Federal District Court Opinions
U.S. v. GOCHENOUR, (Neb. 12-11-2006) UNITED STATES OF
AMERICA, Plaintiff, v. GARY DEAN GOCHENOUR, Defendant. Case
No. 8:04CR204. United States District Court, D. Nebraska.
December 11, 2006
MEMORANDUM AND ORDER (With Tentative Findings)
RICHARD KOPF, District Judge
This case involves an incompetent robber. Using a toy gun,
the defendant stuck up a restaurant and several banks over
three days in the summer of 2001 to fuel his crack habit.
He did not hurt or traumatize anyone. He got away with less
than $2,700. On a scale of I to VI, he has the worst
criminal history possible. He has been in and out of drug
treatment in the past. Until recently, that treatment has
failed. Given these facts, my inclination was to “throw
away the keys.” However, the defendant’s excellent public
defender asserted that this case was unusual, and he asked
that I take a deeper look. I did what he requested.
I took evidence on the issues that make this case unusual
on August 5, 2005.[fn1] I then decided that it would be
appropriate to continue sentencing for about a year to see
if the defendant could maintain his unusually good
progress.[fn2] In order to objectively gauge that progress,
I also ordered a second revised presentence report. I am
now in receipt of the second revised presentence
investigation report (2nd PSR). It was submitted on
November 1, 2006, pursuant to my earlier order. Page 2
Among other things, the second revised presentence
report[fn3] adjusts the base offense level upward by one
level due to an earlier oversight[fn4] and it states that a
“24 month prison sentence would be sufficient, but not
greater than necessary,[fn5] to comply with the purposes
set forth at 18 U.S.C. [§] 3553(a)(2)” even though
the advisory Guidelines call for a much longer
sentence.[fn6] The parties have had an opportunity to brief
the issues following their review of the second revised
presentence report and I have carefully considered those
briefs.[fn7] Page 3
I now issue this opinion to guide the parties and me at
sentencing.[fn8] While my views are tentative, and the
government and the defendant will be given an opportunity
to convince me otherwise, I am likely to impose a 24-month
prison sentence.
I. BACKGROUND
I first explain the proper Guidelines calculations. Then,
I describe the offense conduct and a state robbery that
occurred as a part of that spree. After that, I describe
the offender up to the point of his work release from state
prison on the latest charges. Then, I describe the
defendant’s progress since that time.
A. The Proper Guidelines Calculations Before Departures
Before departure, the proper Guidelines calculations are
these:
Total Offense Level: 29[fn9] Criminal History Category:
VI[fn10] Custodial Range: 151-188 months[fn11]
Supervised Release Range: 2-3 years[fn12] Fine Range:
$15,000-$150,000[fn13] Page 4 Restitution:
$1,935.49[fn14]
[fn9] 2nd PSR ¶ 61.
[fn10] 2nd PSR ¶ 74. The defendant has a total of 16
criminal history points. Nine of those points came from two
“burglaries.” More about those crimes later.
[fn11] 2nd PSR ¶ 107.
[fn12] 2nd PSR ¶ 111.
[fn13] 2nd PSR ¶ 116.
[fn14] 2nd PSR ¶ 120.
B. The Bank and Restaurant Robberies
The events that give rise to this case and a related state
case took place between June 14, 2001, and June 17, 2001,
in the Omaha, Nebraska, area. During this time, Gary Dean
Gochenour (Gochenour) obtained a toy gun[fn15] and then
proceeded to rob or attempt to rob three financial
institutions and a restaurant.
On the morning of June 14, 2001, Gochenour robbed the
Metro Health Services Credit Union and displayed the ersatz
gun as a part of that robbery.[fn16] While he took $7,361,
he did not get away with the money. Rather, a “dye pack”
exploded and the defendant dropped the money about 100
yards from the bank. To accomplish this failed robbery,
Gochenour stole a car worth $4,000.[fn17]
That afternoon, Gochenour entered the Commercial Federal
Bank and robbed it of $1,935.49.[fn18] Again, he displayed
a “gun.” Page 5
Two days later, and on June 16, 2001, the defendant tried
to rob the Mid City Bank.[fn19] He claimed to have a gun.
However, a bank officer snatched the bag away from a teller
as she was about to hand the bag with the money over to
Gochenour. The officer ordered the defendant to leave the
bank; Gochenour complied and ran away.
Perhaps because bank robberies were too stressful, what
with exploding dye packs and bank officers who were not the
least bit intimidated by a toy gun, the defendant turned to
easier pickings. On June 17, 2001, the defendant entered
the IHOP restaurant in Omaha, Nebraska, revealed a “gun,”
and robbed that fine eatery of $660.[fn20]
The spree quickly came to an end on June 22, 2001, when
the defendant was arrested by the Omaha Police Department
for the IHOP restaurant robbery.[fn21] Gochenour was
implicated in the robbery through video surveillance and
photo lineups. Gochenour was convicted of the IHOP robbery
and was sentenced to 3-5 years in prison on October 16,
2001.
Almost immediately, the federal government became aware of
Gochenour’s arrest.[fn22] The government quickly tied him to
the robberies which form the charges in this case. Despite
this knowledge, the government waited until he was released
from state prison in 2004 to indict him. By then, and as we
shall see, Gochenour’s life had begun to change. Page 6
The total actual loss to victims of the four robberies was
minimal. The car Gochenour stole was recovered undamaged and
he made away with less than $2,700 in cash.[fn23]
Specifically, the Commercial Federal Bank lost $1,935.49
and the IHOP restaurant lost $660. As established by the
probation officer’s investigation, there is no information
that anyone was injured or traumatized during any of these
robberies.[fn24]
C. Before Work Release in 2003
Gochenour was born on August 10, 1967.[fn25] Until the
defendant’s late twenties, his life was, according to his
brother, “very normal.”[fn26] He reported a close
relationship with his parents.[fn27] He loved music,
learning to play the drums at nine years of age.[fn28]
Unlike the defendant, his siblings have always been
productive members of society.[fn29]
Although psychological testing not surprisingly reveals
that he can be impulsive, Gochenour is smart.[fn30] He has
an IQ of 115. At the Metropolitan Community College, were
he studied such things as print reading and sketching,
Page 7 principles of management, microcomputer
fundamentals, computer keyboarding, and floor covering, his
grade point average was 4.0.[fn31]
With the exception of a 1984 juvenile conviction, when he
was 16, for possession of less than an ounce of marijuana
and possessing liquor in a park, Gochenour had no criminal
history until 1995 when he was 27 years of age.[fn32] He
quickly made up for lost time. Within the space of six
years, and between 1995 and 2001, Gochenour collected 16
criminal points.[fn33] During that time, he served three
stints in Nebraska prisons.
