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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA 

 FORT WAYNE DIVISION

 

UNITED STATES OF AMERICA ) 

 ) 

 v. ) CAUSE NO.: 1:14-CR-16-TLS 

 ) 

HENRY C. PURIFOY, III ) 

OPINION AND ORDER

 The Defendant, Henry C. Purifoy, III, pled guilty to Count 1 of an Indictment, felon in 

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). An officer with the United States 

Probation Office prepared a Presentence Investigation Report (PSR) in anticipation of the 

Defendant’s sentencing. The Defendant objects to certain portions of the PSR, raising one issue: 

whether the Criminal History Category of VI, as determined in the PSR, substantially overrepresents the seriousness of the Defendant’s criminal history. The Defendant has also filed a 

Sentencing Memorandum [ECF No. 37], filed on December 22, 2014, in which the Defendant 

raises the same arguments as his objection and requests that he be sentenced to a term of 

imprisonment of 57 months. The Defendant’s objection to the PSR and request for a downward 

variance is ripe for ruling. 

ANALYSIS

 The Defendant argues that the PSR’s criminal history calculation over-represents the 

seriousness of his criminal history. In particular, the Defendant argues that his criminal history 

calculation should be 12 points, resulting in Criminal History Category V, as opposed to the 

PSR’s calculation of 14 points, resulting in Criminal History Category VI. The Defendant 

contends that two of his prior convictions stem from offenses committed on the same date, same 
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time, same location, and same arrest and therefore should not have been counted separately. The 

Government argues that the PSR correctly counts the two convictions separately because, 

pursuant to U.S.S.G. §4A1.2(a)(2), the convictions have different charging instruments filed on 

different dates as well as different sentencing dates. The Sentencing Guidelines specifically 

provide that “[i]f there is no intervening arrest, prior sentences are counted separately unless (A) 

the sentences results from offenses contained in the same charging instrument; or (B) the 

sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a 

single sentence.” U.S.S.G. §4A1.2(a)(2). Thus, by their explicit terms, the Guidelines require the 

two convictions of the Defendant at issue to be counted separately because they have different 

charging instruments and different sentencing dates. Therefore, the Defendant’s objection to the 

PSR’s calculation of his criminal history will be overruled. 

 When sentencing a defendant, however, the district court “must first calculate the 

Guidelines range, and then consider what sentence is appropriate for the individual defendant in 

light of the statutory sentencing factors, 18 U.S.C. § 3553(a).” Nelson v. United States, 555 U.S. 

350, 351 (2009); see also United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010) (setting 

forth the two-step process that a sentencing court must engage in to determine a defendant’s 

sentence); United States v. Bush, 523 F.3d 727, 729 (7th Cir. 2008) (same). While the 

Defendant’s objection to the PSR lacks merit, the Court must still apply the criteria set forth in § 

3553(a) to the facts and circumstances of the Defendant’s particular case. After considering the § 

3553(a) factors, a court must impose a sentence that is sufficient, but not greater than necessary, 

to satisfy the following purposes of sentencing: just punishment, respect for the law, deterrence, 

protection of the public, and rehabilitation of the defendant. In making this determination, a 

district court may not presume that the guideline sentence is the correct one. Nelson, 555 U.S. at 
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352; Rita v. United States, 551 U.S. 338, 351 (2007). When evaluating the Guidelines 

recommendation, a court may consider whether the Sentencing Commission fulfilled its 

“characteristic institutional role” in adopting the particular guideline, see Kimbrough v. United 

States, 552 U.S. 85, 109 (2007), and the court may reject any guideline on policy grounds, 

United States v. Pape, 601 F.3d 743, 749 (7th Cir. 2010). Ultimately, a court must make an 

independent determination, taking into account the types of sentences available, the other 

relevant § 3553(a) factors, and the arguments of the parties. See Gall v. United States, 552 U.S. 

38, 49–50 (2007). 

 Of particular relevance here is § 3553(a)(1), which requires the Court to consider “the 

nature and circumstances of the offense and the history and characteristics of the defendant.” The 

Court notes the unusual circumstances surrounding the two prior convictions, which were part of 

the same offense conduct occurring on the same date, time, and location when the Defendant was 

arrested. While the Guidelines technically require the two convictions to be counted separately, 

the Court finds that the convictions were part of the same overall offense conduct with respect to 

the Defendant’s criminal history. Although he was convicted of both offenses separately, the 

same criminal conduct provided the basis for each offense. Considering the history and 

characteristics of the Defendant as it pertains to the calculation of his criminal history, the Court 

finds it more appropriate to consider the two convictions together rather than separately because 

each offense came about based on the same course of conduct. 

Therefore, the Court finds that, based on the nature and circumstances of the offense, and 

the history and characteristics of the defendant, as well as all of the purposes of punishment—

including the need to provide just punishment for the offense, to impose a sentence that reflects 

the seriousness of the offense and that promotes respect for the law, to adequately deter future 
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criminal conduct, to protect the public from future crimes of the defendant, and to avoid 

unwarranted disparity in sentencing—the Court finds that a sentence of 57 months of 

imprisonment is sufficient, but not greater than necessary, to comply with the purposes of 

punishment. 

CONCLUSION

 For the foregoing reasons, the Court OVERRULES the Defendant’s objection to the PSR, 

and GRANTS the Defendant’s request for a variance pursuant to 18 U.S.C. § 3553(a). The Court 

finds that a sentence of 57 months of imprisonment is sufficient but not greater than necessary to 

meet the purposes of sentencing in this case and is consistent with the statute. The Sentencing set 

for Thursday, February 12, 2015, at 9:30 AM is CONFIRMED. 

 SO ORDERED on February 9, 2015. 

 s/ Theresa L. Springmann 

 THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT