Motion for downward departure granted

Daily Record (Rochester, NY), Sep 30, 2004 by Kevin M. Momot

Where the defendant requested a downward departure pursuant to the sentencing guidelines (USSG Section 5K2.20), all elements for an aberrant behavior departure under Section 5K2.20(b) were satisfied since the offense in question was committed without significant planning, was of limited duration and was a deviation from the defendant's otherwise law-abiding activity.

Reviewing the facts, applicable provisions and relevant case law in United States v. Rodney Wendt, U.S. District Court for the Western District of New York Judge William M. Skretny granted the defendant's motion for a downward departure.

The Facts

The defendant, Rodney Wendt, was the respondent on an order of protection issued in favor of his ex-wife. Under the terms of the order, Wendt was prohibited from possessing any firearms or ammunition.

On Feb. 11, 2003, Wendt and his ex-wife were arguing outside his house. At some point during the argument, Wendt retrieved a shotgun from inside the house. According to the ex-wife's testimony, Wendt pointed the barrel of the gun at her and made threatening remarks. Wendt admitted he displayed the firearm, but contended he never pointed it directly at his ex-wife.

On May 13, 2003, the grand jury issued an indictment charging Wendt with Knowingly Possessing a Firearm While Subject to a Court Order Restraining Him From Threatening, Harassing, or Stalking an Intimate Partner in violation of 18 USC Section 922(g)(8) and 924(a)(2). Wendt subsequently pled guilty to the charges and submitted a motion for a downward departure pursuant to Section 5K2.20 of the sentencing guidelines.

Court's Analysis

Qualification For 'Aberrant Behavior' Departure

Judge Skretny first noted a sentencing court may impose a sentence outside of the range established by the sentencing guidelines if there exists a mitigating circumstance ... not adequately taken into consideration by the sentencing commission in formulating the guidelines that should result in a sentence different from that described, according to 18 USC Section 3553(b).

Section 5K2.20 of the sentencing guidelines warrants a downward departure where the defendant committed a single criminal act that: (1) was committed without significant planning; (2) was of limited duration; and (3) represented a marked deviation ... from an otherwise law-abiding life. This is referred to as an aberrant behavior departure, as stated in United States v. Castellanos, 355 F3d 56, 58 (2d Cir. 2003).

However, an aberrant behavior departure is not available where the defendant discharged a firearm or otherwise used a firearm or a dangerous weapon. USSG Section 5K2.20(c)(2). The term otherwise used includes conduct that did not amount to the discharge of a firearm but was more than brandishing, displaying or possessing a firearm or other dangerous weapon, pursuant to the sentencing guidelines.

Application

Here, the court determined Wendt initially met all elements for an aberrant behavior departure under Section 5K2.20(b) since the offense was committed without significant planning, was of limited duration and was a deviation from Wendt's otherwise law-abiding activity.

With these elements satisfied, the question was whether Wendt should still be prohibited from receiving a departure where he otherwise used the firearm in connection with the offense. A supporting deposition and testimony from Wendt's ex-wife stated that Wendt pointed the gun directly at her and verbally threatened her - conduct amounting to something more than mere brandishing or displaying of a firearm.

In his testimony Wendt admitted he did, in fact, display the shotgun to intimidate and frighten his ex-wife. However, the court determined the evidence indicated Wendt never pointed the shotgun directly at his ex-wife, but merely brandished the weapon. USSG Section 1B1.1, comment n.1 (C).

Judge Skretny concluded the firearm was not otherwise used in connection with the offense since this required something more than brandishing the weapon, pursuant to the sentencing guidelines.

Therefore, Wendt met all required elements for an aberrant behavior departure under Section 5K2.20(b), and the court determined a two-level downward departure was appropriate.

Conclusion

The defendant's motion for downward departure was granted.