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UNITED STATES v. STEVENSON

August 27, 1993

UNITED STATES OF AMERICA
v.
WILLIAM STEVENSON, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK, U.S.D.J.

 VINCENT L. BRODERICK, U.S.D.J.

 I

 William Stevenson was convicted on a plea of guilty for stealing an automobile, involving violations of 18 USC 2312, 2313 and 511(a). Stevenson had been convicted of unlawful possession of marijuana in 1979 and 1983, leading to fines of $ 10 and $ 100 respectively. I declined to consider these two incidents in determining Stevenson's criminal history for purposes of sentencing.

 On June 23, 1993 I sentenced Stevenson to three years' probation including six months' home confinement with electronic monitoring. This memorandum sets forth my reasons for classifying the defendant William Stevenson in criminal history category I rather than II for purposes of sentencing.

 II

 Under 18 USC 3553(b), I am empowered to depart from an otherwise applicable guideline where "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described" as determined from the "sentencing guidelines, policy statements, and official commentary . . ."

 The purposes of considering criminal history in sentencing are to determine whether, based upon past indications, a defendant requires a more severe sentence "to protect the public from further crimes," 18 USC 3553(a)(2)(C); to determine the extent of general or specific deterrence (§ 3553[a][2][B]); and to determine the most effective means of providing correctional treatment. 18 USC 3553(a)(2)(D). The United States Sentencing Guidelines do not, however, provide any criteria for evaluating the relevance of prior convictions to the case in which sentence is to be imposed. This is doubtless so because a complete description of relevant factors would be amorphous and either incomplete or endless.

 Where prior crimes involve behavior posing significant risks to the public, moral turpitude, organized criminal activity, fraudulent intent, or behavior related to the activity for which the defendant is being sentenced, consideration of such crimes in determining the defendant's sentence is ordinarily appropriate.

 It is also ordinarily appropriate to consider, in sentencing, a past history of illegal involvement with controlled substances. Such involvement causes harm to society by promoting drug addiction, and it leads to secondary illegal behavior such as bribery, violence against rival distributors, and degradation of neighborhoods. See Stewart v. United States, 817 F. Supp. 12 (SDNY 1993).

 When the role of a defendant is that of an individual drug consumer, however, these adverse impacts on society, although significant in the aggregate, are relatively insignificant with regard to the individual case. In such instances consequences out of line with reality are likely to be counterproductive. See United States v. Caruso, 814 F. Supp. 382 (SDNY 1993).

 Neither the purposes of sentencing as set forth in 18 USC 3553(a) nor anything in the Guidelines indicate that two minor unrelated violations involving personal consumption of one of the less "hard" controlled substances a number of years prior to the offense before the court should require an enhancement of sentence.

 A situation is thus presented in which a downward departure would be appropriate with respect to criminal history by eliminating from the computation Stevenson's personal-use controlled substance ...


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