Opinion
CASE NUMBER: 07-20457-2.
December 5, 2008
MEMORANDUM OPINION
I. INTRODUCTION
Joshua E. Bonderenka comes before the Court to be sentenced. Probation calculated Defendant's guideline range to be 262 to 327 months. The Government contends it should be 235 to 293 months; Defendant agrees, and suggests additional reasons to further lower his sentence.
On September 16, 2008, the Court requested additional briefing on one issue: whether Defendant's 1996 conviction for Possession of an Unregistered Destructive Device in violation of 18 U.S.C. § 5861(d) constitutes a prior crime of violence for purposes of U.S.S.G. § 2K2.1(a)(4)(A).
The Court finds that Defendant's sentencing range is 235 to 293 months, based on an Offense Level of 36 and a Criminal History Category of III. However, for the reasons explained here, the Court grants a variance and sentences Defendant to 120 months of detention.
II. BACKGROUND
On August 29, 2007, Defendant and co-Defendant Adam Burke broke into the home of Mr. Burke's uncle and stole over thirty firearms from his safe. After storing the weapons in a storage unit leased by Defendant, they sold approximately six guns to an associate known as "Taj" in exchange for cash and marijuana. Neither Taj nor the firearms he purchased has been recovered. Later that day, Defendants took four other guns to the home of a Confidential Informant ("CI"); they were arrested after Mr. Burke sold the weapons to an undercover police officer. With Mr. Burke's help, the police found the storage unit and recovered most of the guns and other stolen property.
Defendants were indicted on September 13, 2007 on two counts of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of Possession of a Stolen Firearm under 18 U.S.C. § 922(j). Counts One and Three applied to the four guns sold to the undercover officer; Counts Two and Four were for the guns recovered at Defendant's storage unit. Each count carries a statutory maximum of ten years (120 months) imprisonment. 18 U.S.C. § 924(a)(2).
The government offered Rule 11 Plea Agreements to both Defendants; only Mr. Burke accepted. Defendant Bonderenka was found guilty at trial on all counts on March 26, 2008.
III. ANALYSIS
A sentencing court bears a statutory duty to fashion a sentence that is "sufficient, but not greater than necessary," and which appropriately serves
(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 educational or vocational training, medical care, or other correctional treatment in the most effective manner.18 U.S.C. § 3553(a)(2). Since the Supreme Court's decision in U.S. v. Booker, which rendered the United States Sentencing Commission Guidelines ("the Guidelines") advisory, sentencing has become a multi-step process. 543 U.S. 220 (2005). The starting point of the analysis should always be the correctly calculated guideline range. Gall v. U.S., 128 S. Ct. 586, 596 (2007). Once the proper range is established, the sentencing court must determine if a sentence within this range properly serves the purposes of 18 U.S.C. § 3553(a). Booker, 543 U.S. at 245-246.
In the Sixth Circuit, sentences within the Guidelines are presumptively reasonable on review. U.S. v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006); see also Rita v. U.S., 127 S. Ct. 2456, 2467 (2007) (holding that appeals courts may apply a presumption of reasonableness to sentences within the Guidelines, but that sentences outside the range are not presumptively unreasonable). However, "this rebuttable presumption does not relieve the sentencing court of its obligation to explain to the parties and the reviewing court its reasons for imposing a particular sentence." Richardson, 437 F.3d at 554. Furthermore, although Booker empowers district courts to practice "individualized sentencing within reason," U.S. v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008), appellate courts maintain authority to review variances that improperly apply § 3553(a) factors. See U.S. v. Davis, 537 F.3d 611, 618 (6th Cir. 2008).
On appeal, sentences are reviewed for abuse of discretion. Gall, 128 S. Ct. at 594 ( citing Booker, 543 U.S. at 260-262). A proper sentence is one that is both procedurally and substantively reasonable. Gall, 128 S. Ct. at 597. Procedural error will be found where the sentencing court ignores or incorrectly calculates the guideline range, treats the Guidelines as mandatory, disregards the relevant § 3553(a) factors, relies on clearly erroneous facts, or fails to adequately explain its reasons for choosing a particular sentence or deviating from the appropriate guideline range. Id.; U.S. v. Funk, 534 F.3d 522, 526 (6th Cir. 2008).
By contrast, an appellate court reviewing for substantive reasonableness must consider "the totality of the circumstances, including the extent of any variance from the Guidelines range." Gall, 128 S. Ct. at 597. As the Sixth Circuit explains,
Procedural error . . . is abuse of discretion per se, inasmuch as the court applied the law improperly. But substantive error is far more ambiguous — it is an error so serious that the decision is not entitled to deference, just as if the court had relied on a clearly erroneous finding of fact, clearly misapplied the law, or applied the wrong law. Furthermore, the amount of deference that is due in any particular case varies, depending on whether the case is outside the Guidelines' "heartland" and therefore entitled to the "greatest respect," or alternatively, is a "mine-run case" warranting "closer review."Funk, 534 F.3d at 526 ( quoting Kimbrough v. U.S., 128 S. Ct. 558, 575 (2007) (other citations omitted).
A. Guideline Sentencing Range
Applying the Sentencing Commission Guidelines Manual (2007), Probation's Presentence Investigation Report ("PSIR") attributes to Defendant a total offense level of 37 and places him in Criminal History Category III, resulting in a guideline range of 262 to 327 months. Defendant and the Government both object to this calculation.
The Court is obligated to resolve disputes pertaining to calculations under the Guidelines. See Gall, 128 S. Ct. at 596. After reviewing objections, the Court finds Defendant's total offense level to be 36, for a range of 235 to 293 months.
1. Calculation of Defendant's Base Offense Level
The four counts to which Defendant pled guilty constitute part of a common scheme or plan; thus, in accordance with U.S.S.G. § 3D1.2(b), they are considered as a group. The offense level applicable to the group is that of the most serious counts comprising it. § 3D1.3(a). Here, the four counts have identical offense levels.
The PSIR sets Defendant's base offense level at 20 for unlawful possession of a firearm subsequent to sustaining one felony conviction for a crime of violence. § 2K2.1(a)(4)(A). In August 1995, when Defendant was 18, he and friends purchased materials to build pipe bombs from a Meijer store. (Presentence Investigation Report, U.S. v. Bonderenka, No. 96-Cr-80742-DT-01, July 9, 1998, at 5.) The group built three pipe bombs, which they detonated in a Conrail railroad yard. Two bombs were placed on the roofs of train cars and caused no damage; the third exploded in an unused building, destroying a set of lockers which cost $475 to replace. ( Id. at 5-6.) The group bought additional supplies and built three more bombs; police arrested them as they prepared to detonate them in an abandoned building complex. ( Id. at 6.)
Defendant pled guilty to one count of Possession of Unregistered Destructive Devices in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871. ( Id. at 1.) Section 5861(d) makes it unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." For purposes of this section, the term "firearm" includes "a destructive device," which can be "any explosive . . . bomb . . . or similar device." § 5845(a), (f). Defendant also pled guilty to one count of aiding and abetting under 18 U.S.C. § 2. Although § 5871 allows for up to ten years' imprisonment for violations of § 5861(d), the Government entered into a Rule 11 agreement with Defendant providing that any custody sentence should not exceed 30 months. On July 30, 1998, Judge Avery Cohn sentenced Defendant to 18 months custody and two years supervised release, which he completed without incident.
During the course of Defendant's sentencing on this crime, the question arose, whether his conviction for possession of a pipe bomb properly qualifies as a crime of violence. The Sixth Circuit has yet to consider this question. For purposes of U.S.S.G. § 2K2.1, a "crime of violence" is:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that —
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
§ 4B1.2(a) (emphasis added). The commentary accompanying § 4B1.2 expands on this definition, stating:
Other offenses are included as "crimes of violence" if . . . the conduct set forth ( i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
. . .
Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) ( e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb or machine gun) is a "crime of violence".
§ 4B1.2, Application Note 1 (emphasis added).
The Supreme Court holds that Guidelines commentary is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. U.S., 508 U.S. 36, 38 (1993). Application Note 1 to U.S.S.G. § 4B1.2 does not violate the Constitution or a federal statute; likewise, it is not an inconsistent or erroneous reading of § 4B1.2.
