United States v. Flores (223 F. Supp. 2d 1016, 2002)

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S SENTENCE

BENNETT, Chief Judge.

TABLE OF CONTENTS

/. INTRODUCTION.1017

A. Procedural Background.1017

B. Factual Background.1018

II. DISCUSSION. o h- CO

A. Horizontal Departure: Adequacy

1. Is history category an seriousness of Flores’s past criminal conduct?. .

. Flores has agreed that, after his sentencing for this federal drug offense, he will plead guilty to a charge of Terrorism for shooting Steve Huerta. Until the statute was amended this year, terrorism was a Class C felony and carried a ten year maximum term of imprisonment. Now, terrorism in Iowa is a Class B felony and carries a maximum term of imprisonment of 50 years. Iowa Code § 708.6, Iowa LegisS.F. 2146 (2002).

. At Flores's initial sentencing hearing on May 9, 2002, in which the court gave notice of its intention to depart, the court stated that it was considering a substantial departure— possibly up to a life sentence.

. In the interests of clarity, the court notes it has taken into consideration only the following uncounted offenses in departing upward to a criminal history category VI in its analysis under the first subpart of Guideline 4A1.3: Attempted Murder (5/1/01), Serious Assault (7/29/00), Making Homemade Explosives (8/20/96), and Serious Assault (10/3/94). Consideration of these offenses is appropriate because they are serious crimes, and, while each did not result in a conviction, or even a formal charge, the PSIR contains admitted facts, which are properly considered by the court. See Joshua, 40 F.3d at 953 (stating that district court could consider incidents in the defendant's criminal history where the PSIR contains admitted facts but holding that mere allegations of criminal conduct could not form the basis of a departure under section 4A1.3) However, in Part IIA.2, infra, of this opinion, which addresses a departure based on the likelihood that Flores will recidi-vate, the court has taken into consideration all of Flores's past criminal conduct because “[e]ven offenses which are minor and dissimilar to the offense of conviction may be considered as evidence of a risk of recidivism if they evince a defendant’s 'obvious incorrigibility.' " United States v. Levi, 229 F.3d 677, 679 (8th Cir.2000) (quoting United States v. Herr, 202 F.3d 1014, 1016 (8th Cir.2000)).

. Even absent any consideration of a departure pursuant to Guideline 5K2.0, the court would depart vertically because it finds that the 137 month term of imprisonment provided for by a total adjusted offense level of 25 and criminal history category VI is inadequate to reflect the danger Flores represents to the community, his likelihood of recidivism, and the underrepresentation of his criminal history. Thus, pursuant to Guideline 4A1.3 and the Eighth Circuit’s holding in Day, the court would reach the same conclusion that Flores should be imprisoned for 188-235 months. See Day, 998 F.2d at 625 ("To impose an upward departure under § 4A1.3, the sentencing court first must proceed along the criminal histoiy axis of the sentencing matrix, comparing the defendant's criminal history with the criminal histories of other offenders in each higher category. If the court reaches the highest criminal history category, Category VI, and concludes that the Guidelines range is still inadequate, it may impose a reasonable sentence above the Category VI range.”) (citing Lara-Banda, 972 F.2d at 959-60; United States v. Anderson, 886 F.2d 215, 216 (8th Cir.1989)).

. While the defendant argued at sentencing that there is no relationship between the attempted murder in April of 2001 and the instant drug offense, this court disagrees. The Eighth Circuit has repeatedly recognized that "[flirearms are the tools of the drug trade providing protection and intimidation.” United States v. Linson, 276 F.3d 1017, 1019 (8th Cir.2002) (citing United Stat