UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

v. 07-CR-189-02-GZS

JASON GERHARD

GOVERNMENT’S NOTICE TO SEEK AN UPWARD DEPARTURE

AND A DEVIATION FROM THE SENTENCING GUIDELINES

As required by Local Rule 32.1(i), the United States

respectfully submits that (a) an upward departure from the

otherwise applicable guideline sentencing range, pursuant

U.S.S.G. §§5K2.6 and/or 5K2.7, and/or (b) an upward deviation

from the otherwise applicable guideline range, pursuant to Booker

v. United States, 543 U.S. 220 (2005)(sentencing guideline ranges

should be advisory, not mandatory, striking 18 U.S.C. §§

3553(b)(1), 3742(e)), is warranted in this case.

Offense Conduct

As the court is aware, the offenses of conviction relate to

conduct by which the defendant and other people delivered

numerous handguns, rifles and assault weapons to the residence of

two notorious fugitives from justice, Edward and Elaine Brown. 

The defendant and his co-conspirators also assembled numerous

pipe bombs and other explosive devices on the Browns’ property,

all with an intent to use those items to kill any law enforcement

officer who attempted to arrest the Browns.

For his contributions to that effort, a jury found the

defendant guilty of conspiring to prevent officers of the United
1The government has filed an objection to the probation officer’s

determination that U.S.S.G. §2A2.4 should be applied to Pseudo Count

2A.

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States from discharging their duties, in violation 18 U.S.C. §372

(Count One); conspiring to (a) assault, resist or impede officers

of the United States, and (b) to be accessories after the fact,

in violation of 18 U.S.C. §§371, 111(a)(3) and 3 (Count Two);

being an accessory after the fact, in violation of 18 U.S.C. §3

(Count Three); and carrying, using and possessing a firearm in

connection with a crime of violence, in violation of 18 U.S.C.

§924(c)(1)(A) (Count Four).

Application of the United States Sentencing Guidelines

According to the pre-sentence report (“PSR”), the

defendant’s total offense level for Counts One, Two and Three,

25, and his criminal history category, I, yields a guideline

sentencing range of 57 to 71 months. The court is also required

to impose a consecutive sentence of at least five (5) years for

the Count Four offense.1

Upward Departures

Under U.S.S.G. § 5K2.0(a) the Court may grant an upward

departure based on aggravating circumstances of a kind or to a

degree not adequately taken into consideration by the

Sentencing Commission in formulating the federal sentencing

guidelines.
2In its entirety, U.S.S.G. §5K2.6 states:

If a weapon or dangerous instrument was used or

possessed in the commission of the offense the court may

increase the sentence above the authorized guideline range. 

The extent of the increase ordinarily should depend on the

dangerousness of the weapon, the manner in which it was

used, and the extent to which its use endangered others.

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In this regard, U.S.S.G. §5K2.6 provides that an upward

departure may be imposed “if a weapon or dangerous instrument

was used or possessed in the commission of the offense.”2

The court should upwardly depart on that basis in this

case because the offenses clearly “involved the use of semiautomatic assault weapons and numerous explosive devices. The

explosive devices were displayed in a threatening manner and

were used to prevent authorities from entering the Browns’

property and the potential for serious injury and/or death was

apparent.” PSR ¶105 (noting facts that may warrant an upward

departure under §5K2.6).

The government may also contend that the offenses of

conviction in this case directly caused a significant

disruption of the important services provided by the United

States Marshal’s Service and, therefore, an upward departure

pursuant to U.S.S.G. §5K2.7 is warranted. However, the

government may seek an upward departure on that basis only if
3Section 5K2.7 provides:

If the defendant’s conduct resulted in a significant

disruption of a governmental function, the court may

increase the sentence above the authorized guideline range

to reflect the nature and extent of the disruption and the

importance of the governmental function affected. Departure

from the guidelines ordinarily will not be justified when

the offense of conviction is an offense such as bribery or

obstruction of justice; in such cases interference with a

government function is inherent in the offense, and unless

circumstances are unusual the guidelines will reflect the

appropriate punishment for such interference.

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the court does not apply the obstruction of justice guideline,

U.S.S.G. §2J1.2, to the Count One and Count Three offenses.3

Booker Variance

As the court is aware, in Booker the Supreme Court

determined that the sentencing guidelines are advisory, not

mandatory, and that district courts must consider the

following factors, among others, when imposing a sentence:

(1) the nature and circumstance of the offense

and the history and characteristics of the

defendant;

(2) 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 defendant; and 

(D) to provide the defendant with needed

educational or vocational training, medical care, or
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other correctional treatment in the most effective

manner. 

18 U.S.C. §3553(a)(1)(2)

This case involved coordinated acts, committed over a

substantial period of time by a number of self-aggrandizing

individuals who, among other things, obtained numerous

firearms, assault weapons and explosives devices; and made

direct threats to use the weapons to kill or seriously injure

any law enforcement officer who attempted to arrest Edward and

Elaine Brown.

The defendant was a major contributor to that effort,

which created an extremely dangerous situation that, but for

the patience, professionalism and compassion of the United

States Marshals Service, could have easily resulted in the

deaths of many people.

Only a sentence well in excess of the otherwise

applicable guideline sentencing range will reflect the “nature

and circumstance of the offense, the history and

characteristics of the defendant” (which includes the

possession of another pipe bomb in the bedroom of his

residence) and the seriousness of the offenses of conviction. 

A sentence that substantially deviates from the sentencing

guidelines is also “just” and necessary “to promote respect
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for the law, afford adequate deterrence to criminal conduct

and protect the public from further crimes of the defendant.

Respectfully submitted,

Thomas Colantuono

United States Attorney

July 25, 2008 By: /s/ Arnold A. Huftalen

Arnold Huftalen

Assistant United States Attorney

By: /s/ Robert M. Kinsella

Robert M. Kinsella

Assistant United States Attorney

Certificate of Service

I hereby certify that on July 25, 2008, I caused a copy of

the foregoing to be filed electronically.

/s/ Robert M. Kinsella

Robert M. Kinsella

Assistant United States Attorney