The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Delman Davis ("Davis") is before the Court for sentencing after his conviction by a jury of the lesser included offense in Count 1 of the indictment, that is, conspiracy to distribute and possession with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846.*fn2 Davis was one of several co-defendants charged in a multi-kilogram cocaine conspiracy. By virtue of his conviction, Davis faces a statutory term of imprisonment of a minimum mandatory ten years up to life imprisonment.
The Court ordered a presentence report ("PSR") to be prepared by the United States Probation Office. The PSR established a base offense level of 28 for at least 2, but less than 3.5, kilograms of cocaine. Because defendant had two prior drug felonies and was over 18 years of age at the time of the instant offense, the defendant is a career offender within the meaning of USSG § 4B1.1. The offense level under § 4B1.1, therefore, is 37, rather than the lower level based on the base offense level.
Defendant received three criminal history points for a 1995 state conviction for the sale of schedule II drugs and three points for a 1998 state conviction for the sale of schedule II drugs, resulting in a subtotal criminal history score of six. Two points were added pursuant to USSG § 4A1.1(d) because the defendant was on parole for the 1998 conviction when the instant offense occurred and one point was added pursuant to USSG § 4A1.1(e) because the instant offense was committed within two years from his release from prison on July 24, 2000. Nine total criminal history points establish a criminal history category of IV; however, the defendant's criminal history category is enhanced to VI because he is a career offender.
With an offense level 37 and a criminal history category of VI, the defendant's advisory guideline range is 360 months to life imprisonment. Thus, as a result of his career offender status, the defendant's offense level was enhanced by nine levels (from 28 to 37), his criminal history category was enhanced by two categories (from IV to VI) and his advisory guideline range increased from 110 to 137 months to 360 months to life imprisonment. No objection has been made by either the defendant or the government to the calculation of the advisory guideline range. Each party has filed a sentencing memorandum. The United States urges a sentence of 360 months and the defendant seeks a sentence within the range of 110 to 137 months.
A sentencing hearing was held in this case on March 5, 2007. Due to this Court's concern about the appropriateness of either the sentence urged by the government or that urged by the defendant, the Court took the sentencing under advisement for further consideration of the issues raised in the case and gave the parties the opportunity to comment further on several issues raised by the Court as possibly supporting a downward departure or variance from the advisory guideline range. The United States has filed a supplemental sentencing memorandum opposing any variance from the guideline range. After a thorough consideration of the issues and the parties' sentencing memoranda and arguments, the Court is now ready to determine an appropriate sentence.
1. Post-Booker Sentencing Procedures After some initial confusion as the result of Booker decision, the procedures to be utilized by a district court in sentencing a convicted criminal defendant have now become reasonably clear. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005), the Supreme Court declared invalid the statute making the sentencing guidelines mandatory. 543 U.S. at 245. However, it left the guidelines scheme intact for use by the district courts as a guide for sentencing. Id. at 266-267. Post Booker, a district court must impose "a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [section 3553(a)(2)]." 18 U.S.C. § 3553(a). The 3553(a)(2) factors which are to be considered when sentencing are the seriousness of the offense, deterrence of future crimes, protection of the public from future crimes of the defendant, and providing the defendant with needed training or correctional treatment.
18 U.S.C. § 3553(a)(2). The district court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the sentencing guidelines range, policy statements from the Sentencing Commission, the need to avoid sentencing disparities, and the need to provide restitution to the victims. 18 U.S.C. § 3552(a)(1), (3)-(7).
Because the sentencing guidelines are now advisory rather than mandatory, a district court is permitted to vary from those guidelines in order to impose a sentence which fits the mandate of § 3553(a). United States v. McBride, 434 F. 3d 470, 476 (6th Cir. 2006). As an initial matter, however, the district court must first correctly calculate the appropriate advisory guideline range applicable to the case. Consideration of a guidelines departure is part of calculating the correct guidelines range. Id. The sentence imposed by the district court must be both procedurally and substantively reasonable. A sentence may be procedurally unreasonable if "the district judge fails to 'consider' the applicable guidelines range or neglects to 'consider' the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration." United States v. Webb, 403 F. 3d 373, 383 (6th Cir. 2006). A sentence may be considered substantively unreasonable when the district court "[s]elects the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor." Id. at 385. Prior to Booker, sentences outside of the guideline range were permissible only in very limited circumstances. Post Booker, the district court has a greater latitude in sentencing but must consider the guideline range along with its analysis of the § 3553(a) factors. See United States v. Martin, 438 F. 3d 621, 641 (6th Cir. 2006) (Martin, J. concurring).