Several circuits hold that possession of a pipe bomb constitutes a crime of violence. See U.S. v. Jennings, 195 F.3d 795, 798 (5th Cir. Tex. 1999) ("We hold that possession of an unregistered pipe bomb, by its very nature, creates a substantial risk of violence"); U.S. v. Dempsey, 957 F.2d 831, 834 (11th Cir. 1992) (noting the "uniquely dangerous nature of homemade pipe bombs and hand grenades"); U.S. v. Newman, No. 97-1294, 1997 U.S. App. LEXIS 27000, at *4 (10th Cir. Oct. 1, 1997) (unpublished) ("Possession of unregistered pipe bombs, by its very nature, involves a substantial risk of injury to the person or property of another"); U.S. v. Crawford, No. 95-Cr-169, 1995 U.S. Dist. LEXIS 6811, at *3 (N.D.N.Y. May 16, 1995) (unpublished) ("Possession of a destructive device, in this case a homemade pipe bomb, inherently involves substantial risk that physical force against the person or property of another will be used in its commission, whether that use of force is intentional or unintentional detonation of the device"); U.S. v. Dodge, 846 F. Supp. 181, 184 (D. Conn. 1994) ("[A] silencer and a pipe bomb are inherently dangerous weapons for which no peaceful purpose can be considered, regardless of whether the weapons are actually used"). While the Sixth Circuit has not addressed this issue specifically, it has stated that "[p]ipe bombs are inherently dangerous and serve no useful purpose." U.S. v. Cole, No. 93-1344, 1994 U.S. App. LEXIS 3876, at *8 (6th Cir. Mar. 1, 1994) (unpublished).
In all likelihood, were it to consider the question, the Sixth Circuit would hold that possession of a pipe bomb constitutes a crime of violence within the definition of U.S.S.G. § 4B1.2(a). Accordingly, the Court finds that Defendant's base offense level is 20, as calculated by Probation and the Government.
2. Adjustments for Specific Characteristics of the Offense
Probation recommends that the characteristics of this case warrant increasing Defendant's total offense by 17 points.
First, the fact that the offense involved more than 25 firearms but less than 99 adds six points. U.S.S.G. § 2K2.1(b)(1)(C). Another four points are added since one of the firearms had an obliterated serial number, § 2K2.1(b)(4)(B), bringing Defendant's cumulative offense level to 29. See § 2K2.1(b) ("the cumulative offense level determined from the application of subsections (b)(1) through (b)(4) may not exceed level 29"). Next, the PSIR adds four points because Defendant engaged in the trafficking of firearms, § 2K2.1(b)(5), and four more points because Defendant possessed the weapons in connection with another felony offense, § 2K2.1(b)(6), in this case the burglary of Mr. Burke's uncle's home, and the sale of guns to Taj in exchange for drugs. This is how Probation arrives at a total Offense Level of 37.
The Government disputes this in two respects. The Government argues that (1) Defendant's total offense level should be increased by two points because the firearms were stolen, and (2) the four-point serial number enhancement should not apply. Both objections are valid.
Defendant argues that the four-level increase for possession of a firearm in connection with another felony offense should not apply, and that his offense level should be reduced because he played only a minor role in the offense. The Court disagrees with Defendant's arguments.
i. Stolen Firearm Enhancement
The Government's first objection is that Defendant's offense level should be enhanced by two points in accordance with U.S.S.G. § 2K2.1(b)(4)(A), which prescribes the increase if any firearms involved in the offense are stolen.
The Government is correct. In relevant part, Application Note 8(A) to § 2K2.1 provides:
If the only offense to which § 2K2.1 applies is 18 U.S.C. § 922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(A). This is because the base offense level takes into account that the firearm or ammunition was stolen.
(emphasis added). The enhancement applies because Defendant was convicted of violating not only 18 U.S.C. § 922(j), but also § 922(g)(1), and because his base offense level is determined by U.S.S.G. § 2K2.1(a)(4)(A), not § 2K2.1(a)(7). Therefore, the Guidelines require the Court to increase Defendant's offense level by two points.
The Sixth Circuit addressed this very issue in U.S. v. Hurst, in which a defendant was convicted of violating both 18 U.S.C. §§ 922(g)(1) and (j). 228 F.3d 751, 755-56 (6th Cir. 2000). The district court calculated the defendant's base offense level under U.S.S.G. § 2K2.1(a)(4) and applied a two-level enhancement under § 2K2.1(b)(4) (now § 2K2.1(b)(4)(A)) because the firearms involved in the offense had been stolen. Id. at 763. The defendant argued the enhancement should apply only if the firearms had been stolen before he took possession of them. Id.
