the official victim enhancement does not apply and the adjusted offense level is nine for each of Counts Two, Three, Four and Five. Again, however, this finding does not impact the total offense level used for purposes of determining the guideline range.
III. UPWARD DEPARTURE FROM THE SENTENCING GUIDELINE RANGE
As a preliminary matter, the Court observes that the statutory maximum penalty on Count One for attempting to kill the President in violation of 18 U.S.C. § 1751 is life imprisonment. In this case, the appropriate adjusted offense level for the Defendant's conviction on Count One is 31 in light of the Court's findings regarding the application of U.S.S.G. §§ 2A2.1(a) and 3A1.2(a). See PSR at P 4. As it is undisputed that the Defendant's criminal history category is III, see PSR at P 76, the sentencing guideline range for Counts One through Eight, and Ten
is 135 to 168 months imprisonment. PSR at P 116. In addition to any sentence imposed on these counts, a ten-year consecutive term of imprisonment must be imposed on Count Nine, pursuant to 18 U.S.C. § 924(c). See PSR at P 114.
As set forth below, however, the Court finds that a nine-level upward departure is warranted in this case, bringing the offense level up to 40 and placing the Defendant within the sentencing range of 360 months to life. The Court further finds that an appropriate sentence for this Defendant on Counts One through Eight, and Ten is 360 months imprisonment. With the mandatory ten-year consecutive term on Count Nine imposed, the Defendant shall be imprisoned for a total term of 480 months.
In reaching this conclusion, the Court observes that 18 U.S.C. § 3553(b) allows courts to impose a sentence outside the range set forth in the United States Sentencing Guidelines if the Court "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). See also U.S.S.G. § 5K2.0; United States v. Fadayini, 307 U.S. App. D.C. 369, 28 F.3d 1236, 1241-42 (D.C. Cir. 1994); United States v. Clark, 303 U.S. App. D.C. 435, 8 F.3d 839, 842 (D.C. Cir. 1993). Section 3553(b) goes on to direct that "in determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." 18 U.S.C. § 3553(b).
The Court finds that this case squarely fits within the standards set forth in § 3553(b). Indeed, the very same guidelines which dictate the initial sentencing range applicable to the Defendant's case expressly recognize that an upward departure is warranted under circumstances such as those presented here. In particular, U.S.S.G. § 3A1.2, Application Note 2 and § 2A2.1, Application Note 3 support the Court's decision to depart upward from the guideline range applicable in this case.
In his "Memorandum in Aid of Sentencing and Opposition to prosecution's Motion for Upward Departure," defense counsel aptly writes that "in imposing a sentence on Mr. Duran, the Court must consider the serious offenses of which he was convicted." Defendant Duran's Memorandum in Aid of Sentencing and Opposition to Prosecution's Motion for Upward Departure, at 5. This is exactly what the Court has done in reaching its conclusion that a nine-level departure is necessary.
1) An Upward Departure is Appropriate Pursuant to U.S.S.G. § 3A1.2, Application Note 2, Because the Victim of the Attempted Murder Was the President of the United States
As explained above, U.S.S.G. § 3A1.2(a) provides for a three-level increase in the offense level if, as here, the victim of the offense was a government officer or employee, and the offense of conviction was motivated by such status. The PSR adjusted offense level of 31 properly reflects this three-level increase. See PSR at P 34. The Court finds, however, that an upward departure in addition to the three-level increase is appropriate in this case. In particular, U.S.S.G. § 3A1.2, Application Note 2, provides that:
Certain high level officials, e.g., the President and Vice President, although covered by this section, do not represent the heartland of the conduct covered. An upward departure to reflect the potential disruption of the governmental function in such cases typically would be warranted.
(Emphasis added). Thus, the official commentary to U.S.S.G. § 3A1.2 makes clear that the President's involvement in the Defendant's crime constitutes a mitigating circumstance of a kind not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. Accordingly, the Court finds that an upward departure of five offense levels is warranted. See United States v. McAninch, 994 F.2d 1380, 1385 n.6 (9th Cir.), cert. denied, 126 L. Ed. 2d 342, 114 S. Ct. 394 (1993) ("Under the guidelines currently in effect, if the President is a victim, the sentencing court must add three points to the offense level, and may depart upward beyond that.").
