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United States v. Vassar

February 9, 2007

UNITED STATES OF AMERICA
v.
MICHAEL CARL VASSAR



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is "Defendant Vassar's Motion To (sic) For Relief From Prosecutorial Sentencing Misconduct, Vindictiveness, Unconstitutional And Selective Guideline Sentencing Customs And Practices." [Doc. 634]. The defendant's motion seeks eight different forms of relief as follows:

1. The Court dismiss, deny and/or strike the Government's objections to the PSR report based on the Phillips' information; and/or

2. The Court exclude Phillips from Vassar's Guideline sentence computation;*fn1 and/or

3. The Court exclude Fann and Rice information form [sic] Vassar's Guideline sentence computation; and/or

4. The Court compute Vassar' Guideline sentence for the jury's verdict conspiracy sentence liability object of 6.8 grams of cocaine*fn2 ; and/or

5. The depart from Vassar's Guideline sentence computation*fn3 ; and/or

6. The Court find any presumption of reasonableness of a Guidelines sentence has been rebutted; and/or

7. The Court give no weight to the Guideline calculation asserted by the Government;*fn4 and/or

8. The Court consider undisclosed benefits provided to witnesses by the Government in making creditability [sic] determinations for sentencing determinations.

For the reasons set forth below, with the exception of one small caveat discussed below, the motion will be DENIED.

Defendant's Allegations

The essence of Vassar's complaint in this motion is that the Assistant United States Attorneys prosecuting this case have manipulated and defeated the purpose of the United States Sentencing Guidelines "through use of charging decisions, plea agreements, and selective presentation and/or withholding of information from the officer preparing the PSR and the Court." In support of his contention, Vassar has filed a chart created by his counsel which purports to compare the "real offense" guideline calculations for various other defendants who have appeared before this Court with the sentences actually imposed by this Court. According to the defendant, the prosecutors in this division have a "custom and practice of manipulating guideline calculations" resulting in sentences that are "unfair, disproportionate, non-uniform and disparate." Vassar alleges a 350% to 450% difference between sentences that should have been imposed in other defendants' cases based upon their "real offense" conduct and the sentence actually imposed.

Vassar argues that 18 U.S.C. § 3553(a)(4) and U.S.S.G. § 5K1.1 constitute the only lawful guideline sentencing benefit which can be afforded to a defendant who cooperates with the government. He specifically complains that the charging decisions and plea agreements entered into between the government and other defendants are inconsistent with the position the government is taking as to Vassar's sentencing in this case thereby resulting in grossly disparate sentencing in violation of 18 U.S.C. § 3553(a)(6). He further complains that the policy of the United States Attorney's Office is designed to cause harsher sentences for those who exercise their right to a jury trial and "who refuse to commit perjury" for the government. Vassar also argues ...


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