The Sixth Circuit affirmed the sentence, holding that the enhancement was mandatory under Application Note 12 (now Application Note 8) to § 2K2.1, and that
[t]he fact that the handgun defendant Hurst possessed had not been stolen before defendant acquired it does not defeat the fact that he acquired it by theft and then possessed a stolen firearm. Because defendant was convicted of a firearms offense other than those involving stolen firearms, the district court's two-level enhancement of defendant's offense level was not improper.Id. at 764; see also U.S. v. Raleigh, 278 F.3d 563, 566-67 (6th Cir. 2002) (holding that the exception of then-Application Note 12 did not apply to a defendant convicted under 18 U.S.C. § 922(j) because the district court had relied on U.S.S.G. § 2K2.1(a)(4) in determining his base offense).
ii. Serial Number Enhancement
The Government also objects to the application of U.S.S.G. § 2K2.1(b)(4)(B), which requires a four-level increase if "any firearm [involved in the offense] had an altered or obliterated serial number." Probation considers that the enhancement should apply regardless of who erased the serial number.
The firearm is one of four weapons co-Defendant Burke sold to an undercover police officer at the CI's home. Evidence at trial showed that the CI initially purchased the pistol from Mr. Burke, obliterated the serial number, and then traded it back to him in exchange for another gun. Mr. Burke then sold the pistol with the obliterated serial number to the undercover officer. The Government emphasizes that, although Defendant aided Mr. Burke in these transactions, there is no evidence that Defendant examined or handled the altered pistol after the CI traded it back to Mr. Burke, or that Defendant even knew the serial number had been removed. The Government further notes that the Court declined to apply the serial number enhancement to Mr. Burke's offense level when he was sentenced on April 22, 2008.
The Government's objection to the serial number enhancement is reasonable in view of the unique circumstances of this case. Moreover, since the enhancement was not applied to Mr. Burke's sentence, to do so here would run counter to the Guidelines' purpose of promoting consistency in sentencing. See Rita, 127 S. Ct. at 2486 (Souter, J., dissenting). The four-point enhancement under § 2K2.1(b)(4)(B) is omitted.
iii. Enhancement for Possession of a Firearm in Connection with Another Felony Offense
Defendant claims the four-level enhancement for possession of a firearm "in connection with another felony offense," U.S.S.G. § 2K2.1(b)(6), is improper. First, he argues that § 2K2.1(b)(6) only defines "another felony offense" as "any federal, state or local offense, other than the explosive or firearms possession or trafficking offense . . ." (Def.'s Suppl. Sent. Mem. 2-3.) Defendant claims he was charged and convicted of firearm possession offenses only, and that "[N]o other charges were brought against [him]." Id. at 3. Therefore, he reasons, § 2K2.1(b)(6) should not apply.
Defendant's argument is incorrect. On August 31, 2007, Defendant was charged in the Third Circuit Court of Michigan on six counts pertaining to the robbery of Adam Burke's uncle's home: (I) Home Invasion, second degree; (II) Weapons, Firearms, Larceny; (III) Larceny in a Building; (IV) Felony Firearm; (V) Receiving and Concealing a Firearm; and (VI) Possession of a Firearm by a Felon. Defendant pled guilty to Counts V and VI on May 7, 2008. Only Counts IV, V and VI are possession offenses; Counts I, II and III are burglary and theft charges, all of them felonies. See Mich. Comp. Laws § 750.110a(3) (6) (Home Invasion in the second degree); § 750.357b (Larceny by Stealing the Firearm of Another Person); § 750.360 (Larceny in a Building).
Defense counsel is aware of Defendant's state charges since, according to the PSIR, he represented Defendant in these proceedings. Assuredly, defense counsel also knows that the Guidelines' complete definition of "another felony offense" states:
any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.
U.S.S.G. § 2K2.1, Application Note 14(C). Therefore, from the Guidelines' perspective, it makes no difference whether Defendant was convicted or not of the crimes charged.
Had Defendant only been charged with possession felonies in state court, the Guidelines stipulate in the alternative that the four-level enhancement applies to:
(i) a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary; and
(ii) a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.
§ 2K2.1, Application Note 14(B). Here, Defendant not only found and took firearms in the course of a burglary, he then sold the guns in exchange for drugs, thus rendering both provisos applicable. This enhancement applies.
iv. Reduction for Defendant's Minor Role in the Offense
Defendant argues that he played a comparatively minor role in committing the offense. In particular, Defendant claims that co-Defendant Adam Burke, who has a "long history of . . . breaking and entering and theft," initiated these crimes; that Mr. Burke knew of the guns and their location from his relationship to their owner; that Mr. Burke "made the initial contact with the [CI] to arrange" the sale; that Defendant was not present during this initial contact, and finally, that Mr. Burke "took a lead role in the negotiations and the sale" when they met with the CI and undercover officers. (Def.'s Sent. Mem. 2-3.) Defendant also argues that Mr. Burke's trial testimony, according to which Defendant played a primary role in the offense, was motivated by the "desire to minimize his involvement and make himself look better" to the jury. ( Id. at 3.)
