of the pistol was "well-meaning" and that his employment record
Several factors compel a downward departure. First, unlike the
typical felon in possession case, the government's investigation
produced no evidence at trial that the defendant intended to use
the pistol unlawfully, or that his possession of the pistol was
in connection with any other unlawful behavior such as drug
possession, armed robbery or assault. A comparison of this case
to a dozen recent felon in possession cases reported in the D.C.
Circuit is illustrative. See, e.g., United States v.
Richardson, 167 F.3d 621 (D.C.Cir. 1999) and its companion case
of United States v. Cunningham, 145 F.3d 1385 (D.C.Cir. 1998)
(armed robbery, assaults); United States v. Gilliam,
167 F.3d 628 (D.C.Cir. 1999) (reversing for failure to introduce the prior
felony a 922(g) conviction linked to armed bank robbery, armed
carjacking, theft); United States v. Dickerson, 163 F.3d 639
(D.C.Cir. 1998) (drug possession); United States v. Dozier,
162 F.3d 120 (D.C.Cir. 1998) (drug possession); United States v.
Pugh, 158 F.3d 1308 (D.C.Cir. 1998) (drug possession); United
States v. Spinner, 152 F.3d 950 (D.C.Cir. 1998) (drug
possession); United States v. Bowie, 142 F.3d 1301 (D.C.Cir.
1998) (drug possession); United States v. Garces, 133 F.3d 70
(D.C.Cir. 1998) (murder); United States v. Kennedy, 133 F.3d 53
(D.C.Cir. 1998) (assault, robbery); United States v. Atkins,
116 F.3d 1566 (D.C.Cir. 1997) (assault, escape); United States
v. Moore, 104 F.3d 377 (D.C.Cir. 1997) (drug possession).
Second, the government did not prove or try to prove any
motive or reason for the defendant's possession of the pistol,
unlike the heartland felon in possession case. The jury's verdict
of guilty was not determinative of what if anything they believed
regarding why the defendant possessed the pistol. Despite what
appeared to me to be an effective cross-examination of the
defendant regarding his claimed intent to turn in the pistol
promptly after retrieving it, the jury was charged, consistent
with the government's suggestion, that the defendant's
well-meaning possession or innocent motive for possession of the
pistol was not a defense.
Third, the government could not disprove the defendant's
version of how he came into possession of the weapon, namely, by
mere fortuity and just shortly before being arrested for
possessing it. By showing the numerous other legal and available
options that the defendant chose to forego to get the pistol into
safe hands, the government's cross-examination of the defendant
weakened the defendant's claim that as soon as he found the gun,
he decided to turn it in. However, the cross established no facts
inconsistent with the defendant's version of how he actually
obtained the gun. On the record before me, this defendant may
well have possessed this weapon very briefly and, at least
initially, not willfully, even though he unlawfully delayed
disposing of it. In my judgment, these facts — or more
accurately, this absence of more damning facts — takes this case
outside the heartland of felon in possession cases. See Koon v.
United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392
(1996) (factors not mentioned in the guidelines may be the basis
for departure where they are "sufficient to take the case out of
the [applicable] Guideline's heartland"); In re Sealed Case,
181 F.3d 128, 137 (D.C.Cir. 1999) (citing Koon).
Finally, this defendant made an exceptional adjustment to
parole following his 1995 release from prison on his extortion
conviction. This is more than a mere recognition of a defendant's
employment record, which courts are ordinarily discouraged from
considering as a departure factor. See U.S.S.G. § 5H1.5. Here,
the defendant's parole officer reported that for four years, the
defendant enjoyed a positive and successful adjustment. He did so
not just by an absence of parole violations, but affirmatively by
securing and holding down regular employment with the same
employer, earning a promotion, maintaining an exemplary
record, providing support for his minor child and his fiancé,
staying drug-free, and keeping the support of his employer
throughout this case. He had come so far (from the depths of an
extortion conviction) for so long (four uninterrupted years) by
exhibiting precisely the kind of behavior the parole system
struggles to achieve often without success, be it in extortion,
felon in possession, or other cases. This is especially
significant in light of the fact that the defendant's explanation
that he retrieved the pistol here to keep it from endangering
others could not be disproven. This factor of exceptional
adjustment to parole is present to a sufficiently unusual degree
that it alone should be a basis for a downward departure. Even if
it would not suffice standing alone, when it is taken in
combination with the other factors mentioned earlier, it places
this case outside of the heartland of guideline cases.
The parties agree with the probation officer's calculation that
the adjusted offense level is 24 and the criminal history
category is V, yielding a sentencing guidelines range of 92 to
115 months. The combination of mitigating factors listed above
taken as a whole warrants a two-level reduction in the adjusted
offense level to level 22. With a criminal history category of V,
the adjusted guidelines range will be 77 to 96 months with a fine
range of $7,500 to $75,000. It is therefore
ORDERED that the defendant's motion be and hereby is GRANTED.
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