Opinion
04 CR. 452 (RMB).
August 18, 2005
DECISION AND ORDER
I. Background
On March 25, 2005, Defendant, Kristin Campbell, pled guilty to a one count information charging her with a violation of 18 U.S.C. § 922(a)(6) in that the Defendant knowingly made false statements in connection with firearms purchases. "[O]n three occasions from April 10, 2004 until April 27, 2004, Campbell purchased a total of six Hi-Point .9 millimeter semi-automatic firearms from three different stores in Ohio." Government Letter dated June 10, 2005 at 1. Defendant acknowledged in her guilty plea that she "falsely stated in a form that I filled out in connection with the purchase that I was the actual buyer and was not buying the firearms on behalf of someone else." Transcript of proceedings held on March 25, 2005 at 20:4-6. Prior to her plea, the Government provided the defense with a Pimentel letter, dated March 23, 2005, which projected an offense level of 12; a criminal history category of I; and guidelines range of 10-16 months incarceration under the United States Sentencing Guidelines.
The Presentence Investigation Report ("PSR"), dated June 20, 2005, prepared by the Department of Probation prior to sentencing also calculated the offense level as 12; criminal history category of I; and guidelines range of 10-16 months. Probation recommended a five month term of imprisonment as Defendant's sentence, followed by five months home detention as a special condition of supervised release.
On June 27, 2005, Defendant was sentenced, inter alia, to a five month term of imprisonment; a twenty six month term of supervised release, the first five months of which are to be served in home detention; and a $100.00 special assessment. See Judgment dated June 27, 2005.
On July 22, 2005 the Defendant moved for bond pending appeal pursuant to 18 U.S.C. § 3143(b), arguing that there are "significant" issues on appeal including: (i) whether Defendant should have been granted a role adjustment; (ii) whether the Defendant should have been granted a departure based upon aberrant conduct; (iii) whether the Defendant should have been granted a departure based on lack of criminal intent; and (iv) whether the sentence imposed was unreasonable given all the facts and circumstances, including the Defendant's history and characteristics. The Government opposed the motion by letter, dated July 25, 2005, arguing that the sentence imposed was "in accord with the Sentencing Guidelines and reasonable in light of all of the statutory factors that the Court must consider under Title 18, United States Code, Section 3553(a)." Government Letter dated July 25, 2005 at 2. For the reasons stated below, Defendant's motion is denied in its entirety. II. Legal Standard
Defendant also requests, in the alternative, that the Court grant a one month adjournment of the surrender date, currently set for August 26, 2005.
Under 18 U.S.C. § 3143(b), "the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal . . . be detained," unless the court finds that the defendant is not likely to flee or pose a danger to any other person or the community, and that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. See 18 U.S.C. § 3143(b)(A)(B).
The Government does not argue that the Defendant is likely to flee or pose a danger to the safety of any other person or the community if released; nor does the Government address whether the appeal is for the purpose of delay.
III. Analysis
During the Defendant's guilty plea allocution, Defendant clearly and unequivocally acknowledged her crime: "On or about April of 2004 I purchased approximately six firearms on behalf of another person and falsely stated in a form that I filled out in connection with the purchase that I was the actual buyer and was not buying the firearms on behalf of someone else." Transcript of proceedings held on March 25, 2005 at 20:1-6. And, in fact "[f]ive of those firearms were sold by another co-defendant, Manuel Salazar, to a confidential informant, posing as a gun and drug dealer, working for the Bureau of Alcohol, Tobacco, Firearms and Explosives." Government Letter dated June 10, 2005 at 1. The appropriate sentencing guidelines range for this offense was ten to sixteen months. See PSR dated June 20, 2005;Pimentel letter dated March 23, 2005; and Transcript of proceedings held on June 27, 2005 at 2. In fashioning the sentence, the Court considered all of the factors set forth in 18 U.S.C. § 3553(a). See Transcript of proceedings held on June 27, 2005. (i) Role
The Court found the Defendant fully competent and capable of entering an informed and knowing plea. See Transcript of proceedings held on March 25, 2005 at 21:16-22.
No offense level reduction at sentencing for the Defendant's (minor or minimal) role was appropriate because the Defendant was not "less culpable" than the average person who commits this crime. See U.S.S.G. § 3B1.2 and United States v. Salameh, 261 F.3d 271, 280 (2d Cir. 2001). The Court could not conclude that the Defendant played a minor or minimal role. See Transcript of proceedings held on June 27, 2005 at 21-22 . She had gone to three different stores, on three separate dates, and purchased two firearms at each location. Defendant was required to complete forms prior to purchasing the firearms. One such form asked a series of questions, including question #12a: "Are you the actual buyer of the firearms listed on this form?" Immediately following this question was a written warning: "Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you." Defendant answered "Yes" to this question. The form also stated: "I understand that answering `yes' to question 12a when I am not the actual buyer of the firearm is a crime punishable as a felony . . . I further understand that the repetitive purchase of firearms for the purpose of resale for livelihood and profit without a Federal firearms license is a violation of law." See Exhibit A, attached to Government Letter dated June 10, 2005.
