United States District Court, N.D. Indiana, Fort Wayne Division
For Brandon A Peters, Defendant: Thomas N O'Malley - FCD, LEAD ATTORNEY, Federal Community Defenders Inc - FW/IN, Fort Wayne, IN.
For United States of America, Plaintiff: Anthony W Geller, U.S. Attorney's Office - FW/IN, Fort Wayne, IN.
OPINION AND ORDER
THERESA L. SPRINGMANN, UNITED STATES DISTRICT JUDGE.
The Defendant, Brandon A. Peters, pled guilty to Count 1 of an Indictment, robbery of a controlled substance, in violation of 18 U.S.C. § 2118(a) and (c), and to Count 2, use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the Defendant's sentencing. This matter is before the Court on the Defendant's Brief in Support of Variance Pursuant to 18 U.S.C. § 3553(a) [ECF No. 60], filed on May 23, 2014, in which the Defendant seeks a variance from the sentencing guidelines. In its Sentencing Brief [ECF No. 61], filed on June 24, 2014, the Government asks the Court to deny the Defendant's request for a variance. The Defendant filed a Reply [ECF No. 63] on July 10, 2014. The Defendant's request for a downward variance is ripe for ruling.
The Defendant and the Government agree as to the sentencing guidelines calculation pursuant to the PSR in this case. The PSR establishes an offense level of 20 and criminal history category of I for the Defendant, resulting in a guideline calculation of 33 to 41 months of imprisonment for the robbery count (Count 1), and 7 years of imprisonment, to run consecutive to Count 1, for the gun count (Count 2). The guidelines also call for 2 to 5 years of supervised release for each count, a fine of $12,500 to $75,000, restitution in the amount of $3,817, and a special assessment of $100 for each count. The Defendant requests to be sentenced to a term of imprisonment of 7 years. He faces a mandatory minimum sentence of 7 years pursuant to 18 U.S.C. § 924(c) for Count 2. Thus, the Defendant's variance request is that the Court not assign any term of imprisonment for Count 1, the robbery count. The Defendant argues that the nature and circumstances of the offense, and the history and characteristics of the defendant, justify the requested variance. The Government opposes any such variance, arguing that the Defendant should serve a term of imprisonment on the robbery count.
FINDINGS OF FACT
Facts relevant to sentencing should be proved by a preponderance of
the evidence. United States v. England, 555 F.3d 616, 622 (7th Cir. 2009); see also United States v. Krieger, 628 F.3d 857, 862 (7th Cir. 2010) (advising that sentencing factors that do not increase the defendant's sentence beyond the statutory range may be found by the court at sentencing by a preponderance of the evidence). " A proposition proved by a preponderance of the evidence is one that has been shown to be more likely than not." United States v. Davis, 682 F.3d 596, 612 (7th Cir. 2012). The Federal Rules of Evidence do not apply to sentencing, United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005), and a court may rely on hearsay as long as the information " has sufficient indicia of reliability to support its probable accuracy." United States v. Rollins, 544 F.3d 820, 838 (7th Cir. 2008) (quotation marks omitted); see also United States v. Isom, 635 F.3d 904, 908 (7th Cir. 2011) (" At sentencing, courts may rely on presentence reports containing even double-hearsay, i.e., statements by coconspirators to investigators, so long as those statements are reliable." ). At sentencing, " a district judge 'may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.'" United States v. Bautista, 532 F.3d 667, 672 (7th Cir. 2008) (quoting United States v. Johnson, 489 F.3d 794, 796-97 (7th Cir. 2008)). " Sentencing judges necessarily have 'discretion to draw conclusions about the testimony given and evidence introduced at sentencing,' but 'due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations.'" United States v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010) (quoting England, 555 F.3d at 622). " A district court may rely on facts asserted in the PSR if the PSR is based on sufficiently reliable information." Rollins, 544 F.3d at 838. " The defendant bears the burden of proving that the PSR is inaccurate or unreliable," and if he offers no evidence to question the PSR's accuracy, the court may rely on it. Id.
On March 13, 2014, the Court held an evidentiary hearing in which the following facts were determined. The Defendant grew up in the small town of Salado, Texas. His mother is an attorney and his step father is a physician, and he appears to have had a comfortable upbringing. He was gifted mathematically and demonstrated a good work ethic in numerous part-time jobs he had while in high school. He was also active in sports, particularly football, which he played in junior high and high school. The Defendant suffered numerous knee injuries while playing football, one described as particularly gruesome, and had undergone seven knee surgeries by the age of 22. The Defendant has an extensive medical history treating these injuries and has seen numerous physicians to treat chronic knee pain.
In August of 2011, the Defendant began treatment with Dr. Duran Michael Ready, a pain management specialist, to address his knee pain. Dr. Ready diagnosed the Defendant as suffering from opioid-induced hyperalgesia, and prescribed the medication Suboxone for treatment. Based on the testimony offered by Dr. Ready and the Defendant during the evidentiary hearing, the Defendant appeared to have enjoyed some relief while using Suboxone.
The Defendant attended Texas Christian University (TCU) from 2006 to 2011 and majored in Physics. He began working
for Fort Worth Towers (FWT), L.L.C., a custom steel manufacturer, in November 2011, and proved to be a promising employee. In July 2012, the Defendant was promoted to assistant production manager and transferred to the FWT plant in Hicksville, Ohio. That same month the Defendant and his wife moved to Fort Wayne, Indiana. The Hicksville plant is a large facility, occupying approximately 100 acres, 10 of which are under roof. The size of the ...