What happened to Gochenour? Why did he follow a
law-abiding path until his late twenties, and then so
quickly become a “career” criminal?
Clay Gochenour testified and told me about his
brother.[fn34] He explained that in 1992 the boys’ mother
died after suffering from an agonizing series of heart
attacks. Tragically, and apparently without warning, “the
stress of it all took my father two days later.”[fn35] At
that point, “we watched Gary just go on a downhill spiral
emotionally. He didn’t know how to deal with it.”[fn36]
Page 8
The defendant turned to crack cocaine, and quickly became
addicted. He soon had a daily habit of $50 to $200.[fn37]
He voluntarily sought inpatient drug treatment in 1994.
While he successfully completed the 28-day program, he
began abusing crack again within a few days of his
discharge.[fn38]
Between 1994 and his last incarceration, which began in
June of 2001, Gochenour’s life was tumultuous. He became
engaged to be married, and fathered a child, but his
fiancee broke off the relationship in 1998 because of the
defendant’s drug abuse.[fn39]
His family and friends tried to help. For example, Clay
gave his brother a place to live, but later threw him out
and called the police when Clay found his brother’s stash
of crack cocaine.[fn40] Despite these kindnesses, the
defendant stole from his brother,[fn41] the defendant’s
grandmother,[fn42] and the defendant’s friends[fn43] in
order to pawn the stolen items to feed his all-consuming
crack habit.
On August 2, 1995, Gochenour’s descent into law-breaking
began with an attempted burglary of a lounge.[fn44]
Gochenour stole a guitar and pawned it an hour Page 9
later. He was sentenced to one year of probation and ordered
to pay $125 in restitution. He failed at probation, but he
was not jailed. He admitted using crack and was discharged
unsuccessfully from another inpatient chemical dependency
program.
On April 23, 1996, Gochenour purloined a ring (later
recovered) from a jewelry store.[fn45] Gochenour explained
to the police that he stole the ring because he had no
place to live and “decided at the spur of the moment to do
something” to find money to remedy that situation. Seven
days later, and on May 1, 1996, Gochenour burglarized his
grandmother’s home, stole a television, and pawned it for
$120 to buy crack.[fn46] His grandmother was in the
hospital at the time of the burglary. On January 13, 1997,
he was sentenced to prison for both of these crimes. He
received a sentence of 2-5 years on each charge to be
served concurrently. He was paroled on April 28, 1998, but
his parole was revoked three months later, on July 28,
1998.
On July 1, 1998, Gochenour stole a guitar, an amplifier,
and various power tools from his brother, Clay.[fn47] On
July 2, 1998, he broke into the home of a friend and stole
two keyboards and an amplifier. When caught for these
crimes, the defendant admitted that he had pawned the
stolen merchandise to buy crack cocaine. He used his own
name on the pawn ticket.[fn48] On December 14, 1998, he was
sentenced to 3-5 years in prison for the burglary of his
friend’s home. The theft charge involving his brother was
dismissed. Page 10
Gochenour was paroled on May 17, 2001, from his second
stint in prison. But he was not done yet. About one month
later, between June 14 and June 16, 2001, Gochenour
committed the bank robberies for which he stands charged in
this case.[fn49] On June 17, 2001, he robbed the IHOP
restaurant and on October 16, 2001, he was sentenced to his
third term in state prison.[fn50] He received a sentence of
3-5 years.
D. From and After Work Release in 2003
While serving his third prison sentence, the defendant
began to seriously devote himself to work, first as a dye
maker and later building homes for low-income
families.[fn51] After those experiences, Gochenour was
placed in the Nebraska “work release program” on October
13, 2003.[fn52] The Nebraska penal authorities rated the
defendant’s progress while on work release as “outstanding”
in all areas. He completed work release on May 3, 2004, in
preparation for the mandatory discharge of his state prison
sentence on May 11, 2004.
Despite the fact that the government knew the defendant
had committed these federal crimes by the fall of 2001, and
even though the government knew the defendant was in state
custody,[fn53] the defendant was not indicted until April
22, 2004.[fn54] The defendant was arrested on these federal
charges on May 11, 2004, the Page 11 day he was released
from state prison.[fn55] He was placed on federal pretrial
release on May 19, 2004, and has remained under that
supervision ever since. He has had no significant problems
over the last two and one-half years of fairly intense
supervision.[fn56]
The probation officer has carefully investigated and
chronicled Gochenour’s progress over the last several years
since his release from state prison in May of 2004.[fn57]
According to the probation officer, there has been a
“fundamental change in attitude.”[fn58] After “comparing
his life pre-incarceration to his life since his release
one might think we were looking at two entirely different
people. A post-offense rehabilitation departure, pursuant
to U.S.S.G. § 5K2.0, appears to be justified.”[fn59]
In “bullet-point” fashion, here are the highlights of
Gochenour’s progress since being placed on work release:
* After ten years or more of constant drug abuse, including
two failed attempts at in-patient drug treatment,
according to the probation officer, “[Gochenour] has
[seemingly] overcome a serious addiction to crack cocaine.
Almost all of his criminal Page 12 history was created as
a result of his addiction to crack. Surprisingly, he has
been able to maintain sobriety upon his discharge from
state prison without any formal treatment or long-term
support system such as a sponsor and N/A or A/A
attendance. With the exception of minor traffic violations
for speeding and improper turn, he has maintained a
law-abiding lifestyle.”[fn60]
* Since October 13, 2003, when he started in the Nebraska
work release program, Gochenour has labored for Valvoline
Instant Oil Change at the company’s Lincoln, Nebraska,
office.[fn61] He started as a technician, then became an
assistant manager, and, most recently, became manager of
the store. Gochenour also assists in the management of
another Valvoline store in Beatrice, Nebraska. Gochenour
supervises four other employees and works between 54 to 57
hours a week. He makes $34,000.
