367 F.Supp.2d 1 (2005) | Cited 0 times | D. Maine | May 3, 2005


Steven Colby and Teenia Colby, husband and wife, committed thesame crime, but because of the dates of their sentencings, StevenColby now faces years in prison, while Teenia Colby has completedher one month incarceration. Sentenced without any enhancementsin the fog between Blakely1 and Booker,2Teenia Colby received a prison term of one month, three yearssupervised release, the first seven months to be served in homeconfinement. Awaiting sentencing with full enhancements in thelight of Booker, Steven Colby faces a Guideline range ofsentence between thirty-seven and forty-six months. FollowingJudge Hornby's lead in United States v. Revock,353 F. Supp. 2d 127, 129 (D. Me. 2005), this Court concludes the disparity factorof 18 U.S.C. § 3553(a) requires a statutory sentence outside theGuideline range for Mr. Colby, because he and his wife wereengaged in joint criminal behavior and Ms. Colby — sentencedbetween Blakely and Booker without an appeal of sentence —received the benefit of this District's post-Blakely approach,while Mr. Colby sentenced after Booker, would not otherwisereceive the same benefit. I. FACTS AND PROCEDURAL BACKGROUND

A. Steven and Teenia Colby

Steven and Teenia Colby share much in common. Married with twodaughters and living in Maine, Teenia and Steven Colby were eachconvicted on April, 1990 in Hancock County Superior Court for thestate of Maine of Trafficking in a Schedule Z Drug,Marijuana.3 These convictions prevent both Mr. and Ms.Colby from possessing firearms. Despite the law, FirearmsTransaction Records reveal that Ms. Colby continued on asurprisingly regular basis to purchase firearms from local retailmerchants, beginning 1997. In early 2003, after neighbors heardgun shots emanating from the Colby property, they alerted localpolice, because they were aware neither Colby was supposed tohave a firearm. On February 13, 2003, pursuant to a warrant, thepolice searched the Colby home and found five firearms, rangingfrom a .22 caliber rifle to a North China SKS 39m rifle. Ms.Colby admitted her purchases and possession; Mr. Colby made nopurchases, but admitted possession. Even though he had not firedthe firearms, he acknowledged he had instructed his wife on theiruse.

B. Teenia Colby's Case and Sentence

By Information dated December 15, 2003, the Government chargedMs. Colby with being a felon in possession of firearms, aviolation of 18 U.S.C. § 922(g)(1). Ms. Colby pleaded guilty onJanuary 4, 2004 and she was sentenced on September 15, 2004 afterthe United States Supreme Court's ruling in Blakely. ThePresentence Investigation Report (PSR) found Ms. Colby's totaloffense level was twenty; it imposed a three level increase sincethe instant offense involved between eight and twelvefirearms;4 and, after granting a three-level reductionfor acceptance of responsibility; it calculated a total offense levelof twenty. With a criminal history category of I, the Guidelinerange of sentence was between thirty-three and forty-one monthsimprisonment.5 After Blakely, but before Booker, thisDistrict required facts supporting Guideline enhancements eitheradmitted by the defendant or proven to a jury beyond a reasonabledoubt. Stripped of enhancements, Ms. Colby received a sentencesubstantially lower than the applicable Guideline range, spendingonly one month in prison and seven months in home detention.

C. Steven Colby's Case and Guideline Sentence

By Indictment dated March 9, 2004, the Government chargedSteven Colby with being a felon in possession of a firearm, aviolation of 18 U.S.C. § 922(g)(1). Mr. Colby pleaded guilty tothe charged offense on October 20, 2004.6 Mr. Colby's PSRwas completed on January 12, 2005 and revised on February 18,2005. The Report essentially tracked Ms. Colby's, arriving at atotal offense level of twenty. With a criminal history categoryII, Mr. Colby's Guideline range for incarceration falls betweenthirty-seven to forty-six months.7

D. Teenia and Steven Colby: A Comparison

Despite their striking similarities, there are differencesbetween Teenia and Steven Colby. First, because Ms. Colby'scriminal history category was Category I and Mr. Colby's isCategory II, Mr. Colby faces a slightly higher sentencing range.This is because when they trafficked in marijuana in 1990, Mr.Colby packed a firearm and Ms. Colby did not. He, therefore,received a firearms enhancement and a prison term and she didnot. His prior possession of a firearm during the commission of a drug trafficking offense could justifya higher sentence this time as well, especially because thecurrent offense is a firearms offense.

Mr. Colby's complicity in this crime, however, is markedly lessthan his wife's. Ms. Colby made each of the firearms purchasesfrom 1997 onward; Mr. Colby purchased no firearms. Further, Mr.and Mrs. Colby had been separated since 2000 and therefore, atthe time of many of Ms. Colby's firearms purchases and at thetime of the search, Mr. Colby was not actually living in theColby home in Franklin. He was instead living in Bar Harbor,Maine with his father. Ms. Colby was living with one of theirdaughters in the residence where the firearms were found. Theregularity of his visits to the Colby home in Franklin and hisinstructing his wife on the use of the firearms were sufficientto constitute constructive possession, but his actual possessionwas neither alleged nor established.

