9. Defendant's Ninth Objection
Defense counsel argues that the counts of conviction should have been combined into a single group under Sentencing Guidelines § 3D1.2. Section III (A) of this Opinion addresses this argument. For the reasons stated therein, this objection is overruled.
10. Defendant's Tenth Objection
Defense counsel objects to two factors upon which the Government seeks upward departure: the unfounded allegation that Defendant still has stolen money secreted somewhere, and the allegation that Defendant sought to have his former girlfriend murdered based upon a conversation which took place in violation of Defendant's Sixth Amendment rights. We have discussed both of these arguments at length in sections III (C)(1) and III (C)(2)(b) of this Opinion, respectively. For the reasons provided therein, Defendant's tenth objection is overruled.
We hold that the grouping of counts suggested by the Presentence Report is legally sound. Defendant's base Offense Level therefore stands at 22. We have also found that a two level § 3C1.1 enhancement for obstruction of justice is warranted, bringing the offense Level to 24. In addition, we have imposed a six level upward departure based upon Defendant's failure to return all of the money he stole and his attempt to have his former fiancee murdered to prevent her from testifying against him. This upward departure brings Defendant's Offense Level to 30.
For a Level 30 Offense, the Sentencing Guidelines recommend a sentence of 97 to 121 months for a defendant with a Criminal History Category of I. We have given careful consideration to the arguments made by the Government and defense counsel regarding the appropriate sentence to impose in this case and by agreement of the Government and defense, we will impose sentence at a later hearing to be scheduled by this court. An appropriate Restitution Order follows.
AND NOW, this 24th day of November, 1997, consistent with the foregoing Opinion and by agreement of the parties, IT IS HEREBY ORDERED THAT:
1. All personal property of the Defendant which is currently in the custody of the FBI or Government will be sold at auction within ninety (90) days of the date of this Opinion, and the proceeds will be immediately applied to making restitution on Defendant's behalf;
2. During his three year period of supervised release, the Defendant can realistically earn and pay $ 300 per month toward restitution for a total payment of $ 10,800;
3. During his period of imprisonment, although the Defendant may make voluntary payments of restitution if he wishes, the Defendant will not be required to make restitution so that he may apply his earnings toward improving his education;
4. The sum of $ 80,000 is immediately due and owing from the Defendant as restitution, and the court orders the same to be paid immediately. Failure to pay this sum immediately shall not be a basis for a contempt or other enforcement proceeding, nor shall it prevent Defendant from entering a program of supervised release or satisfactorily completing the same. If the FBI locates such funds, this Restitution Order shall be a sufficient basis for them to seize the same and apply the money to restitution.
BY THE COURT
Franklin S. Van Antwerpen
United States District Judge