The opinion of the court was delivered by: Herndon, Chief Judge
Pursuant to the Government's oral motion for downward departure made during the sentencing hearing of April 17, 2009, the Court issues this Order setting forth Dion Halaska's sentence and rationale for that sentence.
The sentencing landscape has changed considerably since the landmark case of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 621 (2005). Gone are the days when the sentencing court merely applies the sentencing guideline to a case, explaining to the defendant that his hands are, for all practical purposes, tied. That, within some range, his sentence is predetermined once the variables of his offense conduct, acceptance of responsibility and criminal history are plugged into the formula.It is further clear now that the Supreme Court has given us Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)and Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) that the proper procedure, as a starting point and initial benchmark, is for the sentencing court to correctly calculate the sentencing range as determined by the Guidelines. Each party is to be given an opportunity to argue for whatever sentence he or she deems appropriate in the case. Thereafter, the district judge is to consider all of the section 3553(a) factors, without giving a presumption of reasonableness to the Guidelines. An individualized assessment of the factors as weighed against the facts in the case must be made. According to the nation's highest court: "If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one." Gall, 552 U.S. at 597.
CRIMES OF CONVICTION STATUTORY MAXIMUM GUIDELINE RANGE
Halaska pled guilty to Count 1 of conspiracy to manufacture, possess with intent to distribute , and distribute methamphetamine which is a Class A Felony that has a statutory range of ten (10) years to life, a maximum fine of $4,000,000 and a special assessment of $100. Based on Halaska's total offense level of 35 and a criminal history category of III, the guideline range on Count 1 is 210 to 262 months in prison and a fine range of $20,000 to $4,000,000, and a special assessment of $100. These findings were without dispute.
18 U.S.C. § 3553(a) FACTORS
In sentencing Halaska, the Court considers the following relevant factors outlined in 18 U.S.C. § 3553(a): (1) the nature and circumstances of the offenses; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (4) the need to afford adequate deterrence to criminal conduct; (5) the need to protect the public from further crimes of the defendant; (6) the need to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner; (7) the need to consider restitution; (8) the need to consider the kinds of sentences available, as well as the sentencing range established for the applicable category of offenses committed by the applicable category of defendant set forth in the sentencing guidelines, in effect, including amendments yet to be implemented as called for by Congress; (9) consider any policy statements the Sentencing Commission has in place or about to be in place; and (10) the need to avoid unwarranted sentencing disparities among defendants everywhere with similar records who have been found guilty of similar conduct.
The Court determines that the Defendant should serve 159 months in prison for his crime. This sentence represents a variance from the guideline sentence relative to Count 1and constitutes a non-guideline sentence. The Court bases its sentence in part on the Government's motion for a variance from the guidelines in this case. Based on Defendant's exemplary post offense conduct and apparent rehabilitation even prior to the indictment in this case, the Court agrees with the Government's motion. Although Defendant argued for the statutory minimum sentence, Defendant's post offense conduct demonstrating rehabilitation does not justify as great as variance as Defendant would argue due to the seriousness of the offense and the need for just punishment. There is no condoning a methamphetamine operation whether the operation is used to pass methamphetamine between participants or place it in a stream of commerce. Methamphetamine is a highly addictive drug as Defendant himself conceded. Defendant's sentence is also proportional with Defendant's brother, who is the co-defendant that is closest to Defendant in terms of a similarly situated defendant within the enterprise at bar. Defendant's brother received 135 month sentence based on a first offender provision for which Defendant is not eligible. Defendant's sentence is proportional to his brother's sentence and reflects the seriousness of the offense, promotes respect for the law, and provides just punishment for the offense. Because methamphetamine has such detrimental effect on the community, the punishment factor is an especially important factor is this case. The Court believes that while a factor to be considered and the sentence imposed certainly addresses it, the protection of the public is less a concern with this Defendant due to his successful rehabilitative efforts pre-indictment. Likewise, the deterrent factor, one of lesser significance in this case as to the Defendant is addressed by the sentence in signaling would be offenders that federal sentences are serious nonetheless as it is well above the mandatory minimum, as those "wanna-be's" look at a defendant who has a criminal background and chooses to involve himself in a large scale meth operation.
Restitution in this case is in the amount of $6,913.37, a joint and several liability, with the Defendant's co-Defendants Anton J. Halaska, IV, Clarence Charles E. McCay, Jr., Marshal D. Rosenberger, and any other co-defendants ultimately convicted in this case. Payments are due immediately, through the Clerk of the Court. Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties shall be paid in equal monthly installments of $130 or ten percent of his net monthly income, whichever is greater, over a period of 54 months, to commence 30 days after release from imprisonment to a term of supervision. The record reflect that restitution is to the Drug Enforcement Administration for the cleanup associated with the manufacture of amphetamine or methamphetamine by the Defendant.
Upon release from imprisonment, the Defendant shall be placed on supervised release for a term of five years. Within 72 hours of release from custody of the Bureau of Prisons, the Defendant shall report in person to the United States ...