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United States v. Warren

United States District Court, N.D. Ohio, Eastern Division

January 6, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVIAN WARREN, Defendant.

          SENTENCING MEMORANDUM

          JOHN R. ADAMS JUDGE UNITED STATES DISTRICT COURT.

         I. Introduction

         On December 16, 2019, this Court conducted a sentencing hearing for Defendant Davian Warren (“Warren”). During the hearing, this Court imposed a sentence of 96 months incarceration. This memorandum serves to supplement this Court's rulings during the sentencing hearing.

         II. Sentencing Process

         Often, criminal sentencing is described as a three-step process. The first step is calculating the advisory sentence guideline range suggested by the United States Sentencing Commission. See Rita v. United States, 551 U.S. 338, 351 (2007) (“The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines.”). In so doing, a court must determine the offense level for the crimes for which the defendant has been convicted and determine the defendant's criminal history category. See United States v. Boyd, No. 3:07-CR-3, 2008 U.S. Dist. LEXIS 94565, at *43-48 (E.D. Tenn. Nov. 18, 2008).

         Second, the court must determine whether a variance or departure from the advisory sentence guideline range would be appropriate. See United States v. Collington, 461 F.3d 805, 807-09 (6th Cir. 2006).

         For the third and final step,

a sentencing court must independently evaluate each of the factors in 18 U.S.C. § 3553(a), which details the considerations that a district court must weigh before sentencing a criminal defendant. Although the Guidelines form a starting point in the district court's analysis under 18 U.S.C. 3553(a), a district court may not presume that the sentence suggested by the Guidelines is appropriate for an individual criminal defendant. . . . A district court may “hear arguments by prosecution or defense that the Guidelines sentence should not apply.” In this way, a “sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure.” Ultimately, however, a court must exercise its independent judgment in sentencing a defendant.

United States v. Stern, 590 F.Supp.2d 945, 949 (N.D. Ohio 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007) and citing United States v. Ross, 501 F.3d 851, 853 (7th Cir. 2007)).

         III. Analysis

         1. Advisory Sentence Guideline Computation

         To begin the advisory sentencing guideline computation, this Court determines the offense level for the crimes for which the defendant is presently convicted. On October 2, 2017, Warren pled guilty to Count 1 of the Indictment against him, more specifically, the charge of Felon in Possession of Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). (See Min. of Proceedings, Oct. 2, 2017; PSR ¶ 1, ECF No. 38.) The Indictment charged:

On or about February 15, 2017, in the Northern District of Ohio, Eastern Division, Davian Warren, having been previously convicted of crimes punishable by imprisonment for a term exceeding one year, those being, Improper Discharge into Habitation with Firearm Specification and Having Weapons Under Disability, in Case Number CR-14-590885-A, in the Cuyahoga County Common Pleas Court, on or about January 23, 2015, and Attempted Felonious Assault with Firearm Specification, in Case Number CR-12-566336-A, in the Cuyahoga County Common Pleas Court, on or about February 14, 2013, did knowingly possess in and affecting interstate commerce firearms, to wit: a Charter Arms Model Pit Bull, .40 caliber revolver, serial number 12-06764, a Sarsilmaz, Model CM9, 9mm pistol, serial number T1102-16BD00379, and ammunition, in violation of Title 18, Section 922(g)(1), United States Code.

(Indictment 1, ECF No. 1. See also PSR ¶ 2, ECF No. 38.) Pursuant to § 2K2.1(a)(4) of the sentencing guidelines, which is the appropriate and applicable section of the sentencing guidelines as Warren committed the instant offense subsequent to sustaining one felony conviction of a crime of violence - Case Number CR-12-566336-A: Attempted Felonious Assault with a Firearm Specification - the base offense level for Warren's crime is 20. (See PSR ¶¶ 4, 16, ECF No. 38.) This Court granted a three-level reduction pursuant to § 3E1.1 of the sentencing guidelines for acceptance of responsibility, making Warren's offense level 17. (See Id. at ¶¶ 6, 14, 23, 24.)

         With respect to Warren's criminal history category, this Court found Warren's criminal history category to be VI. (See Id. at ¶¶ 39-41.) The criminal history pertinent to this calculation is as follows:

         (1) Case No.: CR-09-520176 - Carrying Concealed Weapons on December 17, 2008 in the Cuyahoga County Court of Common Pleas, sentenced to six months custody. Two points were tallied for this conviction pursuant to § 4A1.1(b) of the sentencing guidelines because this sentence of imprisonment was at least sixty days, but not more than one year and one month. (Id. at ¶ 28.)

         (2) Case No.: CR-09-521055-A - Failure to Comply to Order/Signal of Police Officer on January 31, 2009, in the Cuyahoga County Court of Common Pleas, sentenced to six months custody. Two points were tallied for this conviction pursuant to § 4A1.1(b) of the sentencing guidelines because this sentence of imprisonment was at least sixty days, but not more than one year and one month. (Id. at ¶ 29.)

         (3) Case No.: CR-10-536470-A - Attempted Trafficking Offenses on April 11, 2010, in the Cuyahoga County Court of Common Pleas, sentenced to one hundred twenty days custody, which was suspended. One point was tallied for this conviction pursuant to § 4A1.1(c) of the sentencing guidelines because this sentence of imprisonment was less than sixty days. (Id. at ¶ 30.)

         (4) Case No.: 10 CRB 01586 - Possession of Drugs on September 24, 2010, in the Bedford Municipal Court, sentenced to ninety days custody. Two points were tallied for this conviction pursuant to § 4A1.1(b) of the sentencing guidelines because this sentence of imprisonment was at least sixty days, but not more than one year and one month. (Id. at ¶ 32.)

         (5) Case No.: CR-10-544741-A - Safecracking and Breaking & Entering on November 30, 2010, in the Cuyahoga County Court of Common Pleas, sentenced to ten months custody for Safecracking, and eight months custody for Breaking & Entering to run concurrently. Two points were tallied for this conviction pursuant to § 4A1.1(b) of the sentencing guidelines because this sentence of ...


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