United States District Court, N.D. Indiana, Fort Wayne Division
THERESA L. SPRINGMANN, District Judge.
The Defendant, James Thomas, pled guilty to a drug offense in violation of 21 U.S.C. § 841(a)(1), and is awaiting sentence. The statutory range of imprisonment for the Defendant's offense is 10 years to life. The probation officer prepared a written Presentence Investigation Report (PSR), which calculated a United States Sentencing Guideline range of 292 to 365 months of imprisonment for the Defendant's offense, based on the Defendant's total offense level of 35 and criminal history category of VI. The criminal history category is impacted by the fact that the Defendant is considered a career offender. In a Sentencing Memorandum [ECF No. 430], the Defendant acknowledges that the career offender status is correctly applied, but requests that the Court sentence him below the guideline provision calculated in the PSR on grounds that the his total offense level "overemphasizes the Defendant's criminal history resulting in a much harsher guideline recommendation than is appropriate, " and requests a downward departure pursuant to U.S.S.G. § 4A1.3(b)." (Def.'s Sentencing Mem. 2.) The Government disagrees that the Defendant is deserving of a sentencing variance, and argues that he has "chosen to deal drugs on an ongoing and recidivist basis since 1985, which is precisely the sort of longstanding criminal conduct deserving of the status and criminal history category of a career offender." (Gov't Sentencing Mem. 1, ECF No. 435.) As a second basis for a below-Guideline sentence, the Defendant cites to his physical condition and age. The Government counters that the Defendant's age and health did not deter his armed drug trafficking activity, and thus it should not impact his sentence.
On March 17, 2015, the Court conducted a telephonic status conference with parties' counsel. The Defendant's counsel indicated that he was still pursuing a variance from the Guideline range, but was not presenting additional evidence or argument. The Government likewise stated that it was relying on its written submission. The Defendant has filed a Motion to Withdraw Remaining Objections Noted In Addendum to Presentence Investigation Report [ECF No. 442].
Section 4A1.3(b)(1) permits a one-category reduction in a defendant's criminal history if "the criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes." Departures are warranted only for defendants who have "steered clear of crime for a substantial period of time and whose prior offenses were relatively minor, " United States v. Bradford, 78 F.3d 1216, 1223-24 (7th Cir. 1996); see U.S.S.G. § 4A1.3 cmt. n.3. The Court does not find that this characterization describes the Defendant's history. He has continued to engage in serious drug trafficking offenses.
However, like the rest of the sentencing guidelines, the guidelines provision allowing a court to grant a below-guidelines sentence when the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes is merely advisory; while a sentencing court has the authority to sentence outside the guidelines upon consideration of § 4A1.3(b)(1), it is not required to do so. See United States v. Marin-Castano, 688 F.3d 899, 905 (7th Cir. 2012); see also United States v. Turner, 569 F.3d 637, 640 (7th Cir. 2009) (noting that "downward departures, ' per se, " had become obsolete, and that arguments related to guideline departures should be analyzed in the context of the § 3553(a) factors). The Court's duty is to properly calculate the guideline range and then come up with a reasonable sentence under § 3553(a). See United States v. Munoz, 610 F.3d 989, 994 (7th Cir. 2010).
The Defendant does not dispute that he qualifies as a career offender and that probation officer correctly calculated his Guideline range as 292 to 365 months of imprisonment. However, the Defendant asked the Court to impose a sentence below the advisory Guideline range. In imposing a sentence, § 3553(a) requires a court to consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed-
(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 ...