The Guidelines provide that a defendant's offense level be decreased by four points if s/he is a "minimal" participant in the offense, by two levels if s/he is a "minor" participant, and by three levels if s/he falls somewhere in between. U.S.S.G. § 3B1.2. These adjustments are designed for defendants whose actions make them "substantially less culpable than the average participant" in the offense. Id. at Application Note 3(A). For example, a "minimal" participant may be a person convicted of drug trafficking whose only role in the offense was to transport or store drugs, and who is accountable only for the quantity of drugs s/he transported or stored. Id. A "minor" participant is one who is less culpable than most participants, but whose role cannot be described as minimal. Id. at Application Note 5.
Defendant's role cannot be described as minimal. He participated in the actual theft, rented the space where the guns were stored, and participated in sales negotiations with the CI and undercover officers. Furthermore, the Court presided over the trial and finds that Defendant was not "substantially less culpable" than Mr. Burke, and does not meet the definition of a "minor" participant. The Court declines to reduce Defendant's offense level for this reason.
v. Total Offense Level
The Court has fully considered the parties' objections to the PSIR and: (1) imposes a two-level stolen firearm enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(A); (2) declines to apply the serial number enhancement of § 2K2.1(b)(4)(B); and (3) finds all other offense-specific adjustments set forth in the PSIR to be appropriate. Defendant's correct Offense Level is 36.
3. Defendant's Criminal History Category
Probation calculates that Defendant's criminal history places him in Category III, a result neither party disputes.
B. Factors Warranting Departure or Variance
Neither Defendant, the Government nor Probation identifies factors supporting a departure or a variance. Nonetheless, the Court believes the suggested guideline range of 235 to 293 months detention is disproportionate to Defendant's offense, and that a sentence below the applicable guideline range serves the purposes of 18 U.S.C. § 3553(a).
A sentencing court may not limit its analysis to the Guidelines; indeed, it "may not presume that the Guidelines range is reasonable." Gall, 128 S. Ct. at 596-97. Rather, the court must determine whether a sentence within the Guidelines serves the enumerated § 3553(a) factors, or if a different sentence within the statutory limits is more appropriate. Booker, 543 U.S. at 245-246. Relevant factors to consider include the nature and circumstances of the offense, the defendant's history and characteristics, the kinds of sentences available, any pertinent policy statements by the Sentencing Commission, providing restitution to victims of the offense, and avoiding unwarranted sentence disparities among defendants with similar records found guilty of similar conduct. § 3553(a).
A variance may be granted if the district court finds that the case before it "falls outside the `heartland' to which the Commission intends individual Guidelines to apply." Rita, 127 S. Ct. at 2465. This may occur if "the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or [if] the case warrants a different sentence regardless." Id.
When sentencing outside the Guidelines,
[the court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, [the court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.Gall, 128 S. Ct. at 597; see also U.S. v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005) ("The court need not recite [the § 3553(a)] factors but must articulate its reasoning in deciding to impose a sentence in order to allow for reasonable appellate review").
On appeal, a sentence outside the Guidelines is not entitled to a presumption of reasonableness. Gall, 128 S. Ct. at 597. Nevertheless, while the reviewing court may consider the extent of the variance,
[it] must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.Id.
The Court's decision to grant a variance is guided in particular by the need to adequately reflect the seriousness of Defendant' offense, provide just punishment for his acts, promote respect for the law and deter against future criminal acts, protect the public and avoid sentencing disparities with his accomplice Adam Burke.
1. 18 U.S.C. § 3553(a)(2)(A): Seriousness of the Offense
One of the cardinal principles of sentencing law is proportionality, namely the need for a sentence to adequately reflect "the seriousness of the circumstances surrounding the offense and the offender." U.S. v. Smith, 505 F.3d 463, 470 (6th Cir. 2007) ( quoting People v. Milbourn, 435 Mich. 630, 636 (1990)). This rule is embodied in the requirement that a sentence be "sufficient, but not greater than necessary, to comply with the purposes set forth in [ 18 U.S.C. § 3553(a)(2).]" Id.
