United States v. Vandurmen

83 F. Supp. 3d 815, 2015 U.S. Dist. LEXIS 118, 2015 WL 58735
CourtDistrict Court, N.D. Indiana
DecidedJanuary 5, 2015
DocketCase No. 1:13-CR-64-TLS
StatusPublished

This text of 83 F. Supp. 3d 815 (United States v. Vandurmen) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vandurmen, 83 F. Supp. 3d 815, 2015 U.S. Dist. LEXIS 118, 2015 WL 58735 (N.D. Ind. 2015).

Opinion

OPINION AND ORDER

THERESA L. SPRINGMANN, District Judge.

The Defendant, Hayley VanDurmen, pled guilty to Count 1 of an Indictment charging her with knowingly selling a firearm to a convicted felon and aiding and abetting, in violation of 18 U.S.C. § 922(d)(1) and (2), and 18 U.S.C. § 2. An officer with the United States Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the Defendant’s sentencing. The PSR establishes that the Defendant’s total offense level is 15 and criminal history category is I. The Defendant is asking for a four-level variance pursuant to 18 U.S.C. § 3553(a). The Court conducted an evidentiary hearing [ECF No. 85] on October 2, 2014. Defense counsel and the Government decided that supplemental briefing was unnecessary and the Court heard oral argument regarding the § 3553(a) factors. For the reasons provided below, the Court will grant the Defendant’s request for a four-level variance pursuant to the § 3553(a) factors.

FINDINGS OF FACT

Facts relevant to sentencing should be proved by a preponderance of the evidence. United States v. England, 555 F.3d 616, 622 (7th Cir.2009); see also United States v. Krieger, 628 F.3d 857, 862 (7th Cir.2010) (advising that sentencing factors that do not increase the defendant’s sentence beyond the statutory range may be found by the court at sentencing by a preponderance of the evidence). “A proposition proved by a preponderance of the evidence is one that has been shown to be more likely than not.” United States v. Davis, 682 F.3d 596, 612 [817]*817(7th Cir.2012). The Federal Rules of Evidence do not apply to sentencing, United States v. Dean, 414 F.3d 725, 730 (7th Cir.2005), and a court may rely on hearsay as long as the information “has sufficient indicia of reliability to support its probable accuracy,” United States v. Rollins, 544 F.3d 820, 838 (7th Cir.2008) (quotation marks omitted); see also United States v. Isom, 635 F.3d 904, 908 (7th Cir.2011) (“At sentencing, courts may rely on presen-tence reports containing even double-hearsay, i.e., statements by coconspirators to investigators, so long as those statements are reliable.”). At sentencing, “a district judge ‘may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ ” United States v. Bautista, 532 F.3d 667, 672 (7th Cir.2008) (quoting United States v. Johnson, 489 F.3d 794, 796-97 (7th Cir.2007)). “Sentencing judges necessarily have ‘discretion to draw conclusions about the testimony given and evidence introduced at sentencing,’ but ‘due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations.’ ” United States v. Bradley, 628 F.3d 394, 400 (7th Cir.2010) (quoting England, 555 F.3d at 622). “A district court may rely on facts asserted in the PSR if the PSR is based on sufficiently reliable information.” Rollins, 544 F.3d at 838. “The defendant bears the burden of proving that the PSR is inaccurate or unreliable,” and if he offers no evidence to question the PSR’s accuracy, the court may rely on it. Id.

On October 2, 2014, the Court held an evidentiary hearing in which the following facts were determined: The Defendant, a twenty-two-year-old woman who was born in South Bend, Indiana, moved to Fort Wayne with her mother, father, and three older sisters in 2002. She attended Elm-hurst High School for three years and, after it closed, completed her final year and graduated from Northrop High School in 2011. She was active in school and received awards for good attendance and grades, including being on the honor roll. She appears to have had a comfortable childhood and did not get into any type of trouble apart from the ordinary parent/child discipline. By all accounts, the Defendant had good, healthy relationships with her parents, siblings, and friends.

During high school, the Defendant worked multiple part-time jobs. At the time of her graduation, the Defendant was still unsure about what she wanted to do with her future and decided to take a break from school, working full-time as a maid and hanging out with her friends. She leased a house that she shared with two roommates, but when those roommates departed she was strapped financially to pay rent and was looking for new roommates. About that time the Defendant met Trevor Rodriguez, a cousin of her friend’s boyfriend. Rodriguez needed a place to live, and she needed help with rent, so the Defendant decided to help him out and take him in as a roommate. They lived together in rental homes before buying a home together. Within a couple of months, Rodriguez and the Defendant began dating.

Over the course of their relationship Rodriguez isolated himself from others and was constantly angry, jealous, and controlling of the Defendant. The record is replete with incidents where Rodriguez made threats of violence against the Defendant, her family, and her pets in his efforts to control and manipulate the Defendant.

On September 3, 2013, the Defendant was arrested for the instant offense and released to pretrial supervision that same day. The Defendant has not had any [818]*818problems during her pretrial supervision. She has gone back to school and recently-completed an externship, where she hopes to ultimately be hired. She has distanced herself from Rodriguez and any of his known associates. She has restored relationships with her family and friends that suffered while under Rodriguez’s control. The record reflects that the Defendant has resumed the law-abiding life she was leading before her relationship with Rodriguez.

ANALYSIS

The Defendant asks the Court for a four-level variance based on the § 3558(a) sentencing factors, the effect of which would place her in Zone B of the Sentencing Table and thus make her eligible for a sentence of probation. The Defendant argues that such a sentence is sufficient based on the history and characteristics of the Defendant as well as the nature and circumstances of the offense. The Defendant contends that she has learned to be more cautious when helping others so as to protect herself. The Defendant asserts that her arrest and prosecution have been a blessing in disguise because they helped her get out of a bad situation, even though she is still dealing with the consequences of her offense conduct, for which she has accepted responsibility.

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Related

United States v. Krieger
628 F.3d 857 (Seventh Circuit, 2010)
United States v. Bradley
628 F.3d 394 (Seventh Circuit, 2010)
United States v. Isom
635 F.3d 904 (Seventh Circuit, 2011)
United States v. Lavell Dean
414 F.3d 725 (Seventh Circuit, 2005)
United States v. Willie A. Johnson, Also Known as Twan
489 F.3d 794 (Seventh Circuit, 2007)
United States v. Aaron Davis
682 F.3d 596 (Seventh Circuit, 2012)
United States v. England
555 F.3d 616 (Seventh Circuit, 2009)
United States v. Rollins
544 F.3d 820 (Seventh Circuit, 2008)
United States v. Bautista
532 F.3d 667 (Seventh Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
83 F. Supp. 3d 815, 2015 U.S. Dist. LEXIS 118, 2015 WL 58735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vandurmen-innd-2015.