* Monte Haeffner, the president and owner of Valvoline
Instant Oil Change, appeared at the evidentiary hearing
and spoke glowingly of Gochenour ability, diligence, and
honesty in the work place.[fn62] Haeffner has experienced
dealing with convicts because his company offers jobs to
prisoners on work release. Comparing Gochenour to other
prisoners he has hired, Haeffner testified that the
defendant was different because he “gets it” and because
the Page 13
defendant offers no “excuses for his behavior in the
past.”[fn63] Haeffner told me that “I understand the
judicial system expects to punish people and work as a
deterrent . . . but I think [the Nebraska work release
program] got some success here. . . .”[fn64] According to
Haeffner, it would be a “horrendous waste” to put
Gochenour back in prison.[fn65]
* Gochenour has come into frequent contact with Michael
Nicholson, the service center manager at the Beatrice
location of Valvoline Instant Oil Change. Nicholson
testified at the evidentiary hearing.[fn66] Prior to
working at Valvoline, Nicholson had been a police officer
for about seven years. He was injured taking a subject
into custody, and began to work at Valvoline as a result.
Because of his law enforcement background, Nicholson
believed that “once a convict, you’re always going to be a
convict, there’s going to be no changing. . . .”[fn67] But
despite being “very hesitant and skeptical about how long
he would last[,]” Gochenour “proved me wrong.”[fn68]
According to Nicholson, Gochenour is “an example of what
[prison] was originally designed to do, rehabilitate [a
prisoner] to where [he is] Page 14 a productive member of
society, and Gary has achieved that now.”[fn69]
* As I noted earlier, Gochenour’s brother, Clay, turned him
in to the police when he found the defendant’s drug stash.
But, as also noted earlier, Clay has always tried to help
his brother despite the fact that his brother stole from
him. Clay Gochenour is thus an important and credible
source of information. Clay appeared at the evidentiary
hearing and testified in support of his brother.[fn70]
Clay, who is five years older, testified that since the
defendant’s work release in 2003, “he’s matured, he’s
grown up . . . he understands his place in life and . . .
what he’s supposed to do with the rest of his life, raise
his daughter, [and] return to us as a family. . . .
“[fn71]
* Gochenour is now dating a woman that he first met when
the two were children.[fn72] She is an Omaha, Nebraska,
radio personality. The probation officer interviewed her,
and she described the defendant as “amazing” and an
“inspiration” based on his overcoming the obstacles of his
past. She states that she has never seen him use alcohol
or drugs. Page 15
* Although the defendant and his former fiancee no longer
have a relationship (and that has engendered some
bitterness on her part and on the part of the defendant’s
daughter), she told the probation officer that Gochenour
has made “significant changes in his life,” that he is a
“decent guy,” that she is “proud of him,” and that he is
voluntarily making $200-per-month child support payments
even though no child support has been ordered.[fn73]
* While not testifying, numerous people wrote letters of
support attesting to Gochenour’s changed attitude.[fn74]
Two of those letters are particularly instructive. Tim
Miklas, one of the friends that Gochenour victimized in a
burglary,[fn75] recounted that the defendant has “changed
himself back into [a] person of good character, with help
from the legal system, family and friends.”[fn76] Another
friend, who has known Gochenour since they were 15 years
old, wrote that the “Gary that was caught up in the land of
drugs, illegal activities, is no more. I know him as well
or better than anyone, he is completely clean, away from
drugs.”[fn77]
* Even though Gochenour works long hours, and is
cash-strapped, he has made significant efforts to assist
others who are less fortunate. Gochenour has returned to
playing music with a band. Page 16 He and his band mates
coordinated a benefit concert for military families in
January of 2005, and in February of 2006 they contributed
two musical selections to a compact disc that was given,
without compensation, to the American Cancer Society.[fn78]
The Director of Development for the American Cancer
Society in Nebraska confirms that the Society has in turn
sold copies of the disc to the public thereby raising over
$10,000.[fn79]
* As one might imagine, Gochenour’s progress has not been
without bumps. While he is frequently drug-tested, has
never failed a drug test, and pays $35 a month to
partially pay for the cost of that testing,[fn80] he has
missed three tests during the years he has been under
federal pretrial release.[fn81] That said, the urine
samples that he gave soon after missing these tests were
negative. His employer verified that one of the missing
tests was probably a result of the demands of work since
the company was “swamped” after having lost two employees
during this period of time. Gochenour was also cautioned
by his pretrial service officer when she observed a photo
of Gochenour’s band in close proximity to beer.[fn82]
Gochenour has also received several tickets for minor
traffic violations.[fn83] Still further, while Gochenour
was Page 17 active in NA until later in 2005, his sponsor
“fell off the wagon” and since then Gochenour has only
attended occasional NA meetings.[fn84] In addition,
suffering from job stress, a deteriorating relationship
with his child and the child’s mother, and the stress of
the impending sentence in this case, Gochenour referred
himself to family counseling in June of 2006.[fn85] As of
November 1, 2006, he has attended seven sessions.
[fn60] 2nd PSR ¶ 131.
[fn61] 2nd PSR ¶ 98.
[fn62] Filing 57, at 23-34. Mr. Haeffner has a variety of
significant business interests. Id. at 24-25. He told me
that he was “old, but . . . not stupid.” Id. at 31. I found
him to be a tough-minded businessman who was quite
believable.
[fn63] Filing 57, at 28-29.
[fn64] Filing 57, at 31.
[fn65] Filing 57, at 31.
[fn66] Filing 57, at 12-18.
[fn67] Filing 57, at 14.
[fn68] Filing 57, at 14.
[fn69] Filing 57, at 15.
[fn70] Filing 57, at 19-22.
[fn71] Filing 57, at 22.
[fn72] 2nd PSR ¶ 87.
