domestic abuse obviously was brought to the attention of
defendant prior to trial, and thus Brady does not appear to be
applicable at all.
For all of these reasons, the court finds that the magistrate
judge did not abuse his discretion in excluding the above
evidence. United States v. Berry, 60 F.3d 288, 293 (7th Cir.
Defendant's argument that the evidence was insufficient to
support conviction on any of the counts is likewise without
merit. Although defense counsel skillfully has pointed out to
this court, as he did at trial, inconsistencies in the testimony
of various witnesses and other matters affecting witness
credibility, those were (and shall remain) matters left to the
jury. United States v. Reed, 875 F.2d 107, 111 (7th Cir.
1989). There was more than ample testimony to support the
finding of guilt on each of the counts. Indeed, Bothum's
testimony alone, if believed, was sufficient to support the
verdict. Added to the various inconsistencies in defendant's own
statements, this court concludes, as did the magistrate judge in
ruling on defendant's motion for a new trial, that the evidence
of guilt was more than sufficient to support conviction.*fn6
For the foregoing reasons, the court affirms the jury verdict
of guilty and the judgment of conviction entered thereon.
The sentence imposed by the magistrate judge poses a more
difficult problem. The Presentence Report ("PSR") prepared by
the probation office calculated defendant's offense level under
the United States Sentencing Guidelines at a total of 27,*fn7
and his criminal history level at I, resulting in a guideline
range of 70 to 87 months of incarceration and a fine range of
$1,250 to $125,000. Under U.S.S.G. § 5G1.2(d), when the
statutory maximum is less than the guideline sentencing
range,*fn8 and the defendant is convicted of multiple counts,
the court is required to impose a consecutive sentence for each
count to the extent necessary to produce a combined sentence
equal to the total amount of incarceration otherwise required by
the Guidelines. Thus, the government argues, as it did below,
that the magistrate judge in the instant case was required to
impose a one year sentence on each of the three counts of
conviction (the maximum allowed under the statute), to run
consecutively for a total of three years.
Instead, of sentencing defendant to three years of
incarceration, however, the magistrate judge granted defendant's
request to depart from the guideline offense level of 27 as
calculated by the probation officer. Initially the magistrate
judge departed 14 levels to a level 13, which would
ordinarily require a period of imprisonment of between 12 and 18
months. The magistrate judge then imposed concurrent one year
sentences on each count, six months of which were to be served
in a prison facility and six months of which were to be served
as work release at the Salvation Army. The magistrate judge
further declined to impose a fine even though a fine was
recommended in the PSR and there had been no finding that
defendant was unable to pay a fine. The magistrate judge did
order defendant to pay restitution in the amount of $3,880 to
Bothum, along with a $25 special assessment on each count,
After the initial sentencing hearing, the government moved to
correct the sentence under Fed.R.Crim.P. 35(c), pointing out
that under U.S.S.G. § 5C1.1, the court was not empowered to
impose a "split" sentence for an offense level of 13 and a
criminal history level of I, because such a sentencing guideline
level was in "Zone D" that required straight incarceration.
Apparently realizing his mistake, and wishing to impose a split
sentence in this case, the magistrate judge informed the parties
that his intention all along was to depart down to an offense
level of 12, which would bring the sentencing guideline level to
"Zone C," which would allow a split sentence.
Defendant asserts that the instant case should be remanded for
resentencing because "the magistrate judge believed that his
discretion to depart from the sentencing guidelines in
defendant's sentence was limited, and this was error as a matter
of law." Defendant is mistaken.
In explaining his reasons for departing downward, the
magistrate judge noted the discrepancy between the statutory
maximum of one-year of incarceration under 29 U.S.C. § 530 and
the contemplated guideline ranges for each of the three counts.
He stated that, "Each of the applicable Guidelines range exceeds
what is permitted under the applicable misdemeanor statute," and
. . . because of this unfair disparity . . . together
with the defendant's wife's precarious health
situation and her resultant inability to work
full-time, plus the fact that the defendant's
commission of the offense[s] [was] not in line with
the way he conducted himself . . . with regards to
his personal life and his family life, all these
factors dictated a downward departure.
The magistrate judge then elaborated on why he felt the
Sentencing Guidelines were unfair,*fn9 declaring: "Had I had
discretion I believe I should have had, this offense of Mr.
Gochis would have warranted three months [incarceration] and six
months confinement. No more is warranted because room had to be
left for the more egregious conduct." Finally, the magistrate
In this regard I felt — having been robbed of my
discretion, I feel exactly as did Chief Judge Joe
Billy McDade in [United States v. Zendeli,
180 F.3d 879 (7th Cir. 1999)]. Had I discretion, I would have
given the defendant between three to six months. I
regret not having been able to find additional
grounds for an even greater departure than I made.
Based on all of the above, it is clear that, rather than being
under the impression that he lacked authority to depart further
downward, as defendant asserts, the magistrate judge was merely
voicing his frustration at not being able to find grounds that
would support a further departure than that which he had already
made. Thus, the court denies defendant's asserted basis for a
This is not the end of the court's inquiry, however. As
explained above, the government has consistently argued that the
magistrate judge was required to impose the sentences on each of
the three counts to run consecutively, rather than concurrently
as he did. The government is correct, and the court must remand
for resentencing on this basis.*fn10 See U.S.S.G. §
5G1.2(d). The court further urges the magistrate judge at
resentencing to more clearly explain his consideration of the
"structure and theory of both relevant individual guidelines and
the Guidelines taken as a whole," to decide whether this case
presented sufficient facts to take the case out of the
"heartland," bearing in mind the sentencing commission's
"expectation that departures based on grounds not mentioned in
the Guidelines will be highly infrequent." See United States v.
Raimondi, 159 F.3d 1095, 1101, n. 16 (7th Cir. 1998).
For the reasons stated above, the jury verdict of guilty and
the judgment of conviction is affirmed, but the sentence imposed
by the magistrate judge is reversed and remanded for
resentencing consistent with this opinion.