not include community or intermittent confinement is "outside the guidelines," as that phrase is used in Guideline § 5H1.5. The...