[fn73] 2nd PSR ¶ 86. She also testified at the
evidentiary hearing and spoke highly of Gochenour. Filing
57, at 35-39.
[fn74] Exhibits 106, 111-114.
[fn75] 2nd PSR ¶ 68.
[fn76] Exhibit 106.
[fn77] Exhibit 112.
[fn78] 2nd PSR ¶ 89.
[fn79] 2nd PSR ¶ 89.
[fn80] 2nd PSR ¶ 103, at 23.
[fn81] 2nd PSR ¶ 6.
[fn82] 2nd PSR ¶ 7.
[fn83] 2nd PSR ¶ 5.
[fn84] 2nd PSR ¶ 92.
[fn85] 2nd PSR ¶¶ 93-95. His therapist
provided the probation officer with a letter and reported
nothing out of the ordinary.
II. ANALYSIS
I first explain why I believe that three departures are
appropriate. After that, I review the statutory sentencing
factors. Ultimately, I explain that a prison sentence of 24
months is proper.
A. Departure Due to Overstatement of Criminal History
I will likely depart from criminal history category VI to
criminal history category V pursuant to U.S.S.G. §
4A1.3(b).[fn86] It is also likely that I will depart Page
18 downward three levels in order to eliminate the impact
of increasing the defendant’s offense level from 29 to 32
as a result of the “career offender” enhancement.
The defendant committed two burglaries in 1996 and 1998.
Those convictions, which generate nine criminal history
points[fn87] and a career offender designation that
increases the total offense level,[fn88] significantly
overstate the seriousness of the offenses.
One burglary involved the defendant entering his
grandmother’s home with a key while she was gone and
stealing a used television set that was pawned for
$120.[fn89] Theft of property having less than $200 in
value would typically garner a low-grade misdemeanor
charge. The other burglary involved entering a friend’s
home through an open window when the defendant had reason
to believe the friend was not at home.[fn90] These are
burglaries in name only and grossly overstate the
seriousness of the real offense conduct.[fn91] Page 19
If this was the only departure, the Guidelines range for
purposes of imprisonment would be 110 to 137 months. After
reduction for acceptance of responsibility, the total
offense level would be 26 and the criminal history category
would be V.[fn92] But, as I shall next explain, two other
departures are appropriate.
B. Departure Due to Delayed Prosecution and Resulting
Distortion of the Guidelines
By delaying the federal prosecution of this case for a
very long time and until after the defendant served his
state sentence for robbery of the IHOP restaurant, federal
law enforcement authorities (unintentionally) distorted the
Guidelines. I no longer have the opportunity to run the
federal sentence concurrent with the sentence for the
robbery of the IHOP because the defendant has already
served that state sentence. As earlier explained, both the
IHOP robbery and the federal bank robbery charges resulted
from a drug-induced spree over a short period of time.
Because that IHOP robbery was part of one short spree that
also involved the federal offenses, a fully concurrent
sentence would have been appropriate had I not been
deprived of the opportunity to impose such a
sentence.[fn93]
Accordingly, and pursuant to U.S.S.G. § 5G1.3(c) and
U.S.S.G. § 5K2.0, I am likely to depart downward and
reduce the federal sentence by 35 months (the time Page
20 spent in state custody on the IHOP charge).[fn94] The
delay of several years in the investigation and prosecution
of this federal case (and thus sentencing) was caused by
the government concentrating on other things even though it
could have easily prosecuted the defendant soon after he
committed the federal offenses.[fn95] While I do Page 21
not second-guess or fault the government for how it
allocated its resources, the Guidelines should not be
distorted either. As a result, the presumptive Guidelines
range for imprisonment purposes with this departure,
together with the departure for overstatement of criminal
history discussed above, would be 75 to 102 months.[fn96]
In sum, and absent any other departures, this range (75 to
102 months), when considered with the 35 months already
served in state custody, provides the appropriate
incremental punishment for both the state and federal
crimes committed by the defendant over three days in June
of 2001.[fn97] A higher range would allow the government to
unilaterally distort the Guidelines.[fn98] Page 22
C. U.S.S.G. § 5K2.0 Departure Due to Extraordinary
Post-Offense Rehabilitation
Although our Court of Appeals has generally been intolerant
of such departures, it has recognized that a “departure
under section 5K2.0 is proper where a district court finds
`an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the
Sentencing Commission.'”[fn99] The court has cautioned that
“[b]ecause the Commission accounted for ordinary
post-offense rehabilitation under section 3E1.1, a
defendant’s rehabilitation must be exceptional enough to be
atypical.”[fn100] And, regarding the question of
uniqueness, I have been warned to “explain any
extraordinary or atypical factors justifying departure” or
reversal is likely.[fn101]
On facts much less compelling than those presented here,
substantial steps at overcoming drug addiction, while
maintaining employment and partially caring for one’s
child, have been labeled “significant post-offense
rehabilitative conduct” by the Eighth Circuit.[fn102] Those
and other relevant factors are present here. Page 23
To be specific, I am persuaded that Gochenour has engaged
in extraordinary and atypical post-offense rehabilitation
because of the following eleven factors:
(1) Gochenour was a law-abiding citizen for his first 27
years, and only descended into a depraved, drug-ridden
lifestyle after the tragic nature of his parents’ death
propelled him into a downward spiral.
(2) Even the government’s lawyer conceded that “it’s
unusual” for a person to be convicted of a part of a crime
spree, serve his time in state prison, appear to have
turned his life around as a result of that incarceration,
and then be prosecuted for another part of that same spree
in federal court after having served his state time.[fn103]
(3) Gochenour’s progress while on work release was
characterized as “outstanding” by Nebraska authorities.
(4) Gochenour has seemingly overcome a 10-year history of
nearly all-consuming drug abuse (including two failed
inpatient drug treatment attempts) and has maintained
sobriety for nearly two and one-half years as shown by
periodic drug testing, steady work, and the reports of
others who know him well. Page 24
(5) Gochenour has devoted himself to gainful employment
and, after rising through the ranks, holds a management
position and supervises four employees, and that job earns
him $34,000 per year.
