At page 73 Determining appropriateness of guideline downward departure12 citing cases“the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history.”
- United States v. Bruce Rainey, No. 09-2834 (7th Cir. Dec. 8, 2010).unpublishedUnited States v. Abbott, 30 F.3d 71, 73 (7th Cir. 1994).2 2 Beginning with United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005), we have said often that Booker rendered the Guidelines’ concept of departures “obsolete.” In a strict l…
- United States v. Rainey, 404 F. App'x 46 (7th Cir. 2010).unpublishedUnited States v. Abbott, 30 F.3d 71, 73 (7th Cir.1994). 2 The sentencing court made clear that it simply was not convinced by Cobb’s arguments for a lower sentence.
- United States v. Lindsey, 112 F. App'x 510 (7th Cir. 2004).unpublishedWhile we do not reach the issue of the applicability of the downward departure based on over-representation, as the district court should be the first to assess that issue, we do note that § 4A1.3(b)(l) of the guidelines permits a downward…
- United States v. Frank E. Abbott, 129 F.3d 119 (7th Cir. 1997).unpublishedU.S. v. Abbott, 30 F.3d 71, 73 (7th Cir.1994).
- United States v. John R. Schaefer & Charles A. Schaefer, 107 F.3d 1280 (7th Cir. 1997).publishedWe refuse to mandate that a trial judge state reasons for opting not to depart downward from the Guideline range, United States v. Cureton, 89 F.3d 469, 474 (7th Cir.1996) (citing United States v. Abbott, 30 F.3d 71, 73 (7th Cir.1994)), .a…
- United States v. Arthur A. Cureton, 89 F.3d 469 (7th Cir. 1996).published We have never required a district court to enumerate its reasons for refusing to depart downward from the guidelines range, United States v. Abbott, 30 F.3d 71, 73 (1994) (citing United States v. Brown, 985 F.2d 478, 481 (9th Cir.1993)), a…
- United States v. Sammie L. Bradford, 78 F.3d 1216 (7th Cir. 1996).published United States v. Abbott, 30 F.3d 71, 73 (7th Cir.1994); United States v. Poff, 926 F.2d 588, 590 (7th Cir.1991), cert. denied, 502 U.S. 827 , 112 S.Ct. 96 , 116 L.Ed.2d 67 (1991).
- United States v. Jesus S. Covarrubias & Graciela Covarrubias, 65 F.3d 1362 (7th Cir. 1995).publishedUnited States v. Abbott, 30 F.3d 71, 73 (7th Cir.1994).
- Simone v. Worcester Cnty., 52 F.3d 309 (1st Cir. 1995).unpublished(failure to move for exclusion of witness at trial constitutes waiver of argument on appeal that court erred in failing to exclude witness)
- United States v. John T. Waite, 37 F.3d 1501 (7th Cir. 1994).publishedUnited States v. Abbott, 30 F.3d 71, 73 (7th Cir.1994); United States v. Schechter, 13 F.3d 1117, 1120 (7th Cir.1994).
Show 2 more citing cases
- United States v. Chet Govan, 152 F.3d 1088 (9th Cir. 1998).publishedSee Abbott, 30 F.3d at 73 (“Because a sentencing court is not obligated to state its reasons for refusing to depart from a sentence within the Guideline range, United States v. Brown, 985 F.2d 478, 481 (9th Cir.1993), this Court would ordi…
- United States v. Zlatko A. Mejaski, 37 F.3d 1501 (7th Cir. 1994).publishedUnited States v. Rosalez-Cortez, 19 F.3d 1210, 1221 (7th Cir.1994); see also United States v. Abbott, 30 F.3d 71, 73 (7th Cir.1994). 14 We therefore lack jurisdiction to review the district judge's discretionary determination that the Guid…
At page 72 Departing from criminal history category based on circumstances5 citing casesremanding for consideration of § 4A1.3 departure where defendant argued that priors were “petty crimes related to his substance abuse addictions
- United States v. Anderson, 955 F. Supp. 935 (N.D. Ill. 1997).published Under Section 4A1.3 of the Sentencing Guidelines, the court may depart downward if it “concludes that a defendant’s criminal history category significantly over-represents the seriousness of a defendant’s criminal history or the likelihood…
- United States v. Jackie W. Balentine, 106 F.3d 404 (7th Cir. 1997).unpublishedUnited States v. Cureton, 89 F.3d 469, 474 (7th Cir.1996); United States v. Abbott, 30 F.3d 71, 72-73 (7th Cir.1994); United States v. Poff, 926 F.2d 588, 591 (7th Cir.), cert. denied, 502 U.S. 827 (1991). 28 Balentine attempts to bring hi…
- United States v. Raymond E. King, 78 F.3d 587 (7th Cir. 1996).unpublishedSee generally United States v. Abbott, 30 F.3d 71, 72-3 (7th Cir.1994). 13 The district judge clearly indicated that he considered the somewhat unusual facets of the defendant's criminal history and would 5 have imposed a sentence at the b…
- United States v. Risso, 279 F. Supp. 2d 1001 (E.D. Wis. 2003).published(remanding for consideration of § 4A1.3 departure where defendant argued that priors were “petty crimes related to his substance abuse addictions)
- United States v. Hammond, 240 F. Supp. 2d 872 (E.D. Wis. 2003).published (remanding for consideration of § 4A1.3 departure where defendant argued that priors were committed in his youth)
v.
