United States v. Leonard Anthony Dalecke

29 F.3d 1044, 1994 U.S. App. LEXIS 17738, 1994 WL 369907
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 18, 1994
Docket93-2228
StatusPublished
Cited by7 cases

This text of 29 F.3d 1044 (United States v. Leonard Anthony Dalecke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Leonard Anthony Dalecke, 29 F.3d 1044, 1994 U.S. App. LEXIS 17738, 1994 WL 369907 (6th Cir. 1994).

Opinions

RYAN, Circuit Judge, delivered the opinion of the court, in which DAUGHTREY, Circuit Judge, joined. KEITH, Circuit Judge (pp. 11-12), delivered a separate concurring opinion.

RYAN, Circuit Judge.

The plaintiff, the United States of America, appeals the district court’s decision to depart downward from the federal sentencing guidelines in sentencing the defendant, Leonard Anthony Dalecke. This appeal presents the question of whether the district court improperly based its departure on fac-. tors taken into account by the guidelines themselves. We conclude that the district court erred in granting the departure because the factors on which it relied all were adequately contemplated by the guidelines. Accordingly, we vacate the district court’s sentencing order, and remand the case for resentencing.

I.

On December 1, 1991, the defendant was arrested by the Kentwood, Michigan, police department, and charged with felonious assault on his live-in girlfriend, Heather Hyde. Following the defendant’s release on bond, Hyde informed the local authorities that the defendant kept a sawed-off shotgun in the bedroom of the home they had shared. She told the authorities that she was reporting the weapon out of fear. She also told the police that the defendant conducted gambling activities through the restaurantybar he owned.

Kentwood police subsequently took possession of the firearm reported by Hyde, and identified it as a .20 gauge shotgun with a barrel length measuring 12/á inches, and an overall length totaling 20% inches. The authorities confirmed the firearm was fully functional. A follow-up investigation revealed that, although the defendant had owned the gun for some fifteen years, he had never registered it. The defendant had duly registered other weapons he owned, however, including at least two shotguns, two rifles, and four pistols.

The defendant was indicted by a federal grand jury for possession of a sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). At trial, the defendant testified that he purchased the illegal weapon from one of his bar patrons, and that he had done nothing to alter it. He further testified that for approximately three years, he carried the gun with him to his business establishment for protection. In 1983, after obtaining a concealed weapons permit, the defendant began carrying a pistol to work for protection, and relegated the sawed-off shotgun to home protective use.

Following the defendant’s conviction by a jury, he moved the district court for a downward departure in sentencing, arguing that his offense constituted a single act of “aberrant behavior.” In evaluating whether to grant the motion, the district court noted at sentencing that the defendant’s situation presented several atypical characteristics.

As an initial matter, the district court noted that the defendant did not “actively seek” the weapon. In addition, the court found it significant that the defendant did not, himself, alter the shotgun, and did not use the gun to commit criminal offenses. Finally, the court identified as “most important” the means by which the shotgun was discovered:

The record indicates that the defendant was involved in a domestic dispute with his girl friend and the mother of his son. This assault has led not only to punishment for that assault, which is clearly appropriate, but also to this gun charge and to state prosecution for possession of trace amounts of marijuana and a small amount of cocaine. The court has searched the record in this case and the presentence report in vain in an effort to determine what it is that is concerning this defendant that justifies this expenditure of scarce government resources. While the crimes [1046]*1046which the defendant has been charged are all technically separate offenses, the court believes that they must be considered together to achieve a just and fair sentence.

The court noted that none of these individual factors standing alone warranted a downward departure. However, by aggregating the factors into a single mitigating circumstance, the court justified a five-level downward departure. As a result, instead of sentencing the defendant within the 21- to 27-month sentence range required by the guidelines, the district court sentenced him to nine months’ confinement in a community alternatives program, followed by home detention. The government appealed.

II.

The prosecution argues that the district court erred because it based its departure solely on factors already taken into account by the federal sentencing guidelines. In addition, the prosecution claims that it was improper for the district court to aggregate the factors into a single mitigating circumstance in order to justify the departure.

In contrast, the defendant, relying on an unpublished decision, argues that this court has shown a willingness to permit sentencing courts to aggregate factors that may not, each on its own, be adequate to warrant a departure. In addition, the defendant contends that he has been the victim of unjustified prosecutorial zeal, and that such conduct alone is an atypical circumstance warranting the departure.

We apply a three-step analysis to a sentencing court’s decision to depart from the federal sentencing guidelines:

First, the reviewing court determines whether “the case is sufficiently ‘unusual’ to warrant departure.” ... This is purely a question of law....
“Second, we determine whether the circumstances, if conceptually proper, actually exist in the particular case. That assessment involves factfinding and the trier’s determinations may be set aside only for clear error.” ...
“Third, once we have assured ourselves that the sentencing court considered circumstances appropriate to the departure equation and that those factors enjoyed adequate record support, the direction and degree of departure must, on appeal, be measured by a standard of reasonableness.”

United States v. Brewer, 899 F.2d 503, 506 (6th Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990) (citations omitted).

The discretion of the district court to depart downward from a sentence prescribed by the federal sentencing guidelines is restricted by statute:

The court shall impose a sentence of the kind, and within the range [set forth in the sentencing guidelines] ... unless the court finds that 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.

18 U.S.C. § 3553(b). The guidelines provide that departure may be warranted, either because the guidelines did not take into account a mitigating or aggravating factor at all, or because, “in light of unusual circumstances, the guideline level,” though appropriate in the majority of cases, would be “inadequate” in this particular instance. U.S.S.G. § 5K2.0.

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United States v. Leonard Anthony Dalecke
29 F.3d 1044 (Sixth Circuit, 1994)

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Bluebook (online)
29 F.3d 1044, 1994 U.S. App. LEXIS 17738, 1994 WL 369907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leonard-anthony-dalecke-ca6-1994.