United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
30, 2017, defendant Aaron Richardson pled guilty to count
nine, conspiracy to possessing, training, transporting and
delivering an animal for purposes of participating in an
animal fighting venture and aiding and abetting, in violation
of 7 U.S.C. § 2156(b) and 18 U.S.C §§ 49(a)
and 2, and count twenty, possessing animals for the purpose
of participating in an animal fighting venture, in violation
of 7 U.S.C. § 2156(b) and 18 U.S.C. §49(a), of his
indictment. On November 27, 2017, the government moved for an
upward departure at sentencing pursuant to U.S.S.G. §
2E3.1. Defendant appeared before the Court for sentencing on
December 1, 2017, and was notified that the Court
contemplated the possibility of an upward departure.
Defendant was sentenced to a term of 60 months'
imprisonment in the Bureau of ; Prisons on count
nine and 36 months' imprisonment on count twenty, for a
total of 96 months. The Court makes the following findings in
support of its upward variance sentence.
to 18 U.S.C. § 3553(a), a sentencing court has a duty to
"impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in the
[sentencing statute]." Once the defendant's
Guidelines sentencing range has been established, the
sentencing court must decide "whether a sentence within
that range serves the factors set forth in §
3553(a)and, if not, select a sentence within
statutory limits that does serve those factors."
United States v. Tucker, A12> F.3d 556, 560 (4th
Cir. 2007) (internal quotation and citation omitted). After
permitting the parties to argue with regard to sentencing,
the court should "consider all of the § 3553(a)
factors to determine whether they support the sentence
requested by a party." Gall v. United States,
552 U.S. 38, 49-50 (2007). The court must then "make an
individualized assessment based on the facts presented, [and
if it] decides that an outside-Guidelines sentence is
warranted, [it] must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to
support the degree of the variance." Id. at 50.
A sentence that deviates can do so on the basis of a
Guidelines-sanctioned departure, in accordance with the
§ 3553(a) factors, or some other reason. United
States v. Evans, 526 F.3d 155, 164 (4th Cir. 2008). The
"method of deviation from the Guidelines range-whether
by departure or by varying-is irrelevant so long as at least
one rationale is justified and reasonable." United
States v. Diosdado-Star, 630 F.3d 359, 365-66 (4th Cir.
sentencing hearing, the Court found that defendant's
advisory Guidelines range, as calculated by the Probation
Office, was 12-18 months' imprisonment, based on a total
offense level of 13 and a criminal history category of I. The
maximum sentence applicable on either count is five
years' imprisonment. Having considered the Presentence
Investigation Report ("PSPv"), the arguments of
counsel with regard to sentencing, and the factors enumerated
in § 3553(a), the Court finds that a variance sentence
is appropriate in this case.
begin, the Court finds that a departure from the Guidelines
is warranted. Such a departure is appropriate for three
reasons: the scale of defendant's involvement in dog
fighting, the inadequacy of accounting for defendant's
criminal history, and the existence of related uncharged
sentencing guidelines for animal fighting ventures were
updated in 2016 to better account for the cruelty and
violence inherent in participating in such activity. U.S.S.G.
§2E3.1. But the guidelines do not distinguish between
different categories of offenders. Specifically, the
guidelines do not differentiate between those offenders who
engage in animal fighting once or twice and those who offend
repeatedly over a long period of time. Because of this, the
guidelines specifically account for the possibility of an
upward departure for those offenses involving extraordinary
cruelty or on an exceptional scale.
scale of defendant's involvement in dog fighting was
striking. According to the ASPCA, a typical offender is
someone who attends animal fights occasionally and has one or
two dogs or a few roosters, who are used for fighting a few
times a year. The evidence here shows that defendant is not
typical. 32 pit bulls were found on defendant's property.
The animals were scarred and wounded, with worn teeth and
other signs of fighting. They were malnourished and
underweight. One dog was missing a leg. Many of the dogs had
to be euthanized. Defendant also had large amounts of dog
fighting paraphernalia and training supplies, including
treadmills, break sticks, veterinary supplies, steroids,
heavy collars, and training chains, some weighing more than
the dogs themselves. Defendant regularly attended dog fights
and was heavily involved in breeding fighting dogs, even
driving a van full of dogs from a breeder in Oklahoma. It is
clear that dog fighting was an enterprise in which he
invested significant time and money, working to expand the
reach of dog fighting in this district. Because of the scale
of his involvement, an upward departure is appropriate.
the criminal history calculation as determined by the
sentencing guidelines is inadequate here. The Sentencing
Commission was prepared for this possibility, and provided
for upward departures when a defendant's criminal history
category "substantially under represents the seriousness
of the defendant's criminal history or the likelihood
that the defendant will commit other crimes." U.S.S.G.
prior sentences were not used in calculating the category is
relevant to this inquiry. Of defendant's 31 adult
criminal convictions, only one was scored for the purposes of
determining his criminal history category. This means
defendant has five unscored adult felonies. The volume and
regularity of his criminal activity, including the number of
offenses committed while on probation, is evidence that he,
does not have respect for the law and is likely to continue
to commit crimes. Therefore, the Court finds that his
criminal history category is under representative and an
upward departure is warranted.
defendant's uncharged conduct merits a departure.
According to the Sentencing Guidelines, underlying conduct
that was not used for the purpose of determining the
guideline range may be considered. § 5K2.21. Throughout
the investigation that lead to defendant's arrest and
guilty plea, the government discovered evidence of
defendant's involvement in selling drugs. Specifically,
evidence detailed that defendant was involved in large heroin
deals in 2015 and 2016. This information, which was
incorporated into defendant's PSR and which
defendant's counsel did not challenge, was not used to
charge defendant. Therefore, it is appropriate to consider
defendant's history of drug dealing, which supports
departing upward from defendant's guidelines range.
§ 3553(a) factors also militate in favor of an upward
variance in this case. Dog fighting is a cruel enterprise,
and defendant was deeply involved in it. Dog fights are
brutal and drawn out: dogs sustain significant injuries and
sometimes are put down after the fight. The dogs'
suffering is not limited to the actual fight: dogs are
trained to be aggressive and antagonistic, are kept under
appalling conditions, and receive inadequate care. These
offenses are serious and the sentence should match them.
Additionally, defendant's character indicates that a
higher sentence is warranted. He was first cited for cruelty
to animals in 2004, more than twelve years ago. His lengthy
criminal history and the flagrancy of his participation in
dog fighting show both his lack of respect for the law and
his likelihood to continue committing crimes. A variant
sentence is necessary to provide adequate punishment and
a sentence within the Guidelines range would be insufficient
to adequately serve the § 3553(a) factors and the
purposes of the sentencing statute. After considering
defendant's individual circumstances and the facts of
this case, the Court holds that a variance sentence of 60
months' imprisonment on count nine and 36 months'
imprisonment on count twenty is appropriate and reasonable in
this matter. This Court also imposes a term of three
years' supervised release, on the condition that
defendant not engage in any activity related in any fashion
to dog fighting, or owning, harboring, possessing or caring
for any dog without the approval of the Probation Office.