United States District Court, E.D. Virginia, Richmond Division
DAVID J. NOVAK, Magistrate Judge.
Following a traffic stop on April 21, 2013, Defendant was charged with Driving Under the Influence (DUI), his second such offense in five years in violation of the Code of Virginia §§ 18.2-266(ii) and 18.2-270. Defendant pled guilty to the charge on November 8, 2013, and the matter was set for sentencing. On January 22, 2014, the Court provided notice to the parties that the Court may sua sponte upwardly depart from the sentencing guidelines or grant an upward variance on the basis that Defendant's criminal history category understated the seriousness of Defendant's extensive criminal record. (ECF No. 82.) For the reasons stated from the bench during the sentencing hearing and for the reasons set forth below, the Court finds that an upward departure is warranted based upon a guideline calculation that understates the seriousness of Defendant's criminal history.
I. Factual Background
On April 21, 2013, shortly after 9:10 p.m., Officer Michael Purdy observed Defendant's vehicle travelling westbound on Route 36. (Mot. to Suppress Hearing Tr. at 12.) Officer Purdy initiated a traffic stop upon Defendant's vehicle weaving in his lane, touching and riding upon the fog line and nearly colliding with another driver. (Raynor Video at 21:10-11.) After stopping Defendant's vehicle and detecting a strong odor of alcohol emitting from Defendant, Officer Purdy administered field sobriety tests, which Defendant unsuccessfully attempted to complete.
During the stop, Defendant agreed to submit a breath sample, but provided six deficient samples, which constituted a refusal to provide a sample. Defendant began shaking, biting his fingers and arms, and yelling - claiming that he was experiencing diabetic shock. Paramedics responded to the scene and determined that Defendant was not experiencing diabetic shock, but transported Defendant to the hospital for a mental evaluation. During Defendant's treatment at the hospital, a blood test indicated that Defendant's blood alcohol content registered at.219 - roughly three times the legal limit in Virginia. Thereafter, finding that Defendant suffered no medical problems, Defendant was released from the hospital.
II. Procedural Background
Defendant was charged with Driving Under the Influence of Alcohol, his second within five years - stemming from a previous DUI conviction on June 22, 2010- and Failure to Maintain a Single Lane of Travel with notice provided that Defendant refused to submit to a blood, breath or urine test. (Criminal Information (ECF No. 1) at 1-2.) On May 10, 2013, Defendant appeared before the Court for his Initial Appearance and Arraignment on the charges and entered a plea of not guilty. (ECF No. 2.) The Court placed Defendant under pretrial release supervision with a condition that "the defendant must not violate federal, state, or local law while on release." (Order Setting Conditions of Release (ECF No. 5) at 1.)
On August 20, 2013, in violation of this Court's conditions of supervised release, Defendant was arrested in Petersburg, Virginia, and charged with felonious assault, stemming from an altercation in which Defendant beat a woman with a baseball bat. (Pet. for Action on Conditions of Pretrial Release (ECF No. 27).) On October 4, 2013, as a result of the new assault charge, the Court revoked Defendant's bond and ordered his detention pending resolution of the state assault charges. (ECF No. 35.) Defendant ultimately pled guilty to an amended charge of
Assault and Battery (misdemeanor) in the Petersburg Circuit Court on March 11, 2014, and was sentenced to twelve months' imprisonment with six months suspended for the baseball bat assault. (Presentence Report (PSR) Third Addendum (ECF No. 84) at A-3.)
On November 8, 2013, Defendant pled guilty to Driving Under the Influence of Alcohol and Failure to Maintain a Single Lane of Travel. (ECF No. 71.) The Court initially scheduled the matter for sentencing on January 24, 2014, and ordered a Presentence Investigation and Report (PSR). Considering only Defendant's convictions within the past ten years, the PSR calculated a criminal history category of III for Defendant. (PSR at 11-13, 21.) The PSR also identified 31 misdemeanor offenses and one felony conviction that were not scored when calculating Defendant's criminal history category due to the age of the convictions as potentially warranting an upward departure. (PSR at 21.) The unscored convictions included nine worthless check convictions, two resisting arrest convictions, one resisting public officer conviction, seven convictions for driving while license revoked, one false summons to a police officer, three assault convictions, one injury to real property conviction, one larceny conviction and one conviction for possession of stolen goods. (PSR at 5-16.) Furthermore, the PSR also identified three previous convictions for driving while impaired - conduct very similar to the offense at issue - as being unscored. (PSR at 5-13.) Based on a criminal history category III and a total offense level of four, the guidelines provided a range of 0-6 months' imprisonment; however, the offense mandated a minimum sentence of 20 days' imprisonment. (PSR at 21.)
After receiving the PSR, the Court continued the sentencing to March 21, 2014, and provided the parties with notice in conformity with Fed. R. Crim. P. 32(h) that the Court may sua sponte depart upward on the basis that Defendant's criminal history category understated Defendant's extensive criminal record and due to Defendant's conduct while under this Court's supervision. (ECF No. 82.) The Government did not file a position as to the upward departure. Defendant filed a written objection to an upward departure before the sentencing hearing. (Def.'s Position on Upward Departure or Variance (ECF No. 83).)
The Court then conducted a sentencing hearing on March 21, 2014. Both parties stated that they had no objections to the PSR and the calculation of a range of 0-6 months' imprisonment for a criminal history category III with an offense level 4, so the Court adopted the PSR. The Court then turned to whether it should upwardly depart. At that time, the Government objected to the departure and recommended a sentence of 60 days' imprisonment. Defense counsel also objected. During defense counsel's argument, the Court engaged defense counsel regarding the appropriateness of an upward departure, while also thoroughly addressing each factor set forth in 18 U.S.C. § 3553(a). Notably, during the hearing, both parties agreed that the Court could sua sponte depart upward after having given notice of the possibility of such a departure.
After considering the position of both parties, the basis for an upward departure as set forth in U.S.S.G. § 4A1.3 and the factors set forth in 18 U.S.C. § 3553(a), the Court determined that an upward departure was warranted. The Court then turned to the amount of the departure and the parties pointed out that, without the time limitations set forth in the guidelines, Defendant could only receive two additional points for the 31 unscored misdemeanors and one additional point for the unscored felony conviction. Based on these three additional points, the Court departed upward one criminal history category, which resulted in a final criminal history category of IV. With an offense level 4, the revised criminal history category resulted in a guideline range of 2-8 months' imprisonment. The Court then sentenced Defendant on the first count of DUI to 7 months' imprisonment (one month higher than the original guideline range) consecutive to any outstanding state sentence pursuant to Setser v. United ...