(6) Mr. Haeffner and Mr. Nicholson, who work closely with
Gochenour and who have dealt with other convicts, believe
that Gochenour has been fully rehabilitated.
(7) Family and friends, including those who Gochenour
victimized in the past, attest to Gochenour’s
rehabilitation.
(8) Gochenour has voluntarily contributed to the financial
support of his child.
(9) Gochenour has made significant contributions to
charity.
(10) When confronted with stress in his life, Gochenour has
had the mature wisdom to seek counseling.
(11) For two and one-half years, Gochenour has accomplished
the foregoing, all the while knowing that the mythical
“Sword of Damocles” (in the form of the federal sentence)
hung over his head.
The foregoing notwithstanding, the government is not
convinced. I have carefully reviewed the government’s
brief, the cases cited therein, and the assertion that the
defendant’s behavior does not amount to extraordinary
post-offense rehabilitation. I respectfully disagree. In
fact, without intending to be unduly argumentative, I
challenge the government to find me an opinion where our
Court of Appeals (or any other) has declared that conduct
comparable to the eleven factors listed above is merely
ordinary as opposed to being extraordinary. Page 25
In summary, and to be clear, I fully understand and
appreciate that departures for post-offense rehabilitation
should be very rare, and must be based on truly
extraordinary circumstances. Those circumstances exist here
within the meaning of U.S.S.G. § 5K2.0.
Nonetheless, the Court of Appeals has instructed that the
extent of any such departure must be explained by reference
to the sentencing factors found in 18 U.S.C. §
3553(a).[fn104] I address that difficult question next.
D. The Extent of the Section 5K2.0 Departure for
Extraordinary Post-Offense Rehabilitation as Measured
Against the Section 3553(a) Factors
After the departures for overstatement of criminal history
and delayed prosecution, but before departure for
extraordinary post-offense rehabilitation, the proper
Guidelines range for prison purposes stands at 75 to 102
months. Given Gochenour’s extraordinary efforts at
post-offense rehabilitation, I find and conclude that a
prison sentence of 24 months is the sentence which is most
consistent with the advisory Guidelines and all the
sentencing factors. Pursuant to U.S.S.G. § 5K2.0, I
Page 26 will likely depart downward as a result of that
rehabilitation and impose such sentence.
In arriving at this decision, I realize that a 24-month
prison sentence is a very big discount. But, I respectfully
suggest, and truly believe, that the justification for this
break is equally compelling. With reference to the most
relevant statutory sentencing factors,[fn105] I explain
next why I have tentatively come to this decision.
18 U.S.C. § 3553(a)(1)
This portion of the sentencing statute requires that I
examine “the nature and circumstances of the offense and
the history and characteristics of the defendant.” These
bank robberies were among the most innocuous that I have
seen. No one was injured or traumatized and very little
money was taken. In fact, the robberies were pathetically
inept. The bank robberies and the related IHOP restaurant
robbery, for which the defendant has served 35 months of
state time, all took place over the span of only three
days.
As for the history and characteristics of the defendant, I
have detailed that information earlier. For this purpose,
suffice it to say that Gochenour is a smart man, who was
law-abiding until he went very wrong after the death of his
parents when he was 27 years of age. Now, at age 39, and
after “outstanding” success while on work release, he has
seemingly overcome an all-consuming addiction to crack
cocaine while becoming a highly productive member of
society. He has done this under the unusual pressures of a
pending federal indictment. Page 27
To summarize, the crimes were comparatively mild, the
defendant has partially served his debt to society for the
crime spree by spending 35 months in state custody for a
portion of that spree, and the defendant, like Lazarus, has
apparently been rehabilitated. These factors heavily tip
the scale toward leniency.
18 U.S.C. § 3553(a)(2)(A)-(D)
This part of the sentencing statute requires an analysis
of several issues. I turn to those next.
There is a need for the sentence to reflect the seriousness
of the offense, to promote respect for the law, and to
provide just punishment. In this regard, I agree with the
government that some time in prison must be imposed to
satisfy these needs. In particular, the concept of “just
punishment” requires Gochenour to “pay” for the three bank
robberies. “Payment” means going behind the bars for some
period of time.
There is also a need for the sentence to afford adequate
deterrence and, relatedly, to protect the public from
further crimes by the defendant. In this respect, there are
two types of deterrence. I must deter the offender and
protect the public from him, and I must also try to deter
other potential offenders. As the probation officer
recognized, “the public does not need protection from Mr.
Gochenour” now that he has turned his life around.[fn106]
Thus, the concept of specific deterrence favors leniency.
But, appreciating the centrality of banks in our financial
system, we cannot allow other bank robbers to think that
inventive arguments may somehow insulate them against
prison should they elect to rob financial institutions.
Indeed, if there is Page 28 any type of criminality that
prison sentences deter, it is bank robbery. This portion of
the statute argues in favor of a stiff prison sentence.
Given the defendant’s extraordinary turn-around, there is
no need for the sentence to provide the defendant with
educational or vocational training, medical care, or other
correctional treatment. (But I agree with the probation
officer that if a prison sentence is imposed, the defendant
would benefit from the Bureau of Prison’s intensive drug
treatment program.[fn107]) This portion of the statute tips
toward leniency.
18 U.S.C. § 3553(a)(4)
This portion of the sentencing statute requires that I
examine the relevant sentencing range provided by the
Guidelines. As noted earlier, that range, before departure
for extraordinary rehabilitation, but after departure for
overstatement of criminal history and distortion of the
Guidelines by delayed prosecution, is 75 to 102 months in
prison. That range is the normal or presumptively correct
sentence. This portion of the statute therefore argues in
favor of a sentence of at least 75 months in prison. It
also provides a measuring point for gauging the
reasonableness of any lesser sentence.
18 U.S.C. § 3553(a)(6)
This part of the sentencing statute requires that I address
the “need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct.” Here, there is little likelihood of
“unwarranted” sentencing disparity should I decide to
impose a lenient sentence. Page 29
After nearly 20 years as a federal judge, with nearly 15
of those years as a federal district judge, I have
sentenced more than a thousand people.[fn108] I have seen
only one case that is similar to this one, and that case is
only roughly comparable.[fn109] Indeed, I have never seen a
case where a defendant, with such a horrible criminal
history, is prosecuted by state authorities for his
involvement in a crime spree, who then, against all odds,
rehabilitates himself as a part of serving three years in
state prison, and, after that, is prosecuted by the
government for the federal portion of the spree. In short,
a sentence substantially below the Guidelines will not
result in unwarranted sentencing disparity because
defendants who have committed similar crimes are not likely
to have a record similar to Gochenour’s record.