In all other respects relevant to sentencing, they arevirtually indistinguishable. They grew up in the same area ofMaine and, in fact, have known each other since age fourteen.They have been married since 1982. Ms. Colby is better educated,completing two years of college; whereas, Mr. Colby dropped outof school in the ninth grade, and Ms. Colby has worked morerecently. Although Mr. Colby contends with a more impressivearray of medical and psychological problems, they have eachreceived social security disability benefits. They present asimilar history of substance abuse and have similar, though notidentical, criminal records and they responded in similar ways tothe pending charges.


A. The Guideline Sentence

Booker instructs sentencing courts to "consult [the]Guidelines and take them into account when sentencing." Booker,125 S. Ct. at 767. Consulting the Guidelines and applying them to Mr. Colby's case, the inescapable result is that Mr.Colby would be sentenced under the Guidelines to a significantlyharsher sentence than Ms. Colby received.8 The Defendanthas not filed a motion for downward departure and this Court isunaware of any Guideline provision that would justify a sentenceoutside the Guideline range of thirty seven to forty six months.See United States v. Thurston, 358 F.3d 51, 78 (1st Cir. 2004)(". . . basing the departure on grounds of disparity in sentencealone between Thurston and Isola was beyond the district court'sauthority."), vacated and remanded on other grounds, ___ U.S. ___,125 S. Ct. 984 (2005); United States v. Wogan, 938 F.2d 1446,1449 (1st Cir. 1991).

B. The Statutory Sentence

Once the sentencing court has taken the Guidelines intoaccount, it is required to assess whether the Guideline sentencemeets the sentencing goals set forth in 18 U.S.C. § 3553(a).Booker, 125 S. Ct. at 764. The Act "requires judges toconsider the Guidelines `sentencing range established for . . .the applicable category of offense committed by the applicablecategory of defendant,' § 3553(a)(4), the pertinent SentencingCommission policy statements, the need to avoid unwarrantedsentencing disparities, and the need to provide restitution tovictims (citations omitted).'" Id. at 764-65 (emphasessupplied). Unlike the Guidelines, the statute expressly providesthat the sentencing court "shall consider . . . the need to avoidunwarranted sentence disparities among defendants with similarrecords who have been found guilty of similar conduct."18 U.S.C. § 3553(a)(6). Under Booker, the sentencing court is not merelyfree to consider, it must consider a factor impermissible underthe Guidelines: whether the Guideline sentence would perpetrate"unwarranted sentencing disparities." 18 U.S.C. § 3553(a)(6). In making this assessment, this Court is unable to distinguishthe facts in Colby from the facts in Revock and it concursfully with Judge Hornby's thoughtful analysis in Revock. JudgeHornby specifically limited application of the disparity factorof section 3553(a) to

. . . a very narrow category of cases. It applies to defendants with similar records who engaged in joint criminal behavior where one participant — sentenced between Blakely and Booker without an appeal of the sentence — received the benefit of this District's post-Blakely approach, while the other participant was sentenced after Booker, without receiving the same benefit.Id. The narrow Revock holding applies with equal force here.


Applying the sentencing factor set forth in18 U.S.C. § 3553(a)(6), this Court imposes a statutory sentence outside theGuideline range on Defendant Steven Colby: one monthincarceration followed by three years supervised release, thefirst seven months to be served in home confinement, and a$100.00 special assessment.


1. Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531(2004).

2. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738(2005).

3. Teenia Colby was convicted on April 2, 1990 of Traffickingin a Schedule Z Drug, a Class C felony; Steven Colby wasconvicted on April 6, 1990 of Aggravated Trafficking in aSchedule Z Drug, a Class B felony. His classification wasenhanced because he carried a firearm during the commission ofthe crime.

4. The PSR counted the firearms she purchased from 1997 onwardplus the firearms in the Colby residence.

5. The Guideline also includes a period of supervised releasebetween two and three years, a fine between $7,500.00 and$75,000.00, and a special assessment of $100.00.

6. It is true that Ms. Colby pleaded guilty within one monthof being charged and Mr. Colby waited seven months beforepleading guilty. If he had pleaded guilty as quickly as his wife,he would likely have been sentenced under the District policiesduring the interregnum. However, the delay was caused primarilyby his counsel's exploration of a motion to suppress and by hismedical condition and this Court does not hold the delay againsthim.

7. He faces the same periods of supervised release, the samefine range, and the same special assessment as Ms. Colby.

8. In Ms. Colby's case, the Government agreed to support areduction under U.S.S.G. § 2K2.1(b); it made no similar agreementwith Mr. Colby. In sentencing Ms. Colby, the Court did not concurwith the application of the sporting use exception and there isno evidence that the exception not applicable to Ms. Colby, wouldbe applicable to Mr. Colby.

Back to top