(ii) Alleged Aberrant Conduct
No downward departure was given (or was appropriate) at sentencing for aberrant conduct. See U.S.S.G. § 5K2.20. Among other things, "The decision here to purchase guns was not made on one occasion but on three and also [with] knowingly falsif[ied] firearms purchase forms. The purchases were made over the period of 17 days and there were three at different locations at different venues. And I don't think that the aberrant behavior departure could appropriately be said to apply here." Transcript dated June 27, 2005 at 23:8-14. See also Zecevic v. Parole Commission, 163 F. 3d 731 (2d Cir. 1998) and U.S.S.G. § 5K2.20. (iii) Criminal Intent
"Similarly, there was no basis to depart based on the defendant's lack of criminal intent given that the form that the defendant signed in which she attested that she was not purchasing the firearm on behalf of someone else could not have made clearer the restriction on buying guns on behalf of others, and that lying on the form was a felony." Government Letter dated July 25, 2005 at 2. And, "there is no indication that the court did not recognize its authority to depart" and "[g]iven that the Court here understood its authority to depart, no substantial question will be raised on appeal." Id. at 2,3.
There was no doubt at sentencing of Defendant's criminal intent. "There is no dispute that there was criminal intent, the mens rea for the crime, as we discussed earlier in today's proceeding, otherwise I would not have accepted the plea and counsel I think acknowledges that there was mens rea for supporting the plea." Transcript dated June 27, 2005 at 23: 15-19. During the sentencing, the Court and defense counsel engaged in the following colloquy: Court: "I wouldn't have taken the plea if I thought that your client didn't have the criminal intent to plead guilty to the offense of conviction."
Defense Counsel: "I wouldn't have offered a plea if I thought that. That is not what I am saying." Court: "So by definition I believe she lied on the form when she bought 6 guns, or however many it was, on three different occasions in three different shops. And I take it as true that as to the form she understood that that lie was a felony."
Defense Counsel: "I agree."
Transcript of proceedings held on June 27, 2005 at 14:21-25; 15:1-6.
(iv) Reasonable Sentence
During the sentencing proceeding held on June 27, 2005, the Court stated, among other things, that it had reviewed the submissions from counsel as well as the PSR. The Court stated: "I think [Probation] correctly find[s] that the guideline range is 10 to 16 months and they [Probation] recommend 5 months of incarceration followed by 2 years of . . . supervised release with 5 months home detention as a special condition." Transcript of proceedings held on June 27, 2005 at 2: 8-12. In determining an appropriate and reasonable sentence, the Court considered all of the factors listed in 18 U.S.C. § 3553(a) including but not limited to, "(1) the nature and circumstances of the offense, and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, to provide the defendant with needed rehabilitative measures. We also look at the kinds of sentences available, the kinds of sentence and the sentencing range established by the United States sentencing guidelines which in this case suggests a 10- to 16-month term of incarceration, any policy statements issued by the Sentencing Commission, the need to avoid unwarranted sentence disparities among similarly situated defendants, and the need in appropriate circumstances to provide restitution." Id. at 19:10-25. The Court also considered all of the adjustment/downward departure applications submitted by defense counsel, i.e., based upon role in the offense, alleged aberrant behavior, criminal intent, the "totality of circumstances", Defendant's history and characteristics, etc., Id. at 19-26. Each such application was (appropriately) denied. Id. at 20-24. The Court concluded that a five month term of imprisonment followed by a period of supervised release with special conditions was appropriate and reasonable. Id. at 24, 25.
Prior to the sentencing, the Court received submissions dated May 16, 2005, May 18, 2005 and June 16, 2005 from the defense in which the Defendant requested a non-incarceratory sentence. "As set forth herein, whether characterized as a `reasonable' sentence, or based upon a `departure' from an advisory guideline sentence, it is respectfully submitted that after review of all the facts and circumstances of this case, a non-incarceratory sentence would not only serve the ends of justice but would be fair and just, as well as legally proper." Defense Letter dated May 16, 2005 at 1.
The Court also incorporates by reference the transcripts of proceedings held on March 25, 2005 and June 27, 2005.
Nor is there any reason to further delay commencement of Defendant's sentence.
IV. Conclusion and Order
For the reasons stated, and based upon the submissions of counsel, the record, and prior proceedings herein, the Court does not find that the instant appeal raises a substantial question of law or fact; a decision by the United States Court of Appeals for the Second Circuit Court would be unlikely to result in reversal or an order for a new trial or a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. The motion for bond pending appeal and the one month extension of the surrender date is denied.