Why 24 Months?
Candor requires me to write that picking this sentence
teeters on the arbitrary. While perhaps no more than a
conclusion, my best explanation is this: A prison sentence
of 24 months, on top of 35 months in state prison for a
portion of the crime spree, furthers all the reasons we
send robbers to prison, while not unnecessarily impeding
the defendant’s very atypical rehabilitation.[fn110] A
sentence shorter than 24 Page 30 months is simply too
lenient, and a sentence of more than 24 months threatens to
erode or even destroy the extraordinary progress that
Gochenour has achieved.
The Parties’ Arguments Regarding the Extent of the
Departure
As might be expected, the parties have radically different
views about the extent of any departure for post-offense
rehabilitation. I briefly discuss those views next.
Gochenour’s counsel argues, in essence, that it would be a
terrible waste to send the defendant to prison now that he
has been rehabilitated. Counsel also implicitly suggests
that it would be cruel to do so. In one sense, it may be
both wasteful and cruel to send Gochenour back to prison,
but, in another sense, such a sentence is clearly required.
Sentencing is not only about the individual defendant.
There are broader purposes at stake. Thus, a prison
sentence for a rehabilitated man can, and in this case
does, serve those broader purposes. In sum, I agree with
the government that the “goal of deterrence will ring
hollow if a person who stole a car and robbed three banks
is given probation.”[fn111]
While “the United States concedes that the defendant
appears to have stayed away from drug and criminal activity
which does reflect a change in attitude,”[fn112] the
government also argues that if a departure is given for
unusual post-offense rehabilitation, it should only be
minimal. Beyond suggesting that I should not depart at all
for post-offense rehabilitation, the government gives me
little or no help in determining the proper extent of a
departure should I find that such a departure is Page 31
warranted. With that lack of help in mind, suffice it to
say that I respectfully disagree with the government’s
minimalist views.[fn113]
III. CONCLUSION
Realizing that the defendant has served 35 months in state
prison for a part of his crime spree, and considering that
the federal government waited to prosecute him for the
remainder of the spree until he got out of state prison, I
will likely impose an additional 24 months in prison to
account for his federal crimes even though the defendant
has been rehabilitated. Before I finally decide, the
parties will be given the opportunity to convince me
otherwise.
IT IS ORDERED that my tentative findings are that a
24-month prison sentence is appropriate. Oral objections to
these tentative findings can be made at the time of
sentencing. Unless the parties wish to present new evidence
or assert new legal authority, written objections are not
required. If written objections are required, such
objections shall be submitted by the close of business on
Thursday, December 21, 2006. Any written objections shall
detail the new evidence or new legal authority that will be
relied upon. Written objections shall also estimate the
time required to present this new information at the
sentencing hearing.
[fn1] Filing 57 (transcript).
[fn2] Filings 59 & 62.
[fn3] The original presentence report, a supplemental report
on why the government’s prosecution of the defendant was
delayed, and the second revised presentence report were all
prepared by Michael R. Norton, a Supervising United States
Probation Officer. Mr. Norton is also responsible for
overseeing the work of all the other presentence report
writers in our district. He is a Guidelines expert. He is
also a person of uncommon ability and judgment. As an
aside, Mr. Norton is not noted for being a “bleeding
heart,” and neither am I. See, e.g., The Philip D. Reed
Lecture Series Panel Discussion, Federal Sentencing Under
“Advisory” Guidelines: Observations by District Judges, 75
Fordham L. Rev. 1 (2006) (Hon. Lynn S. Adelman, Judge,
Eastern District of Wisconsin; Hon. Nancy Gertner, Judge,
District of Massachusetts; Hon. Richard G. Kopf, Judge,
District of Nebraska; Hon. Gerard E. Lynch, Judge, Southern
District of New York; Hon. Gregory A. Presnell, Judge,
Middle District of Florida; and Moderator, Daniel J. Capra,
Philip D. Reed Professor of Law, discussing the proper
approach to sentencing under advisory Guidelines).
[fn4] 2nd PSR ¶¶ 37, 41, 51, 54, 56, 58 (value
of stolen vehicle).
[fn5] As I have written elsewhere, I am not a fan of using
the “parsimony” provision of 18 U.S.C. § 3553 as an
excuse to do something different than what is called for by
the Guidelines. Almost always, the Guidelines, without
departure or variance, provide the proper sentence. This is
one of the unusual cases where that is not so, but I do not
hang my hat on the “parsimony” provision.
[fn6] 2nd PSR ¶ 133, at 28.
[fn7] Filings 69 & 70.
[fn8] I take judicial notice for the purposes of evidence of
the facts stated in the 2nd PSR.
[fn15] According to the government, “Gochenour passed a
polygraph allowing law enforcement to believe the handgun
used was likely a toy gun.” 2nd PSR ¶ 15.
[fn16] 2nd PSR ¶ 11. Despite the fact that the gun
was a toy, the defendant received a three-level increase
for use of this mock weapon. 2nd PSR ¶¶ 28,
36, 44.
[fn17] 2nd PSR ¶ 37. Even though the car was later
recovered undamaged and Gochenour dropped the $7,361 he
stole, and that money was recovered within yards of the
bank, Gochenour’s base offense level was increased by one
because the intended loss (the money plus the car) exceeded
$10,000.
[fn18] 2nd PSR ¶¶ 12, 17. This sum is the
total restitution that the defendant owes in this case.
[fn19] 2nd PSR ¶¶ 13-14.
[fn20] 2nd PSR ¶ 69. I must confess that I have an
unnatural affection for IHOP pancakes.
[fn21] 2nd PSR ¶¶ 15, 69.
[fn22] Court’s Exhibit 1.