The most recently reported decision regarding a crime against the President of the United States upheld a three-level enhancement plus a three-level upward departure in sentencing. U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994). The defendant in Hines was sentenced under the 1991 United States Sentencing Guidelines, which state that "the court should make an upward departure of at least three levels in those unusual cases in which [the President is a] victim." Id. at 1476 (citing U.S.S.G. § 3A1.2(a), comment, (n.2) (1991)). Hines had stolen a revolver and travelled to Washington, D.C. to kill President Bush in order to become famous. Id. at 1472. Although Hines sent a letter indicating his intent to kill the President and later pled guilty to making threats against the President and possessing a firearm as a convicted felon, he did not shoot at anyone. Id. at 1473. In light of the three-level departure imposed for Hines' activity, the Court finds a five-level departure is clearly warranted to account for the seriousness of Duran's behavior.
The Defendant's methodical planning of the attempt on President Clinton's life evidenced by the testimonial and documentary evidence presented at trial was, in a word, chilling. Both David Millis and Stacy Stallwood testified that, while in Colorado, the Defendant spoke of his desire to kill the President, and this desire was confirmed by the virtual trail of written materials left by the Defendant which threatened the life of the President and other government officials.
See Testimony of David Millis, Tr. at 14, 17 (March 21, 1995); Testimony of Stacy Stallwood, Tr. at 193, 195 (March 20, 1995). Having falsely indicated on Alcohol, Tobacco and Firearms Form 4473 that he had not been convicted of a felony or dishonorably discharged from the military, and using a credit card he cleared in advance of his trip, the Defendant bought a Norinco SKS semiautomatic assault rifle, multiple round clips, a Mossberg .410 gauge shotgun, multiple rounds of ammunition, a trench coat to conceal the assault weapon, and a folding stock and pistol grip for the firearm so it could be hidden under the coat. Armed accordingly, the Defendant headed to the President's house in Washington, D.C. and waited outside for hours. Seconds after schoolchildren mistook a man on the White House lawn for President Clinton, the Defendant opened fire in the man's direction. The evidence showed that the Defendant's intent and object, in addition to killing the President, was to start a revolution that would result in anarchy. See Govt's Exh. 190, 209, and 210.
On this subject, the Court observes that the statement of Mr. Ronald Noble, Undersecretary for Enforcement in the Department of Treasury, which was provided to the U.S. Probation Office in response to a letter directed to President Clinton, bears repeating:
The commission of [Attempted Murder of the President of the United States] threatens the heart of our democracy -- the institution of the Presidency. Moreover, in a society that has become increasingly violent, the location of the offense at the White House -- "the People's House" -- was especially disturbing. This incident was the first shooting directed at the White House in over 150 years. The White House is a symbol of our very nation and the American people. Indeed, the Department of the Treasury has received numerous messages from citizens across the country expressing their outrage at this offense and their concern for the safety of the President and the First Family, and for the security of the White House. Thus, Duran's actions were an assault on all people of this nation, as well as an assault on the President of the United States. Consequently, I believe that his punishment should be severe.
PSR at P 24.
The Defendant's conviction of attempted murder of the President is precisely the kind of circumstance which the Sentencing Commission envisioned would warrant a departure under 18 U.S.C. § 3553(b) and, with remarkable specificity, under U.S.S.G. § 3A1.2 Application Note 2. In convicting the Defendant on Count One, the jury found that the Defendant had the specific intent to kill President Clinton, and the evidence showed that the Defendant believed that he had the President in view when he began shooting. See Testimony of Robert DeCamp, Tr. at 170-71 (March 22, 1995 (Defendant started firing "almost immediately" after DeCamp said Mr. Basso looked like President Clinton); Testimony of Brent Owens, Tr. at 184-85 (March 22, 1995) (Defendant aimed and started firing "just a couple seconds" after DeCamp pointed at Mr. Basso and said he looked like President Clinton); Testimony of Norma Klein, Tr. at 197 (March 22, 1995) (Defendant shot at Mr. Basso and the others in his tour group); Testimony of Mark Sofia, Tr. at 192 (March 22, 1995) (heard a woman say, "That looks like Bill Clinton," or "There is Bill Clinton."); and Testimony of Dennis Basso, Tr. at 48 (March 23, 1995) (saw leaves falling above his head and poofs of dirt from the ground; thought he was being shot at). Clearly, attempted assassination of the President of the United States falls outside the heartland of cases covered by §§ 2A2.1(a) and 3A1.2(a).