2. Traditional Guidelines Departures The defendant has not suggested that grounds exist for a departure under the guidelines from the imprisonment range of 360 months to life. However, the Court has reviewed the possible grounds for departures under the guidelines and suggested orally on March 5, 2007, that the defendant's career offender status resulted in an over representation of the defendant's criminal history.*fn3 Since that time, the Court has carefully considered whether such a departure is warranted in this case. Unfortunately for the defendant, it is not.
USSG § 4A1.3(b)(1) provides that "[i]f reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted." This defendant's case is unusual and unique when compared to other defendants this Court ordinarily sees with career offender status under the guidelines in that his only prior criminal history is the two prior felony drug convictions which now establish him as a career offender. He has no other criminal history and on the surface, at least, it could be argued that the resulting criminal history category overstates the seriousness of his criminal history or the likelihood that he will commit other crimes. Prior to Booker, the circuit courts of appeal were virtually unanimous in interpreting the language of § 4B1.1 as allowing for a downward departure if the defendant's career offender status resulted in a significant over-representation of the seriousness of the defendant's criminal history based on the principles set forth in § 4A1.1. See, e.g., United States v. Smith, 278 F. 3d 605, 610-11 (6th Cir. 2002) (holding that small quantities of controlled substances in prior offenses may, in certain circumstances, overstate the seriousness of a defendant's prior criminal history and thus warrant a downward departure from the career offender guideline); United States v. Fletcher, 15 F. 3d 553 (6th Cir. 1994) (affirming a § 4A1.3 downward departure from the career offender guideline); United States v. Perez, 160 F. 3d 87, 89 (1st Cir. 1998) (en banc); United States v. Rivers, 50 F. 3d 1126 (2nd Cir. 1995); United States v. Shoupe, 35 F. 3d 835 (3rd Cir. 1994); United States v. Adkins, 937 F. 2d 947, 951-52 (4th Cir. 1991); United States v. Senior, 935 F. 2d 149 (8th Cir. 1991); United States v. Reyes, 8 F. 3d 1379 (9th Cir. 1993); United States v. Collins, 122 F. 3d 1297, 1305-09 (10th Cir. 1997); United States v. Webb, 139 F. 3d 1390, 1395-96 (11th Cir. 1998); United States v. Spencer, 25 F. 3d 1105, 1112 (D.C. Cir. 1994). Acknowledging these holdings, the United States Sentencing Commission amended § 4A1.3 in 2003 by specifically limiting departures for career offenders to one criminal history category. USSG§ 4A1.3(b)(3).
Although it is clear that downward departures from the career offender guideline when it overstates a defendant's criminal history are permitted, neither the case law nor the guidelines provide adequate guidance as to what facts and circumstances should be considered in determining whether such a result has occurred. Likewise, this Court has found very little in the Sixth Circuit cases dealing with the issue which provides significant guidance to the court in considering a departure under § 4A1.3. A review of the Sixth Circuit cases, however, does reveal some factors which may be important to the Court's consideration. For instance, the type of prior convictions, the seriousness of the prior convictions, the amounts of drugs involved in the prior convictions, the age of the convictions, the length of the defendant's criminal record, the defendant's age at the time he committed the offenses and whether or not the defendant has engaged in repeat drug offenses all would appear to be relevant to the Court's determination. See. e.g., United States v. Tucker, 142 F. 3d 438 (6th Cir. 1998); United States v. Fletcher, 15 F. 3d 553 (6th Cir. 1994); United States v. Feinman, 930 F. 2d 495 (6th Cir. 1991). What is clear from a review of the case law is that a district court may not depart downward solely because it believes the career offender sentence is excessive. United States v. LaSalle, 948 F. 2d 215 (6th Cir. 1991).
Even though Davis' prior criminal history consists only of the two offenses which qualify him for career offender status, this Court cannot conclude, based upon the circumstances of this case, that the criminal history category resulting from career offender status overstates Davis' criminal history or his likelihood of recidivism. It is quite clear that it was Congress' intent to punish more severely those defendants who committed a third drug felony or violent felony and Davis has now committed his third. In addition, because Davis has committed three felony drug ...