[fn23] 2nd PSR ¶¶ 18-20, 69.
[fn24] 2nd PSR ¶¶ 18-20, 69.
[fn25] 2nd PSR at 2. He is now 39 years of age.
[fn26] Filing 57, at 20.
[fn27] 2nd PSR ¶ 83.
[fn28] 2nd PSR ¶ 88.
[fn29] 2nd PSR ¶ 83.
[fn30] 2nd PSR ¶ 91.
[fn31] 2nd PSR ¶ 97.
[fn32] 2nd PSR ¶¶ 64-65.
[fn33] 2nd PSR ¶ 74.
[fn34] Filing 57, at 21-22. I found Clay to be unusually
credible. Clay would not tolerate his brother’s drug abuse.
In fact, he turned his brother in to the police. 2 nd PSR
¶ 75.
[fn35] Filing 57, at 21.
[fn36] Filing 57, at 21.
[fn37] 2nd PSR ¶ 75.
[fn38] 2nd PSR ¶ 92.
[fn39] 2nd PSR ¶ 86.
[fn40] 2nd PSR ¶ 75.
[fn41] 2nd PSR ¶ 68.
[fn42] 2nd PSR ¶ 67; Filing 57, at 8.
[fn43] 2nd PSR ¶ 68; Filing 57, at 9.
[fn44] 2nd PSR ¶ 65.
[fn45] 2nd PSR ¶ 66.
[fn46] 2nd PSR ¶ 67.
[fn47] 2nd PSR ¶ 68.
[fn48] Filing 57, at 9.
[fn49] 2nd PSR ¶¶ 11-13.
[fn50] 2nd PSR ¶ 69.
[fn51] 2nd PSR ¶ 99.
[fn52] 2nd PSR ¶ 124.
[fn53] Court’s Exhibit 1.
[fn54] 2nd PSR ¶ 2.
[fn55] 2nd PSR at 1.
[fn56] 2nd PSR ¶¶ 5-7.
[fn57] 2nd PSR ¶¶ 122-133.
[fn58] 2nd PSR ¶ 132.
[fn59] 2nd PSR ¶ 132. The probation office carefully
studied and discussed many of the cases from the Eighth
Circuit relative to “post-offense rehabilitation.” Those
cases include United States v. Rogers, 400 F.3d 640 (8th
Cir. 2005), cert. denied, 126 S. Ct. 1020 (2006); United
States v. Willey, 350 F.3d 736 (8th Cir. 2003); United
States v. Patterson, 315 F.3d 1044 (8th Cir. 2003); United
States v. DeShon, 183 F.3d 888 (8th Cir. 1999); and United
States v. Kapitzke, 130 F.3d 820 (8th Cir. 1997).
[fn86] For a recent discussion of the principles that
properly inform a departure such as this where the career
offender category is involved, see United States v.
Feemster, 435 F.3d 881, 883 (8th Cir. 2006) (remanding for
clarification of reasons for departure, but emphasizing
that “the guidelines themselves have recognized that the
career offender enhancement can often result in a gross
overstatement of a defendant’s criminal history”) (citing
U.S.S.G. § 4A1.3(b)(3), United States v. Greger, 339
F.3d 666, 671 (8th Cir. 2003) & United States v. Hutman,
339 F.3d 773, 775-77 (8th Cir. 2003)).
[fn87] The defendant received six points for the two
burglaries and three points for committing the instant
offense while on parole for, and less than two years after
being released from prison on, the second burglary. See 2nd
PSR ¶¶ 67-68, 72-73.
[fn88] See 2nd PSR ¶¶ 59, 67-68, 72-73.
[fn89] Filing 57, at 8; 2nd PSR ¶ 67. He pawned the
TV for crack.
[fn90] Filing 57, at 9. He took two keyboards and an
amplifier and pawned them for money to buy crack. 2nd PSR
¶ 68.
[fn91] The government’s able counsel orally conceded that
these offenses were “not your standard burglar[ies].”
Filing 57, at 56-57. Again, in its brief, the government
reiterated that it “does not take much exception” to the
description that these crimes were “burglaries in name
only.” Filing 69, at 3. Government’s counsel also did not
“contest[]” that there was “sufficient reason” to “drop
down those levels of the career offender [designation].”
Filing 57, at 57-58. Nevertheless, the government objects
to any departure for overstatement of criminal history. I
respectfully conclude that the government’s objection lacks
merit. The defendant has a very bad criminal history, but
these two “burglaries” should not be used to catapult him
into the category reserved for the worst of the worst
(category VI).
[fn92] 2nd PSR ¶¶ 50-56 (multiple count
adjustment) & ¶ 123, at 25 & note (explanation).
After considering all of the factors in U.S.S.G. §
4A1.3(b), I find and conclude that the defendant should be
held accountable for 5 points rather than 9 points for
these burglaries. Using this analysis, the defendant’s
point score would be 12 rather than 16 and his criminal
history category would thus be V.
[fn93] See U.S.S.G. § 5G1.3(c) & n. 3.
[fn94] See, e.g., United States v. Martinez-Salazar, 318 F.
Supp. 2d 127, 130-131 (S.D.N.Y. 2004) (Lynch, J.) (granting
departure; holding that sentencing court is permitted to
depart downward from Guideline sentence where the delay in
prosecuting a state prisoner for a federal crime is longer
than a reasonable period to conduct a diligent
investigation and the sentencing court concludes that a
concurrent sentence would otherwise be in order; “That is,
the Government, by waiting to charge or acquire custody
over the defendant until his state sentence is nearly
expired, can render the question of concurrent sentences
moot, and defeat the Court’s power, granted by the
guidelines, to decide that question.”).
[fn95] Pursuant to an earlier order, I directed Mr. Norton
to investigate the reason for the delay. He completed that
investigation and on July 26, 2005, advised me as follows:
Mr. Gochenour was arrested by Omaha Police on June 22,
2001, on traffic charges and a state parole violation
warrant. Subsequently, a crime stoppers tip identified him
as the suspect in a string of robberies, the most recent
of which was the IHOP robbery. Prosecution on this robbery
was immediately pursued by the Douglas County Attorney’s
Office in Omaha. Essentially, there are three reasons for
delay of the federal prosecution: 1) the catastrophe of
911 occurred, causing the FBI to shift their primary focus
from domestic crime to terrorist activities; 2) shortly
after 911, the FBI learned of Mr. Gochenour’s 3-5 year
sentence to state prison for the IHOP robbery; and 3) the
agent originally assigned to the defendant’s case, A.J.