The Court disagrees with the notion that a twenty-year sentence is necessary to reflect the seriousness of this offense. The Guidelines create a comprehensive framework for firearms crimes, which aims to offer sentences based on the specific characteristics of each offense. The results also reflect the Commission's opinion on the relative gravity of a particular crime. Defendant's offense is very serious. Together with an accomplice, he broke into a private dwelling, stole upwards of 25 guns and trafficked them to various individuals, including a drug dealer. Setting aside Defendant's prior conviction for a crime of violence, the Guidelines suggest 121 to 151 months detention for this offense. This range is close to the statutory ten-year maximum for Defendant's crimes, further reflecting the seriousness of his actions. 18 U.S.C. § 924(a)(2). However, 121 to 151 months is only half of Defendant's suggested 235 to 293 range; the only reason Defendant's range is doubled is his prior conviction for a crime of violence.
A sentence within the 235 to 293 months guideline range would not properly reflect the seriousness of the crime for which Defendant is being sentenced. Were the Court to impose such punishment, nearly half of it would be attributable solely to his prior crime of violence. In his dissenting opinion in U.S. v. Smith, Judge Cole stated:
While not discounting the severity and extent of defendant's many prior encounters with the law, a sentencing court must not lose sight of the particular offense at issue. While defendant's criminal history is undoubtedly relevant to the sentencing decision, the defendant has already received punishment for his prior crimes. Therefore, the nature of the conviction at issue is paramount.505 F.3d 463, 474 (6th Cir. 2007) (emphasis added). Here, a sentence within the Guidelines is so disproportionate that it cannot serve the purposes of 18 U.S.C. § 3553(a)(2) or the interests of justice.
2. 18 U.S.C. § 3553(a)(2)(A): Just Punishment for the Offense
"[I]t is a precept of justice that punishment for [the] crime should be graduated and proportioned to [the] offense." Weems v. U.S., 217 U.S. 349, 367 (1910). Because Defendant's crime of violence conviction accounts for a disproportionate amount of his sentencing range, the Court holds that a sentence within the Guidelines would not constitute just punishment.
Under the Guidelines, prior convictions have disproportionate effects on subsequent criminal sentences. This is particularly common for defendants who fall under the Career Offender definition of U.S.S.G. § 4B1.1. See, e.g., U.S. v. Williams, 435 F.3d 1350, 1353, 1354 (11th Cir. 2006) (upholding a sentence of 90 months, well outside of the 188 to 235 guideline range, where the district court held applying the career offender provision would "not promote respect for the law and [was] way out of proportion to the seriousness of the offense and to [the defendant's] criminal prior conduct"); U.S. v. Bonner, 238 Fed. Appx. 871, 872 (3d Cir. 2007) (upholding, for similar reasons, a 180 month sentence, instead of the minimum guideline range of 262); U.S. v. Fernandez, 436 F. Supp. 2d 983, 988 (E.D. Wis. 2006) ("Courts have, in pre- and post- Booker cases, recognized that the career offender guideline can produce a penalty greater than necessary to satisfy the purposes of sentencing") (citing cases).
Here, a conviction for which Defendant served less than two years in 1998 has ballooned into a ten-year extension of his guideline range. When Defendant pled guilty to possessing an unregistered pipe-bomb, the Court, applying pre- Booker standards, sentenced him to 18 months custody and two years supervised release. Although this was a serious offense, the Court imposed a relatively minimal sentence, probably because Defendant's conduct was that of a young man involved in a stupid and dangerous experiment, not a criminal intending to cause others harm. And yet, ten years later, because it is categorized as a crime of violence, this conviction contributes six points to Defendant's Offense Level, adding between 114 and 142 months to his sentencing range. See U.S. v. Phelps, 366 F. Supp. 2d 580, 590 (E.D. Tenn. 2005) (noting "it is not unusual that the technical definitions of `crime of violence' and `controlled substance offense' operate to subject some defendants to not just substantial, but extraordinary increases in their advisory Guidelines ranges").
The Guidelines reflect the undisputed principle that a properly devised sentence should take into account a defendant's prior crimes. However, the Court fails to see how justice would benefit from adding ten years to today's sentence. The purposes of § 3553(a)(2) are not served when an earlier conviction resulting in 18 months custody translates, a decade later, into ten years of detention.
