|  The Presentence Report (the "PSR") prepared in this case notes that "[t]he Court may conclude that the defendantās Criminal History Category significantly over-represents the seriousness of her criminal history, and therefore consider a downward departure from the guidelines." See PSR at ¦79. Indeed, Ms. XXXX has been placed in Criminal History Category III as a result of one shoplifting case and two cases involving liquor law violations where Ms. XXXX was convicted of serving undercover officers alcohol after-hours after having been ordered to do so by her employer. Id. at ¦¦33-35.
U.S.S.G. ¤ 4A1.3, in fact, recognizes that "[t]here may be cases where the Court concludes that a defendantās criminal history category over-represents the seriousness of a defendantās criminal history." Moreover, this section has been utilized by numerous courts. See, e.g., United States v. Summer, 893 F.2d 63-67-68 (4th Cir. 1990) (District Court did not act unreasonably in excluding three driving with suspended license convictions from a defendantās criminal history score); United States v. Anderson, 955 F. Supp. 935, 937 (N.D. Ill. 1997) (Defendant had drunk driving and domestic battery conviction. "Taking all of the relevant factors into consideration, and comparing Andersonās criminal history to that of other defendants sentenced by the Court over the years, the Court concludes that criminal history category III significantly over-represents the seriousness of Andersonās criminal history."); United States v. Hughes, 825 F. Supp. 866, 869 (D. Minn. 1993) (Court reduced criminal history category from II to I for defendant with two misdemeanor convictions); United States v. Baker, 804 F. Supp. 19, 22 (N.D. Cal. 1992) (Criminal history category of III reduced to I for defendant previously convicted of providing false information to a police officer and grand theft auto). This Court has obviously encountered numerous defendants falling within each of the six criminal history categories. The question that now confronts the Court is whether, given its experience, Ms. XXXXās criminal history is typical of the type of criminal history that category III offenders normally possess. Counselās experience indicates that it is not. By downward departing to criminal history category I, or even category II, this court would implement the Sentencing Commissionās recognition that, in some cases, a defendant criminal history category truly does over-represent the seriousness of his or her criminal history and, therefore, that such a defendant should be treated differently than the "typical" defendant falling into that criminal history category. WHEREFORE, Marie XXXX respectfully requests this Court to depart downward to criminal history category I or I. |