United States District Court, D. Nebraska
JOSEPH F. BATAILLON, District Judge.
This Sentencing Memorandum supplements findings made on the record at defendant's sentencing hearing on February 21, 2014.
Defendant was originally charged with possession with intent to distribute 5 grams or more of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and(b)(1). Filing No. 1, Indictment. That offense carries a mandatory minimum sentence of five years and a maximum of forty years. He challenged the evidence against him in a motion to suppress that was granted by the court. Filing No. 18, Motion to Suppress; Filing No. 29, Findings and Recommendation; Filing No. 35, Memorandum and Order. The court's order suppressing the evidence was later reversed by the Eighth Circuit. See Filing No. 42, Interlocutory Appeal; Filing No. 57, Eighth Circuit Court of Appeals opinion.
The Indictment in this case was filed on August 22, 2012. Mr. Morgan was originally placed on pretrial release on August 29, 2012. While on pretrial release, he participated in the outpatient chemical-dependency treatment program at Stephen Center in Omaha, Nebraska. He tested positive for drug use twice in November 2012. He admitted to allegations that he violated the conditions of his pretrial release and the court so found. He was allowed to remain on bond but was ordered to follow the recommendations of Pretrial Services with respect to drug treatment. He was ultimately discharged unsuccessfully from the treatment program on February 18, 2013. Subsequently, his pretrial release was revoked on June 21, 2013.
On November 22, 2013, the government filed a one count Information charging the defendant with possession with intent to distribute actual methamphetamine, with no quantity specified. Filing No. 66. The offense carries a statutory term of imprisonment of zero to twenty years. 21 U.S.C. § 841. The defendant waived Indictment and entered a plea of guilty to the charge in the Information. Filing No. 69, Text Minute Entry. The court accepted the defendant's plea and directed the United States Office of Probation (hereinafter, "the Probation Office") to prepare a Presentence Investigation Report (hereinafter, "PSR") that calculated the defendant's sentence under the United States Sentencing Guidelines ("the Guidelines"). Id.
In the PSR, the Probation Office identified U.S.S.G. § 2D1.1 as the applicable Guidelines base offense level provision and determined that the defendant's base offense level was 28, based on a quantity determination of between 26.25 grams of actual methamphetamine. Filing No. 79, PSR (sealed) at 6-7. It then subtracted three levels for the defendant's acceptance of responsibility under U.S.S.G. § 3E1.1 (a) & (b), resulting in a total offense level of 25. Id. The defendant's criminal history was calculated to be criminal history category II, based on the assessment of 2 criminal history points for a conviction for "Attempt of a Class 3A or 4 Felony amended from Possession of Controlled Substance" on June 22, 2012, for which he was sentenced on March 18, 2013, to 60 days in jail, with credit for 39 days. Id. at 10-13. No other criminal history points were assessed because the defendant has only traffic citations and misdemeanor convictions for which he was fined or received a sentence of fewer than 30 days. At criminal history category II and base offense level 25, the defendant's sentencing range under the Guidelines is 63 to 78 months. Id. at 23.
The following facts are set out in the PSR. See id. at 4-13. The offense conduct is based on the prosecutor's version of events. Id. at 5. On April 17, 2012, Omaha Police Department officers were patrolling near the area of 7910 Cass Street and observed a vehicle parked in a grocery store parking lot. Id. The officers approached the vehicle, they observed the driver, Shawn Morgan, reaching under the seat. Id. Defendant Morgan was removed from the vehicle and a lock box was discovered under the seat. Id. Inside, officers found approximately 30 grams (95%) of methamphetamine and 16.4 grams of cocaine. Id. The defendant admitted possessing the drugs in a presentence investigation interview, but stated they were "primarily for personal use, but he would sell some to support his and his wife's drug habit." Id. at 6.
The defendant is thirty-six years old. Id. at 2. He is married and has two children, ages nine and twelve. Id. at 9-10. His wife is currently incarcerated for a shoplifting offense. Id. at 10. She has a history of substance abuse and has been addicted to methamphetamine for over 10 years. Id. He stated he intends to divorce her after he serves his sentence. Id. He is currently in a relationship with a woman with no criminal record or history of drug use. Id. at 11.
He completed tenth grade and obtained his GED. Id. at 12. He was employed as an over-the-road truck driver 1999 to 2011, at one time earning close to $200, 000 per year. Id. at 13. While on pretrial release he worked as a yard horse driver, but lost that job for violating his pretrial release. Id.
He completed a substance abuse evaluation in September 2012 and reported the he first consumed alcohol at age 16 and marijuana at age 18. Id. at 11. From age 18 to 34 he drank only once a month and has only used marijuana a few times in his life. Id. He reported first using methamphetamine at age 34, smoking the drug two to three times weekly and using 1.5 grams over a one-week period. Id. He began using cocaine at age 35, sometimes using it in lieu of methamphetamine, at the same frequency and amount. Id. He has been diagnosed with a dependence to amphetamine and cocaine. Id. at 12. He received chemical dependency treatment a the Stephen Center outpatient program in Omaha, but did not successfully complete treatment. Id. Intensive outpatient treatment was recommended, but he could not afford it. Id.
The government accepted and adopted the findings in the PSR at the sentencing hearing. The defendant moved for a downward departure for overstatement of criminal history under U.S.S.G. § 4A1.3(b)(1) and/or a variance from the Guidelines. Filing No. 73. He argued that the June 2012 conviction was related to the instant offense and should not result in the assessment of any criminal history points. He also moved for a two-level "safety valve" reduction under U.S.S.G. § 2D1.11. Further, he argued for an outside-the-Guidelines sentence or variance in consideration of the sentencing factors outlined in 18 U.S.C. § 3553(a).
Although a sentencing court must give respectful consideration to the Sentencing Guidelines, the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), permits the court to tailor the sentence in light of other statutory concerns as well. Pepper v. United States, 131 S.Ct. 1229, 1241 (2011). The district court follows the sentencing framework set forth by the Supreme Court in Gall v. United States, 552 U.S. 38, 49-51 (2007). See United States v. Washington, 515 F.3d 861, 865-66 (8th Cir. 2008) ("We urge district courts to continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a)."). The first step is to calculate the defendant's advisory Guidelines sentencing range, which provides "the starting point and the initial benchmark" for any sentence. Gall, 552 U.S. at 49. Next, the court determines whether any traditional Guidelines ...