3. 18 U.S.C. § 3553(a)(2)(A): Respect for the Law
Defendant's sentence need not be within the Guidelines to promote respect for the law. This is not a case where the defendant has already accumulated eight or ten years in custody, and now suggests that a reduced sentence would deter him from committing future crimes. In 1998, Defendant was sentenced to 18 months in custody and two years of supervised release for his pipe-bomb offense. Since then, Defendant's other convictions resulted in four days of jail and 30 months of probation combined. While there is no dispute that Defendant's prior brushes with the law failed to instill proper respect in him, the Court cannot agree that only a 20-year sentence could accomplish this objective. The Court also believes that a well-crafted sentence, one that properly weighs this conviction against Defendant's prior crimes, is more likely to generate respect for the law than one so disproportionate that it may be perceived as arbitrary.
4. 18 U.S.C. § 3553(a)(2)(B): Deterrence to Criminal Conduct
One of the most important purposes of sentencing is to deter the defendant from committing future crimes, and to try to do so by crafting a sentence that is "sufficient, but not greater than necessary." 18 U.S.C. § 3553(a)(2).
The deterrent effect of a sentence depends upon the defendant's criminal history and experience with detention. The Second Circuit discussed this relationship in U.S. v. Mishoe.
Obviously, a major reason for imposing an especially long sentence upon those who have committed prior offenses is to achieve a deterrent effect that the prior punishments failed to achieve. That reason requires an appropriate relationship between the sentence for the current offense and the sentences, particularly the times served, for the prior offenses. If, for example, a defendant twice served five or six years and thereafter committed another serious offense, a current sentence might not have an adequate deterrent effect unless it was substantial, perhaps fifteen or twenty years. Conversely, if a defendant served no time or only a few months for the prior offenses, a sentence of even three or five years for the current offense might be expected to have the requisite deterrent effect.241 F.3d 214, 220 (2d Cir. 2001) (emphasis added). Defendant's longest incarceration so far was 18 months; a sentence within the Guidelines would be 13 to 17 times that amount. A shorter sentence would afford "adequate, but not excessive, deterrence." U.S. v. Rodriguez, 527 F.3d 221, 228 (1st Cir. 2008); see also U.S. v. Serrano, No. 04 Cr. 424-19, 2005 U.S. Dist. LEXIS 9782, at *20-25 (S.D.N.Y. May 19, 2005) (unpublished) (imposing 120 months instead of 262 to 327, as suggested by the Guidelines, where ten years was "at least ten times greater than that served by [the defendant] on each of his three prior convictions, an appropriate magnitude of difference").
The Court also notes that Defendant has a statistically lower risk of recidivism than his co-defendant Adam Burke, who was sentenced to 84 months in detention. According to data gathered by the U.S. Sentencing Commission, a person of Defendant's age and Criminal History Category has a 32.7% likelihood of recidivism. See U.S. Sentencing Commission, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines Ex. 9 (2004), available at http://www.ussc.gov/publicat/Recidivism_General.pdf. By comparison, for Mr. Burke, who is 28 and has a Criminal History Category of VI, the likelihood is 58.8%. Id. The same study also indicates a 22.4% likelihood of recidivism based on Defendant's offense level (compared to 39.9% for Mr. Burke) and 22.3% based on a sentence over 60 months (49.7% for Mr. Burke). Id. at Ex. 11 12.
Admittedly, statistics cannot predict individual criminal behavior; however, the Commission's research is a legitimate source of guidance for sentencing courts. See Booker, 543 U.S. at 243 ("[T]he Commission is an independent agency that exercises policymaking authority delegated to it by Congress"); Skidmore v. Swift Co., 323 U.S. 134, 140 (1944) (stating that an expert agency's opinions "while not controlling . . . do constitute a body of experience and informed judgment to which courts . . . may properly resort for guidance"); U.S. v. Doe, 960 F.2d 221, 225 (1st Cir. 1992) ("The Commission, which collects detailed sentencing data on virtually every federal criminal case, is better able than any individual court to make an informed judgment about the relation between simple unlawful gun possession and the likelihood of accompanying violence") (Breyer, C.J.); U.S. v. Harris, No. 1:08cr45, 2008 U.S. Dist. LEXIS 42155, at *17-18 (E.D. Va. May 29, 2008) (unpublished) (granting a downward departure based, among other things, on the Sentencing Commission's research on recidivism).
The Court is mindful of the fact that a proper sentence should deter others by demonstrating the consequences of criminal conduct. See Cunningham v. California, 549 U.S. 270, 304 (2007). However, this purpose is better achieved with a sentence that reflects the gravity of this offense and of Defendant's prior crimes, without disproportionately weighing one over the other.
