for the first bank robbery. It also suggests that Anderson has not taken full responsibility for overcoming the crack addiction that is causing him to rob banks and probably destroying his life in many other ways. On balance, the court finds that Anderson's drug use, bank robbery, attempted bank robbery, and consequent failure to abide by the terms of his release outweigh his guilty pleas and cooperation with authorities. Therefore, the court concludes that Anderson is not entitled to a two-level reduction for acceptance of responsibility.
II. REDUCTION FOR ATTEMPT
Anderson argues that his offense level for the second count of the indictment in case number 96 cr 574 (attempted robbery of the bank in Peoria) should be reduced by three levels under Section 2X1.1(b)(1) of the Sentencing Guidelines, which permits a three-level reduction for attempts. The court finds that Anderson is not entitled to this reduction because he completed all the acts necessary for attempted bank robbery, and because his offense is specifically covered by another provision of the Sentencing Guidelines. See United States v. Toles, 867 F.2d 222, (5th Cir. 1989). Even if the court were to grant the requested three-level reduction, it would have no effect on Anderson's combined adjusted offense level.
III. CRIMINAL HISTORY CATEGORY
Anderson seeks a downward departure from category III to category II, arguing that his criminal history score over-represents the seriousness of his prior convictions for drunk driving and domestic battery. The court agrees.
Under Section 4A1.3 of the Sentencing Guidelines, the court may depart downward if it "concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit future crimes." See generally United States v. Abbott, 30 F.3d 71, 72-73 (7th Cir. 1994).
In this case, Anderson's prior convictions for driving under the influence and domestic battery result in a criminal history score of two. Because Anderson was on conditional discharge when he committed the instant bank robberies, two more points are added pursuant to U.S.S.G. § 4A1.1(d). That results in a total criminal history score of four, which puts Anderson in the lower end of Criminal History Category III, which encompasses criminal history scores ranging from four to six.
The court finds that placing Anderson in Criminal History Category III significantly over-represents the seriousness of his DUI and domestic battery convictions. Although both DUI and domestic battery are serious offenses, they are not as serious as many of the crimes that place other defendants in Category III. While driving under the influence cannot be condoned, Anderson's DUI conviction did not involve any injury to people or damage to property. And while the seriousness of Anderson's domestic violence conviction cannot be minimized, it is significant that his wife was not hospitalized and apparently did not sustain permanent injury. Taking all of the relevant factors into consideration, and comparing Anderson's criminal history to that of other defendants who have been sentenced by this court over the years, the court concludes that Criminal History Category III significantly over-represents the seriousness of Anderson's criminal history. He belongs in Criminal History Category II, not Category III. See Abbott, 30 F.3d at 72-73 (district court may depart downward where criminal history category overrepresents defendant's criminal history; United States v. Baker, 804 F. Supp. 19, 22 (N.D. Cal. 1992) (reducing criminal history category from III to I for defendant with prior convictions for giving false information and grand theft auto, and two additional points for committing offense of conviction while on probation.)
Defendant Kevin Anderson's request for a two-level reduction for acceptance of responsibility and his request for a three-level reduction for attempt are denied. His motion for a downward departure in his Criminal History Category is granted. His Criminal History Category is II and his combined adjusted offense level is 28, producing a guideline range of 87 to 108 months imprisonment.
Ann Claire Williams, Judge
United States District Court
Dated: January 27, 1997
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