The Court further observes that, if the Defendant had succeeded in murdering the President of the United States, a substantial disruption to the government function would have resulted. Indeed, as a consequence of his failed attempt on the President's life, the Defendant caused $ 3,200 in damage to the White House and the grounds and trees surrounding it. See Testimony of Gary J. Walters, Tr. at 191 (March 21, 1995: Considering the Defendant's evil motive, the planning that went into the crime, the severity of the crime of attempting to kill the President, and the disruption of government function that could have resulted, the Court finds that an upward departure of five levels is entirely appropriate.
2) An Upward Departure is Also Warranted Under U.S.S.G. § 2A2.1, Application Note 3, as the Defendant Created a Substantial Risk of Death or Serious Bodily Injury to More than One Person
The circumstances leading up to the Defendant's conviction on Count One of the Superseding Indictment also warrant an upward departure pursuant to U.S.S.G. § 2A2.1, Application Note 3. As set forth above, section 2A2.1 provides that attempted murder has a base offense level of 28 if, as here, the object of the offense would have constituted first degree murder. However, the official commentary to that section also states that:
If the offense creates a substantial risk of death or serious bodily injury to more than one person, an upward departure may be warranted.
U.S.S.G. § 2A2.1, Application Note 3. In view of this language, the Court finds that the risk to others created by the assassination attempt was a circumstance not adequately considered by the Sentencing Commission which should result in departure. See United States v. Carpenter, 914 F.2d 1131, 1134 (9th Cir. 1990) (observing that the guideline offense level under U.S.S.G. § 2A2.1 is "predicated upon the risk to a single victim" and "does not consider the risk of harm to multiple victims"). Accordingly, the Court shall depart upward four levels on this basis. See United States v. McGraw, 1992 WL 73171 (9th Cir. 1992) (upholding four-level upward departure for the restraint of multiple victims during bank robbery); United States v. Johnson, 931 F.2d 238 (3d Cir. 1991) (approval of three-level increase on ground that three victims were assaulted); United States v. Carpenter, 914 F.2d 1131 (9th Cir. 1990) (upholding three-level upward departure for risk of harm to three children and others where murder plot was foiled and no shots were fired); United States v. Cole, 817 F. Supp. 1406 (W.D. Mich. 1993) (imposing eight-level upward departure for endangering the safety of others by placing pipe bomb in van which exploded near store where employees were changing shifts); United States v. Huddleston, 929 F.2d 1030 (5th Cir. 1991) (upholding seven-level departure for reckless endangerment to community by improperly hauling explosives through residential areas); United States v. Doe, 18 F.3d 41 (1st Cir. 1994) (upholding two-level increase for endangering lives in high speed chase). Cf. U.S.S.G. § 2F1.1(b)(2) (mandating two-level enhancement if scheme to defraud multiple victims).
In this case, the Defendant discharged a Norinco SKS semi-automatic assault rifle twenty-nine times in the direction of the White House on October 29, 1994, directly placing at risk of death or serious bodily injury numerous persons. Particularly jeopardized were Dennis Basso, the man whom the Defendant mistook for President Clinton, as well as the three other individuals standing on the north grounds of the White House. Indeed, the evidence showed that a concentration of bullets discharged from the Defendant's weapon impacted the building and trees in the general area where the tour group was standing. See Govt's Exh. 61-64.
The Defendant's actions also placed United States Secret Service Uniformed Division Officers Tejeda, Persons, Coffey and Wilson in serious danger, and the Court finds that an upward departure is warranted to account for the Defendant's assault on these officers.
These men have dedicated their lives to protecting the safety of the President and the First Family. According to the PSR, the Defendant's actions left the families of at least two of the assaulted Secret Service Officers with increased stress and anxiety levels due to the crime, and one Officer requested to speak with a counselor from the Employment Assistance Program and was granted three days of administrative leave. PSR at PP 25-26.
Finally, and of particular concern to this Court, the Defendant's shooting spree placed at risk of death or serious bodily injury a large number of citizens, including many children, that were on the sidewalk adjacent to the White House when the Defendant began firing. See Govt's Exh. 146 and 147. Due to the unseasonably warm weather, the sidewalk in front of the White House was particularly crowded with tourists that day. The Court vividly recalls a scene from one of the videotapes admitted into evidence in which an adult, in close proximity to the Defendant, ran from the shooting with a young child in a stroller. Thereafter, when a courageous citizen named Harry Rakosky tackled the Defendant, the Defendant swung the SKS rifle around such that it jammed into Mr. Rakosky's abdomen. See Govt's Exh. 146A; Testimony of Harry Rakosky, Tr. at 215-16 (March 22, 1995). At the time Mr. Rakosky intervened, the Defendant was attempting to reload the rifle with an additional fully-loaded thirty round ammunition clip. See Govt's Exh. 146A, 148; Testimony of Harry Rakosky, Tr. at 214 (March 22, 1995).
