which he received a term of probation, community service and
restitution. This results in an additional criminal history point
The instant crime occurred in October, 1997. Defendant was on
probation until January, 1998. Thus, at the time of the instant
offense, defendant was on probation. An additional 2 points are
added (to 11) pursuant to § 4A1.1(d). Finally, because the
instant offense was committed less than 2 years after his release
from custody (February 15, 1996), an additional criminal history
point (to 12) is warranted pursuant to § 4A1.1(e). Twelve
criminal history points places him in Criminal History Category
Criminal History Category IV includes those who have
accumulated 7, 8 or 9 criminal history points. Category V starts
with those who have accumulated 10 criminal history points.
Category V is the highest category of criminal offender short of
a career criminal. In reviewing this defendant's convictions, it
appears that he does not belong in such a high category. Several
of his sentences were probation terms or conditional discharges.
Of the three jail sentences he received, only one was for longer
than 60 days. On balance, I find that Criminal History Category
IV, while still high, is a much more appropriate category
reflecting the seriousness of this defendant's past criminal
The Government opposes this departure stating that the
defendant has eight prior convictions.*fn3 Two of those eight
convictions were for loitering and trespassing and were so minor
they did not even count for guideline purposes. The remaining six
convictions occurred over little more than a four-year period of
time from October 1990 through January 1995. These convictions,
collectively, resulted in no more than 2 years in jail. In
addition, 3 criminal history points are the result of the
cumulative impact of § 4A1.1(d) and 4A1.1(e) which adds to the
overstatement. For these reasons, I conclude that Criminal
History Category V overstates defendant's criminal history.
Typically, a defendant who falls in category V has committed
serious crimes requiring lengthy imprisonment. A high criminal
history category demonstrates that there is little reason to
believe that previous punishment has had any impact on the
defendant and that he is unlikely to be rehabilitated. That
concept accounts, in part, for the lengthening of guideline
sentences as the criminal history category increases. Most of
DeJesus' criminal conduct was committed before he was 21 years
old. He is now a husband and first-time father, and this
responsibility provides a strong incentive for rehabilitation. A
lengthy sentence required by a higher criminal history category
will lessen, not increase, the likelihood of rehabilitation.
Thus, I conclude that because most of his earlier crimes were
non-violent and because he has not served any significant terms
of incarceration, his Criminal History Category is better
represented by Criminal History Category IV.
B. Downward Departure — Provocation/Victim Conduct
Section 5K2.10 states that "if the victim's wrongful conduct
contributed significantly to provoking the offense behavior, the
court may reduce the sentence below the guideline range to
reflect the nature and circumstances of the offense." In fact,
the Supreme Court has held that victim provocation is "an example
of an encouraged downward departure factor . . ." Koon, 518
U.S. at 94, 116 S.Ct. 2035. Here, I have no doubt that the
victim's wrongful conduct contributed significantly to the
offense behavior. In addition, it was reasonable for the
defendant to feel
seriously threatened by Sierra's threat to kill him.
The Guidelines direct the court to consider five circumstances
in deciding "the extent" of a sentence reduction. These five
factors need not be satisfied before a departure is given.
Rather, once a court has decided that the departure is warranted,
these factors should be considered in deciding how much of a
departure to give.
I will now address each of the factors listed in the
(1) The size and strength of the victim versus that
of the defendant. In fact, I agree with the defense
that the relevant issue here is the size and
strength of the victim versus that of his victim,
namely defendant's girlfriend. That was clearly
disproportionate. DeJesus had reason to believe
that Sierra posed a real and terrible threat to his
defenseless girlfriend and future child. In
addition, the defendant and his victim were
relatively similar in size and strength, which does
not cut in either direction.
(2) The persistence of the victim's conduct and any
efforts by the defendant to prevent confrontation.
This victim clearly had violent tendencies. He had
expressed them many times before and would likely
do so again. As noted earlier, defendant's first
response was to call the police, until he was
prevented from doing so by his wife who was also
the victim's sister. This cuts in defendant's
(3) The danger reasonably perceived by the defendant,
including the victim's reputation for violence.
After beating his pregnant sister, there was every
reason to believe that Sierra posed a real threat
to DeJesus, his girlfriend, and unborn child.
(4) The danger actually presented to the defendant by
the victim. The same conclusion reached in (3).
(5) Any other relevant conduct by the victim: His
decision to attack a defenseless pregnant woman
demonstrates the depravity of his conduct and the
risk of future attacks.
The Government argues against this departure and has cited
cases disallowing the departure based on the disproportionality
of the response. See United States v. Morin, 80 F.3d 124, 128
(4th Cir. 1996) ("`[a] concern for the proportionality of the
defendant's response is manifested by the terms of § 5K2.10"')
(quoting United States v. Shortt, 919 F.2d 1325, 1328 (8th Cir.
1990)). These cases are, however, inapposite. In Morin, the
defendant was found guilty of murder-for-hire. 80 F.3d at 126.
The intended victim, Dr. Soto, was to be murdered for allegedly
abusing his wife, Ms. Perstolen, whom the defendant had fallen in
love with. Id. at 125. The court rejected a downward departure
based on § 5K2.10 on the ground that defendant's response to the
perceived abuse was disproportional.*fn4 The court stated:
Here, Morin was in no personal danger from Dr. Soto.
He did not attempt to prevent a confrontation with
his intended victim. He did not even attempt to
insulate Ms. Perstolen from the perceived abuse (for
example, he could have contacted law enforcement
officials about Dr. Soto's alleged behavior).
Instead, Morin immediately set out to kill Dr. Soto.
The victim misconduct guideline was not intended to
benefit a defendant who sets out to murder someone
whose conduct fails to meet with his approval.
Id. at 128 (citation omitted). Similarly, in Shortt the
appellate court rejected a downward departure based on victim
provocation. 919 F.2d at 1328. There, the defendant placed a bomb
in the truck of a man who was having an affair with his wife.
Id. at 1325. According to the court,