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United States v. Sanders

United States District Court, N.D. Indiana, Fort Wayne Division

December 3, 2019

UNITED STATES OF AMERICA
v.
JOSEPH E. SANDERS

          SENTENCING OPINION

          HOLLY A. BRADY JUDGE

         The Defendant, Joseph E. Sanders, is awaiting sentence on his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 1s), and for possessing with intent to distribute heroin, marijuana, cocaine, and fentanyl in violation of 21 U.S.C. § 841(a)(1) (Count 2s). An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) [Second Revised Presentence Investigation Report, ECF No. 162] in anticipation of Defendant's sentencing. Defendant has objected to several of the Probation Officer's conclusions. He objects to the determination that his prior conviction for felony domestic battery qualifies as a crime of violence under United States Sentencing Guideline § 4B1.2(a). Defendant also disagrees with the drug quantity calculation, as well as the enhancements for obstruction of justice under § 3C1.2 and possession of a dangerous weapon under § 2D.1(b)(1).

         This Opinion resolves the objections. A determination of the sentence in consideration of all the statutory factors, see 18 U.S.C. § 3553(a), will be made at the time of sentencing.

         ANALYSIS

         Due process requires that sentencing determinations be based on reliable evidence, rather than speculation or unfounded allegations. United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007). “Evidence will satisfy this requirement if it bears sufficient indicia of reliability to support its probable accuracy.” Id. (internal quotation marks and punctuation omitted). The preponderance of the evidence standard applies to facts that are relevant to sentencing. United States v. England, 555 F.3d 616, 622 (7th Cir. 2009); 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. Crime of Violence - Domestic Battery

         The PSR's recommendation for career offender status is based on two Indiana convictions: a 2011 conviction for dealing in cocaine or narcotic drug, and a 2012 domestic battery conviction. The Information for the domestic battery charged that, on February 12, 2012, Defendant

did knowingly or intentionally touch Jasmine Vasquez, who has a child in common with said defendant, in a rude, insolent, or angry manner, resulting in bodily injury to wit: physical pain and/or visible injury, in the physical presence of a child less than sixteen years of age, knowing the child was present and might be able to see or hear the offense.

(PSR ¶ 87.) The Defendant contends that his conviction for domestic battery does not qualify as a crime of violence because it does not require the use of violent physical force.

         When he was convicted in 2012, the Indiana statute criminalized the following conduct:

(a) A person who knowingly or intentionally touches an individual who:
(1) is or was a spouse of the other person (2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person; in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor.
(b) However, the offense under subsection (a) is a Class D felony if the person who ...

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