State v. O'BRIEN

IRVINE, Acting Judge

(dissenting).

I respectfully dissent.

I think that O’Brien has a point when he suggests that the transactions with the Campbells should be charged as one count instead of four, which when “Hernandized” resulted in a total of six counts with a double departure upward on the sixth count, totalling 82 months.

Aggravating factors which may be considered to determine whether to depart du-rationally are:

*298(4) The offense was a major economic offense;
(a) The offense involved multiple victims or multiple incidents per victim;
(b) The offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss specified in the statute;
(c) The offense involved a high degree of sophistication or planning or occurred over a lengthy period of time.

Sentencing Guidelines II.D.103.2.b. When the Campbell, Kruger and bank offenses are considered together, there is no doubt that all of the above apply, but when the Campbell offenses are considered alone, the only one that applies is the large amount of money. In reality, there was only one victim, Willmet Campbell, who furnished all of the money, and the transactions took place over a relatively short period of time. I think they should have been charged in one count, as were the offenses in the charge involving Kruger. Under Hernandez, this would result in concurrent sentences of 18 months, 21 months and 25 months, and with a double durational departure at the end, a total of 50 months. This is still more than “a slap on the wrist,” and would give O’Brien sufficient time to contemplate the error of his ways.