5. 18 U.S.C. § 3553(a)(2)(C): Protect the Public
Safeguarding the public from future criminal acts is perhaps the most important purpose of sentencing. The Court believes that where Defendant is concerned, a well-designed sentence outside the Guidelines is sufficient to provide adequate public protection.
Defendant was never charged with causing physical harm to anyone. His most violent offense, when he helped build and detonate several pipe bombs, caused a total of $475 in property damages. Since then, Defendant was convicted of breaking and entering an automobile, possession of marijuana, operating while impaired by liquor, and failing to display a valid license. Until this case, Defendant had never been charged with a firearms offense. Based on his criminal history and behavior, the Court does not find Defendant to be so aggressive and dangerous to warrant preserving society from his presence for 20 years.
6. 18 U.S.C. § 3553(a)(6): Avoid Sentence Disparities
Defendant's guideline sentence would be excessive in comparison to that of his co-defendant Adam Burke. Mr. Burke was charged with the same four counts as Defendant; he cooperated, pled guilty to Count One, Felon in Possession of a Firearm under 18 U.S.C. § 922(g)(1), and received 84 months detention. But, the fact that Defendant elected to go to trial does not, by itself, justify a sentence nearly three times as long.
Defendant's criminal record, while serious, is not as extensive or grievous as Mr. Burke's. Defendant's crime of violence offense occurred in 1995, when he was 18. Since then, Defendant was convicted of the four, relatively minor offenses outlined above. Defendant also violated his probation on one occasion. Setting aside Defendant's crime of violence conviction, his other prior offenses resulted in either fines, probation or, in two cases, two days jail.
By comparison, Mr. Burke garnered 12 convictions in his adult life, including several cases of breaking and entering into a vehicle, a concealed weapon offense, credit card possession and a crime of violence conviction for home invasion in the third degree. Mr. Burke served several years in state custody, violated his parole on multiple occasions, and was listed as a parole absconder when he and Defendant stole his uncle's firearms. His crime of violence conviction aside, several of Mr. Burke's prior offenses carried terms ranging from six months to ten years in custody, although he was never sentenced to the maximum term for any of them.
At the time of his sentencing, Mr. Burke had an offense level of 31 and a criminal history category of VI, for a range of 188 to 235 months custody. This was with the benefit of having three of the four charges against him dismissed. Under U.S.S.G. § 5K1.1, the Government recommended a sentence between 84 to 96 months. In so doing, the Government emphasized the seriousness of the offense, Mr. Burke's extensive criminal record and his history of parole violation, but concluded that an 84 to 96 months' sentence would be sufficient to allow Mr. Burke to mature and to deter him from engaging in future criminal conduct. The Court granted the motion and sentenced Mr. Burke to 84 months detention and three years supervised release.
Defendant's sentence should reflect his failure to accept responsibility for his actions, as well as his lack of cooperation with the Government. Mr. Burke's guilty plea is also a major factor supporting the disparity between these co-defendants' sentences. Refusing to cooperate and to take responsibility for one's actions are serious facts which must be accounted for; however, these two factors combined do not justify a sentence on Defendant nearly three times as great as Mr. Burke's.
IV. CALCULATION OF DEFENDANT'S SENTENCE AND CONCLUSION
Defendant's correctly calculated guideline range is 235 to 293 months, based on a total offense level of 36 and a Criminal History Category of III. After careful consideration of the relevant factors of 18 U.S.C. § 3553(a), the Court holds that a sentence of 120 months, to run concurrently on all four counts, is appropriate. This sentence will run concurrently with the sentence imposed by Michigan Third Judicial Circuit Judge Vera Massey Jones in People of the State of Michigan v. Bonderenka, No. 07-024167.
The Court waives assessment of a fine or cost of incarceration and supervision due to Defendant's lack of resources, but a special assessment of $100 is imposed on each count, for a total of $400 payable immediately. The Court also orders Defendant to submit to mandatory drug testing. Upon his release from custody, Defendant will serve a three-year term of supervised release on each count, to run concurrently. Defendant is to abide by the standard conditions of supervised release as adopted by this court. If necessary, Defendant will also participate in a program approved by the Probation Department for substance abuse which may include testing to determine if Defendant has reverted to the abuse of drugs or alcohol. Finally, the Court recommends that Defendant be assigned to a facility with a comprehensive drug treatment program.