Upon consideration of these facts and all the evidence in this case, the Court finds that the risk of death or serious bodily injury to Mr. Basso, the others in the tour group, and the four Secret Service Officers, along with monumental threat to the public posed by the Defendant's conduct, warrants a four-level upward departure under U.S.S.G.§ 2A2.1, Application Note 3.
3) The Court Finds that an Upward Departure of Nine Levels and the Imposition of Sentence at the Low End of the Resulting Guideline Range is Proper Under U.S.S.G. § 1B1.4
For the foregoing reasons, the Court finds that an upward departure of nine levels is warranted. The resulting offense level of 40 yields a sentencing range of 360 months to life. The Court further finds that a sentence at the lowest end of this range, 360 months, plus the mandatory ten-year sentence on Count Nine, is proper. In reaching this conclusion, the Court refers to U.S.S.G. § 1B1.4, which states:
In determining the sentence to be imposed within the guideline range, or whether departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661.
As a preliminary matter, the Court observes that this provision lends further support to the Court's decision to depart nine levels. As set forth in detail in the PSR, the Defendant's background includes a prior conviction for aggravated assault. PSR at P 71. The Defendant struck two pedestrians with an automobile, and the "woman sustained serious injuries where her skull was fractured in the right occipital region causing her to be hospitalized." Id. The Defendant's conduct in this case occurred less than one year after his release from prison on the previous assault conviction.
The Defendant also made false statements to the government by misrepresenting on Alcohol, Tobacco and Firearms Form 4473 that he had not been convicted of a felony or discharged from the military. See PSR at PP 6, 8, 9. By so doing, the Defendant illegally purchased a handgun, a semi-automatic assault rifle, a shotgun, and numerous rounds of ammunition, most of which he brought with him to Washington. See Govt's Exh. 12-64.
Based on the entire record herein, the Court further finds that the Defendant poses a severe danger to himself and others. The jury's rejection of his defense of insanity indicates that he manipulated his symptoms to feign insanity at trial. Moreover, the Defendant's writings exhibit an extraordinarily dangerous mental state involving homicidal and sexual fantasies. See Govt's Exh. 179 and 167. Under such circumstances, a longer term of incarceration than that provided by the guideline range is appropriate.
Finally, the Court reiterates that the evidence was replete with indications of the Defendant's extreme hatred of the government and ardent wish for revolution and anarchy. While in Colorado, the Defendant often listened to anti-government talk shows, including Rush Limbaugh, and told his co-workers of his desire to kill government officials. See Testimony of Lisa Taylor, Tr. at 57, 58, 62, 63 (March 21, 1995); Testimony of David Millis, Tr. at 14, 17 (March 21, 1995); Testimony of Stacy Stallwood, Tr. at 193, 195 (March 20, 1995). Thereafter, the Defendant planned and executed his assassination attempt in a deliberate and calculated way. This is not a man who can be trusted to keep from endangering others' lives in the future.
Notwithstanding all of these reasons for departing nine levels above the guideline range, however, the Court disagrees with the Government's position that a life sentence without parole is warranted. While the Government cites to United States v. Moore, 599 F.2d 310, 315 (9th Cir. 1979), cert. denied, 444 U.S. 1024, 62 L. Ed. 2d 658, 100 S. Ct. 687 (1980), to support its argument, Moore's life sentence for shooting President Ford was imposed prior to passage of the Comprehensive Crime Control Act of 1984, such that the defendant likely had the possibility of parole after ten years. See 18 U.S.C. 4205(a) (providing for possibility of parole after ten years of a life sentence), repealed by Comprehensive Crime Control Act of 1984, Pub L. No. 98-473, 98 Stat. 1987 (mandating that all sentences of imprisonment shall be for fixed terms, see 18 U.S.C. §§ 3581, 3582(a) (1982 ed., Supp. IV), and eliminating the possibility of release on parole prior to the end of a sentence, §§ 3621(a), 3624(a)). This also appears to have been the case with Lynette Alice Fromme who was sentenced to life imprisonment for pointing a gun at President Ford. See Government's Motion for Upward Departure From Sentencing Guideline Range, Exh. A.
Rather, the Court finds that a 360 month sentence with an additional 10 years for Count Nine does satisfy the purposes of sentencing set forth in 18 U.S.C. § 3553, i.e., 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;