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United States v. Barnes

United States District Court, W.D. Pennsylvania

December 30, 2019

UNITED STATES OF AMERICA,
v.
STEPHEN BARNES, Defendant.

          MEMORANDUM AND ORDER OF COURT

          Nora Barry Fischer Senior United States District Judge

         On October 15, 2019, the Court held a hearing and oral argument on the Government's motion for an upward departure pursuant to § 4A1.3(a) of the United States Sentencing Guidelines and/or an upward variance under 18 U.S.C. §§ 3553(a)(1) and (a)(2). The transcript of that hearing was filed on November 13, 2019, and neither party elected to submit any post-hearing briefing on the matter. After review and consideration of the transcript of the October 15th proceedings and the parties' respective positions, the Court will grant the Government's motion for an upward departure under Guideline § 4A1.3 and depart upward to criminal history category IV, but holds in abeyance ruling on the Government's request for an upward variance until the time of sentencing.

         I. BACKGROUND

         On April 30, 2019, Defendant pled guilty to distribution and possession with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i), as charged in the Indictment at Counts Two and Six, respectively. As set forth in the Presentence Investigation Report (“PIR”), the Probation Office determined that Defendant's total offense level is 23 and with a criminal history category of III, the advisory guidelines range is 57 to 71 months' imprisonment. However, the guidelines range is increased to 60 to 71 months' imprisonment because the statutorily required minimum sentences of 60 months' imprisonment at each count are greater than the minimum of the applicable guideline range.

         Neither party had any objections to the PIR, but the Government indicated in its Position With Respect to Sentencing Factors its intent to seek an upward departure and/or upward variance from the guidelines range because Defendant's criminal history category of III dramatically understates the nature and extent of his lengthy and violent criminal history. Given the lack of objections from the parties, the Court determined in its Tentative Findings and Rulings that Defendant's advisory guidelines range is 60 to 71 months' imprisonment as computed in the PIR.

         In anticipation of the sentencing hearing which had been scheduled to occur on October 15, 2019, the Government filed its sentencing memorandum (Docket No. 57) wherein it moved for an upward departure under Guideline § 4A1.3(a) and/or an upward variance under relevant § 3553(a) factors. According to the Government, the pertinent facts of this case are much worse and are not adequately accounted for by the advisory guidelines range. The Government submits that this is far from a typical offense level 23 / criminal history category III case, and that Defendant's conduct in 2018 was atrocious and demands an upward departure or variance to a sentence of no less than 120 months' imprisonment to properly account for it. (Id. at 1-2). Conversely, Defendant advocates in his sentencing memorandum (Docket No. 58) that a sentence of 64 months' imprisonment is sufficient, but not greater than necessary, to achieve the purposes of sentencing in this case.

         Instead of conducting the sentencing hearing as scheduled on October 15th, the Court held a hearing and oral argument on the Government's motion for an upward departure and/or upward variance. The Government did not present any evidence at the hearing but made additional argument in support of its motion to depart or vary upward, to which Defendant's counsel responded. At the conclusion of the argument, the Court ordered preparation of the transcript and took the matter under advisement. After considering the parties' positions, the Court finds that an upward departure under Guideline § 4A1.3 is warranted for reasons explained below. The Court will consider the Government's motion for an upward variance when it addresses the relevant § 3553(a) factors at the time of sentencing.

         II. ANALYSIS

         In analyzing the Government's motion for an upward departure, the operative section of the Guidelines is § 4A1.3(a)(1), which sets forth the standard for an upward departure as follows:

If reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted.

Guideline § 4A1.3(a)(2) lists the types of information which may inform such a decision including:

(A) prior sentences not used in computing the criminal history category;
(B) prior sentences of substantially more than one year imposed as a result of independent crimes committed on different occasions;
(C) prior similar misconduct established by a civil adjudication or by a failure to comply with an ...

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