to reflect apprehension on the part of the U.S. government of the danger he poses to the country generally, it significantly overrepresents it. The result for him is a sentence disproportionately severe in comparison to that imposed upon even other federal defendants who did exactly as he did, but who will, however (for similar, but in their cases, felicitous accidents of chronology), return to the community far sooner. The sentence is also, the Court is informed, still more greatly disproportionate to the length of any prison term he would have served, prior convictions notwithstanding, had he been charged and convicted for the same offenses in a District of Columbia court under local law.
Title 18 U.S.C. § 3553(b) enables the Court, it has been said, to depart from a Guidelines sentence if it finds, inter alia, a mitigating circumstance "of a kind or to a degree not adequately taken into consideration by the Sentencing Commission" in formulating the Guidelines. The Court is unaware of any consideration at all having been given by the Sentencing Commission to the unique status of the District of Columbia, in which the United States Attorney for the District of Columbia is also the local prosecutor and, as such, able to exercise far greater control than his counterparts elsewhere over the prison time a defendant will actually serve by electing to prosecute the same criminal conduct in either a local or federal court.
The Court regards that enhanced power of the District of Columbia prosecutor to make unreviewable charging decisions that may so profoundly affect sentencing to be a "mitigating circumstance" within the contemplation of 18 U.S.C. § 3553(b). Therefore, unless and until Congress and the Sentencing Commission make it expressly clear that it is truly the penal policy of the United States to cause the incarceration of petty local offenders, particularly in the District of Columbia, until they are too old and infirm to transgress again, no matter how commonplace their "career criminal" records may be, it should be open to a federal court in the District of Columbia to sentence comparably for comparable crimes having neither a federal connection nor any extraterritorial importance.
It has also been intimated, by the Beckham and Lopez cases, supra, that, in this Circuit, and at least at present, the Guidelines afford some latitude under U.S.S.G. §§ 4A1.3 and 5K2.0 to permit a sentencing court to depart downward for some defendants whose criminal records exaggerate their menace, or those whose "special circumstances" of life may claim compassion, from the unusually hard results of Guidelines-impelled sentences. Availing itself, therefore, of any and all discretion as may be accorded by those authorities, the Court will depart downward in the instant case by disregarding the "career criminal" designation for the defendant Clark. The Court will deem Clark's offense level to be 28, in accordance with the Presentence Report computation, and his criminal history category to be level V. His Guidelines sentence range is, thus, 130-162 months. But, since career offenders are expected to receive sentences "at or near" the maximum, the Court will impose the upper Guidelines limit of 162 months' confinement, as well as those other sanctions customary in such cases.
It is, therefore, this 23rd day of June, 1992,
ORDERED, that defendant's motion for a downward departure from the Guidelines sentence as computed in the Presentence Report is granted as aforesaid; and it is
FURTHER ORDERED, that the defendant Frank Dave Clark is committed to the custody of the United States Bureau of Prisons for a term of 162 months on Count One, and a term of 120 months on Count Three, of the Superseding Indictment filed February 11, 1992, the terms to run concurrently with one another, and to concurrent terms of supervised release of eight and three years on Counts One and Three, respectively, upon terms and conditions separately specified.
Thomas Penfield Jackson
U.S. District Judge