The opinion of the court was delivered by: Stiehl, District Judge
This matter is before the Court on limited remand from the United States Court of Appeals for the Seventh Circuit pursuant to United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005) to determine whether this Court would impose defendant's original sentence had the Sentencing Guidelines been merely advisory, see, United States v. Gordon, No. 04-2186 (7th Cir. 2006). In accordance with Paladino, this Court ordered the parties to submit their respective positions on the question whether, in light of the decision of the Supreme Court in United States v. Booker, 125 S.Ct. 783 (2005), the defendant's sentence was proper. The court in Paladino advised: "Upon reaching its decision (with or without a hearing) whether to resentence, the District Court should either place on the record a decision not to resentence with an appropriate explanation" or advise the Seventh Circuit of the Court's desire to resentence the defendant. Id.
The Court has considered the entire record, including the briefs filed by counsel; the statutory factors of 18 U.S.C. § 3553(a); the Presentence Investigation Report; the now advisory sentencing guidelines; and the reasons for the original sentence imposed in this case. Upon review of the record, the Court finds that a hearing is not necessary in this case and advises the Court of Appeals that it would impose the same sentence had the guidelines been merely advisory.
FACTUAL BACKGROUND AND COURT'S FINDINGS AT SENTENCING
The defendant, Mario L. Gordon, a/k/a "Rio," was charged by the grand jury in a Third Superseding Indictment with cocaine base related offenses. Specifically, Count 1, charged that from on or about December 2001 to on or about February 5, 2002, the defendant, Mario L. Gordon, a/k/a "Rio," and Daniel W. Ross a/k/a "Chino," conspired together and with others known and unknown to the grand jury to knowingly and intentionally distribute and possess with intent to distribute 5 grams or more of a mixture and substance containing cocaine base, "crack cocaine," a Schedule II Narcotic Controlled Substance, all in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii), and all in violation of 21 U.S.C. § 846.
Count 2 charged that on or about January 29, 2002, the defendant, Mario L. Gordon, a/k/a "Rio," knowingly and intentionally possessed with intent to distribute a mixture and substance containing cocaine base, "crack cocaine," a Schedule II Narcotic Controlled Substance, all in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). The defendant was found guilty on January 15, 2004, on both counts after a three day jury trial. The jury returned a special verdict finding that the amount of crack cocaine proved by the government exceeded five grams.
At the disposition, the Court found, by a preponderance of the evidence, that the defendant was responsible for more than 500 grams of crack cocaine, but less than 1.5 kilograms. The Court further found from reliable testimony that the defendant, together with Kenneth Johns and co-defendant Ross, made multiple trips to Chicago to obtain and bring back crack cocaine to the Carbondale, Illinois area at the rate of every three to four days, carrying an amount of approximately four ounces during each trip. The Court noted that at the time of the defendant's arrest he had approximately 5.5 grams of crack cocaine in his car (Disposition Transcript at 21); that based upon the credible testimony of Mark Walker, a Carbondale Police officer who interviewed the defendant, that the defendant stated that he and co-defendant Ross, made several trips to and from Chicago on December 15, 19 and 25th, carrying with them during at least two of those trips, amounts totaling over 70 grams (Id.); that Ross brought 113.4 grams down to Carbondale (Id.); that the defendant had made two purchases from a new source, identified as "Chris," for a total of 42.5 grams (Id.); that the defendant admitted that the cocaine found in Brenda Ross' apartment was his, amounting to 80 rocks for a total of 20 grams (Id. at 21-22); and, that in January, Ross, when he was arrested, was found to be transporting 111.5 grams, all amounting to over 1,000 grams of crack cocaine (Id. at 22-23).
The Court enhanced the offense level by 2 points for possession of a gun,*fn1 based on the evidence at trial that the defendant possessed a gun during his drug transactions; that he admitted to his cell-mate that he had a gun because he thought he would be robbed;*fn2 and the credible testimony of government witness Brenda Greer that the defendant had a handgun.
In addition, the Court found that the defendant was a career offender based upon his convictions for two robberies. The Court overruled defendant's objections to the career offender status and found that the two robberies, although they occurred on the same day, involved different people at different times and were separate incidents, not the same, single crime.
The defendant presented argument on the defendant's background and emotional stability, which the Court considered in mitigation. This included, evidence that the defendant had issues with his emotional stability, in part, based on the fact that the defendant was raised by his mother, without a father-figure present. That the defendant's mother had a history of substance abuse. That his maternal grandmother and step-grandfather were involved in drug distribution. That the defendant has a history of health problems, primarily related to asthma symptoms, and that the defendant has previously attempted suicide.
The aggravating factors considered by the Court were the large amounts of drugs involved in this conspiracy and the fact that the defendant's criminal history made him a career offender.
Based on these findings, the Court sentenced the defendant to a term at the low end of the guideline range under the sentencing guidelines, which the Court found to be sufficient to punish the defendant for the crime he committed as well as to act as a deterrent to others. The sentence imposed was 360 months on Count 1, and a term of 240 months on Count 2, said terms to run concurrently; a term of supervised release of five years on Count 1 and a term of 3 years on Count 2, terms to run concurrently; special assessments of $100 on each of Counts 1 and 2 and, in addition, the Court departed downward on the minimum fine range and imposed a fine of $500 on the defendant.
1. Government's Motion ...