Frank Edward ABBOTT, Defendant-Appellant
In January 1993, a grand jury brought a four-count indictment against defendant Frank Abbott, charging him with (1) possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute marijuana in violation of the same statute; (3) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); and (4) use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). After a jury trial he was convicted on all four counts. Defendant was sentenced to prison for 262 months on Counts 1 and 3, 60 months on Count 2 (to be served concurrently with the sentence for Counts 1 and 3), and 60 months on Count 4 (to run consecutive to the terms imposed for the other counts), for a total of 322 months. Defendant now appeals both his conviction and his sentence.
I.
Dissatisfied with his trial attorney, defendant presented his own, handwritten, objections to the presentence report. Although never stating so explicitly, Abbott’s objections clearly indicated that he believed that the presentence report over-represented his criminal history: he complained, for example, that certain of the crimes used in determining his criminal history points were committed in his youth or were petty crimes related to his substance addictions. He repeated these objections at his sentencing hearing.
The district court apparently shared Abbott’s belief that his criminal record as depicted in the presentence report exaggerated the seriousness of his criminal conduct. The court made clear that it “ ‘d[id] not consider Mr. Abbott to be a villainous criminal ...,’” but instead believed that “ ‘defendant’s prior record illustrates impulsive, alcohol related behavior.’ ” (R. 83, quoting from presen-tence report). The court, however, concluded that despite its misgivings about the appropriateness of the sentence, it was not authorized by the Sentencing Guidelines to reduce Abbott’s sentence to reflect its belief that Abbott was not a villainous criminal. [1] The court therefore adopted the conclusions of the presentence report and sentenced Abbott to 322 months incarceration.
The Sentencing Guidelines, however, permit a district court judge to depart[*73] from a recommended sentence if he believes that a defendant’s criminal history category significantly over-represents the seriousness of his criminal record or the likelihood that he will commit further crimes. U.S.S.G. § 4A1.3. Because a sentencing court is not obligated to state its reasons for refusing to depart from a sentence within the Guideline range, United States v. Brown, 985 F.2d 478, 481 (9th Cir.1993), this Court would ordinarily assume that the district court’s failure to utilize a Guideline provision available to it, indicated that it had considered and rejected its application. Here, however, the district court made it known that it believed that it did not have the authority to depart from what it considered an inappropriate sentence. And since under § 4A1.3 the district court did in fact have the authority to depart from the sentencing range otherwise prescribed by the Guidelines, Abbott’s sentence is vacated and this cause remanded to the trial court for it to determine whether a downward departure is appropriate. United States v. Shoupe, 988 F.2d 440, 445-47 (3d Cir.1993) (remanding ease where district court erroneously believed that it did not have the power to depart under U.S.S.G. § 4A1.3); United States v. Beckham, 968 F.2d 47, 53 (D.C.Cir.1992) (same); United States v. Adkins, 937 F.2d 947, 953 (4th Cir.1991) (same).
We neither express nor intend to imply an opinion on the propriety of departure in this ease. Departure under U.S.S.G. § 4A1.3 is appropriate when a district court determines that a defendant’s criminal history category significantly over-represents the seriousness of his past conduct. While the district court has made it clear that it does not believe Abbott to be a villainous criminal, the court may nevertheless find that the criminal history category indicated by the presentence report substantially reflects the seriousness of the defendant’s past convictions.
II.
One of the government’s witnesses against defendant was Frank Strong, whose testimony tended to support the government’s claim that defendant possessed a firearm and used it in connection with drug trafficking (Counts 3 and 4). Abbott claims that Strong’s testimony was tainted because prior to testifying he was housed in a cell near Michael Jenkins, a government trial witness who had described his own testimony against Abbott to Strong. There is nothing in the record to-support Abbott’s claim that this conversation actually occurred, and he offers no indication of how he believes this alleged conversation prejudiced his case. His claim is, therefore, without merit.
Defendant also contends that he was prejudiced by the court’s refusal to exclude witnesses pursuant to Federal Rule of Evidence 615. However, he never moved to exclude any witnesses and therefore waived any argument regarding the district court’s failure to remove witnesses from the courtroom. Moreover, as defendant acknowledges, the court eventually ordered the exclusion of all witnesses.
Finally, this Court has considered all other objections to his sentence and conviction made by defendant here and in the district court and has concluded that they are without merit.
Defendant’s sentence is vacated and the cause is remanded for resentencing.
. "This [sentence],” Judge Baker noted, "perhaps is another illustration of the lack of wisdom in mandatory minimum sentences, but I cannot take it upon myself to change the law that Congress has written because I think it is an inappropriate disposition. That, in sum and substance, is the reason for this court imposing the sentence. Congress has told me that I must.” (R. 83).