United States of America, Plaintiff-appellee, v. Stephanie Lee De Fee, Defendant-appellant, 948 F.2d 1295 (10th Cir. 1991)

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

The text and commentary of Sentencing Guideline § 2X5.1 reads as follows:

Other Offenses

If the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control.

Commentary

Background: Many offenses, especially assimilative crimes, are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline. Nonetheless, the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. The court is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous. Where there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) control. That statute provides in relevant part as follows: "In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in [18 U.S.C. § 3553] subsection (a) (2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission."

The presentence report prepared by the probation office calculated a base offense level using the guideline applicable to possession of phenylacetone. The district court rejected that guideline as sufficiently analogous for two reasons. First, the district court refused to assume, as the presentence report did, that phenylacetic acid could be used to manufacture phenylacetone, because such an assumption had not been established by a preponderance of the evidence in the proceeding against Defendant. R. Vol. I Doc. 3 at 2. Further, in order to analogize the phenylacetone guideline, the amount of phenylacetone which could be produced from a certain amount of phenylacetic acid would have to be determined. The presentence report made such a determination by assuming that the manufacturing process produced an average yield of 60 percent. The district court refused to make that assumption because there was no evidence of manufacturing yield presented in the proceeding against Defendant. Id

18 U.S.C. § 3553(a) (2) requires the sentencing court to consider the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

The parties to this appeal do not dispute the district court's ruling that the sentencing guidelines do not apply in this case. Br. of Appellee at 10; Br. of Appellant at 9

18 U.S.C. § 3742(e) (4) states as follows:

(e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.