United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER OF COURT
Barry Fischer Senior United States District Judge
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.
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.
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.
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.
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.
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
(B) prior sentences of substantially more than one year
imposed as a result of independent crimes committed on
(C) prior similar misconduct established by a civil
adjudication or by a failure to comply with an ...