Greer, was transferred to Miami, causing delay during the
transition to the newly assigned agent, Chuck Bohling.
Special Agent Bohling reportedly began working the case in
June 2003 and submitted his report to the U.S. Attorney in
late 2003/early 2004. Mr. Gochenour was indicted in April
2004.
Court’s Exhibit 1.
[fn96] 2nd PSR ¶ 123, at 25 & note. This range
assumes a criminal history category of V. That calculation
holds the defendant responsible for, and assesses three
points regarding, the IHOP robbery.
[fn97] Note also that even with a reduction of 35 months,
the IHOP robbery is still counted for criminal history
purposes in the Category V designation. That criminal
history in part drives the 75- to 102-month range.
[fn98] In its brief, the government states that the “United
States has previously suggested the Court could give the
defendant credit for time served on a state robbery
sentence in order to put him into the same shoes he would
have been in had the government filed the instant charges
at an earlier time. . . . The United States does not
retreat from that position.” Filing 69, at 2. Despite this
concession, the government thinks the credit should be less
than the total of 35 months. Again, I respectfully
disagree. The government deprived me of the opportunity to
exercise my discretion pursuant to U.S.S.G. §
5G1.3(c) & n. 3. For example, I note that the defendant
received a three-level increase for use of a toy gun. 2nd
PSR ¶¶ 28, 36, 44. Had I been given the
opportunity, I would have considered this somewhat
artificial inflation of the advisory Guidelines in deciding
whether the incremental punishment referred to in the
Guidelines would be satisfied by a concurrent sentence.
Because of what the government did, I was deprived of that
opportunity. The government must therefore shoulder the
doubt created by its late prosecution and the difficulty
caused by trying to determine what might have been had the
prosecution been timely. Knowing what I know now, a fully
concurrent sentence would have been appropriate and I would
have imposed such a sentence.
[fn99] Rogers, 400 F.3d at 641 (reversing departure sentence
to probation and holding that defendant did not establish
extraordinary or atypical rehabilitation as required to
justify downward departure) (quoting 18 U.S.C. §
3553(b) and citing U.S.S.G. § 5K2.0(a)(3)).
[fn100] Id. at 641-42 (citing § 5K2.0(d)(2) & United
States v. DeShon, 183 F.3d 888, 889 (8th Cir. 1999)).
[fn101] Id. at 642 (citing 18 U.S.C. § 3553(c)(2)).
[fn102] United States v. Lazenby, 439 F.3d 928, 930, 932-33
(8th Cir. 2006) (in a drug conspiracy case, one defendant’s
post-offense behavior (caring for her son on weekends,
attending meetings of a “Moms Off Meth” support group,
passing post-arrest drug tests, and becoming a valued and
trusted employee) was characterized by the Court of Appeals
as “significant post-offense rehabilitative conduct” that
was “relevant in evaluating the § 3553(a) factors”).
However, and despite the fact that the defendant’s
“post-offense rehabilitation [was] dramatic and hopefully
permanent,” the Court of Appeals thought the extent of the
variance (departure) (from 70 months to 12 months) was too
much, particularly in light of the co-defendant’s much
higher sentence. Id. at 933. Accordingly, the court
reversed and remanded for resentencing.
[fn103] Filing 57, at 55 (The Court: “[Counsel], you don’t
have many circumstances like this one. . . . I’ve seen this
twice. Have you seen it more than that?” Government’s
Counsel: “No. I’m — and I think it’s unusual that
that happens.”)
[fn104] Lazenby, 439 F.3d at 932 (“`Sentences varying from
the guidelines range . . . are reasonable so long as the
judge offers appropriate justification under the factors
specified in 18 U.S.C. § 3553(a).'” (citation
omitted)). Insofar as the extent of the divergence is
concerned, whether a judge “departs” or “varies” due to
post-offense rehabilitation does not appear to matter. That
is, the focus appears to be the same no matter the
nomenclature. In either case (“departure” or “variance”),
the relevant question may be stated as follows: Is the
lesser sentence imposed due to atypical post-offense
rehabilitation consistent with section 3553(a)? In
answering this question, the degree of the sentence
reduction matters a very great deal. “`How compelling [the]
justification must be is proportional to the extent of the
difference between the advisory range and the sentence
imposed.'” Id. (citation omitted). In simple words, the
bigger the break, the better the justification.
[fn105] The sentencing factors are found at 18 U.S.C.
§ 3553(a). I concentrate mainly on 18 U.S.C.
§ 3553(a)(1), § 3553(a)(2)(A)-(D), §
3553(a)(4), and § 3553(a)(6), although I have
considered all the other factors.
[fn106] 2nd PSR ¶ 133.
[fn107] 2nd PSR ¶ 133. According to the probation
officer, a 24-month prison sentence “will also afford him
adequate time to complete the 500 hour RDAP program through
the Bureau of Prisons.”
[fn108] In 2005, I sentenced 240 people.
[fn109] United States v. Wehrbein, 61 F. Supp. 2d 958 (D.
Neb. 1999) (departing to probation in a drug case, where
the government knowingly waited to federally prosecute the
defendant until he had served his state sentence for
related crimes and where another prison sentence would
seriously harm the defendant’s disabled child by depriving
that child of the irreplaceable assistance of the
defendant).
[fn110] Before I received the second presentence report, I
was inclined to think that a 24-month sentence was
appropriate. I did not disclose my thoughts to the
probation officer. Thus, I take comfort in the fact that an
experienced probation officer independently arrived at a
24-month sentence as the appropriate disposition.
[fn111] Filing 69, at 12.
[fn112] Filing 69, at 10.
[fn113] I wonder why the government does not adopt this
“penny-pinching” attitude when frequently recommending a 50
percent or greater departure for cooperation.