The opinion of the court was delivered by: Herndon, Chief Judge
This case was presented for re-sentencing following a Seventh Circuit opinion vacating the previous sentence and remanding it for proceedings consistent with the opinion. See, United States of America v. William S. Kirkpatrick, No. 09-2382, 7th Circuit, Dec. 14, 2009. The prior disposition was handled by District Judge Michael J. Reagan, who recused upon remand and the case was randomly reassigned to this judge.
A hearing was conducted on March 18, 2010, with Assistant United States Attorney Angela Scott, defense counsel Renee Schooley and the defendant present. As in the prior hearing, no objections were raised by the parties to the presentence report, however, the court raised an objection to two findings, based on the record, Judge Reagan's prior findings and the opinion of the Circuit court. The court referred to the transcript wherein, Judge Reagan found that the defendant had materially lied to him in a letter regarding his authority, granted by his DEA handler, to possess and transport the firearms in issue to Illinois for the purpose of gifting them to another person. Judge Reagan found that the fabrication qualified the defendant for an obstruction of justice enhancement under §3C1.1 of the Guidelines. This was an enhancement that received the approval of the appellate court. Judge Reagan declined to withdraw the defendant's acceptance of responsibility under §3E1.1, although he clearly had to discretion to do so, if he found it was appropriate.
The sentencing landscape has changed considerably since the landmark case of United States v. Booker, 543 U.S. 220 (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.With the addition of both Rita v. United States, 551 U.S. 338 (2007) and Gall v. United States, 552 U.S. 38 (2007), the Supreme Court foundthat 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.
When looking to depart from the applicable Sentencing Guidelines, the Court considers the following relevant factors outlined in 18 U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed--(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines--
(I) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing ...