Opinion
S2 03 Cr. 1115-01 (RWS).
May 23, 2006
SENTENCING OPINION
Defendant Darrin Mosca ("Mosca") has pled guilty to conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, a Class C felony, and to mail fraud in violation of 18 U.S.C. §§ 1341, 1342, a Class C felony. Under the United States Sentencing Guidelines, Mosca is hereby sentenced to 46 to 57 months. His sentence is subject to modification at the sentencing hearing currently scheduled for May 23, 2006.
Prior Proceedings
Mosca was arrested by the authorities on September 25, 2003. On that same day, he was released on a $100,000 personal recognizance bond with co-signors. On January 26, 2005, an indictment was filed in the Southern District of New York charging that from July 2002 through August 2003, Mosca and others engaged in conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 (Count One); and that from July 2002 through August 2003, Mosca and others solicited individuals across the United States to purchase vending machines but failed to supply the vending machines, in violation of 18 U.S.C. §§ 1341, 1342 (Count Two).
On August 4, 2005, Mosca appeared before the Honorable Frank Maas in the Southern District of New York and allocuted to Counts One and Two in accordance with a plea agreement entered into with the Government. Mosca is scheduled to be sentenced on May 23, 2006.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances 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 the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 111.
The Defendant
Mosca was born on August 1, 1969, in New York, New York. Mosca was raised by both of his parents, in a home free from any problems, and characterized by respect, manners, and good ethics. Mosca related that his family was working class and comfortable financially.
Mosca married Laura Gonzalez on April 13, 2002 in Huntington, New York. His wife currently works as a food caterer. Mosca and his wife have one daughter together, age 2, who resides with the two of them.
According to medical documentation, Mosca suffers from diabetes mellitus, and was diagnosed in 2003 with dilated cardiomyopathy with severe left ventricular dysfunction. Mosca has had many episodes of congestive heart failure, and, despite taking a multitude of medications, he continues to display symptoms of congestive heart failure. Records indicate that he has been recommended to undergo heart transplant surgery. A letter from Mosca's physician indicates that the defendant requires frequent doctor's office visits and blood testing and, in his opinion, is too ill for incarceration at this time. Mosca also suffers from peripheral vascular disease, peripheral neuropathy, chronic fatigue syndrome, and labile hypertension.
Mosca has no history of mental or emotional problems and has never sought treatment for such problems.
According to Mosca and his wife, Mosca has had problems with alcohol usage in the past. According to Mosca, he tends to drink vodka heavily when he is feeling depressed or nervous. The defendant also reportedly used marijuana two times per week from approximately 1999 through 2003.
Mosca has a high school education. He has been unemployed since 2003. Previously, he was employed as an independent contractor for Traditional Steel Distributors, earning approximately $60,000 per year. It was during this employ that he committed the instant offenses.
The Offense Conduct
An investigation of the underlying offenses was conducted by the United States Postal Inspection Service ("USPIS"). The investigation revealed that Mosca and others placed advertisements in local newspapers for companies ("Traditional Steel," "Quarters Only," and "PowerVend") that purported to sell coin-operated vending machines. A number of victims contacted these companies in order to purchase vending machines and were directed to send payments to Traditional Steel in the form of cashier's checks, personal checks, and/or wire transfers. In turn, approximately one-half to one-third of the victims never received the vending machines they were promised or received machines of lesser quality than what were promised. Approximately 77 victims suffered from the instant offenses. The specific facts of the underlying offenses are adopted as set forth in the Pre-Sentence Investigation Report dated March 15, 2006.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for Counts One and Two is twenty years per count. See 18 U.S.C. § 1341. If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than three years, pursuant to 18 U.S.C. § 3583(b) (2).
The defendant is eligible for not less than one nor more than five years' probation by statute. See 18 U.S.C. § 3561(c) (1). Because the offense is a felony, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service. 18 U.S.C. § 3563(a) (2).
The maximum fine that may be imposed for Counts One and Two is $250,000 per count, pursuant to 18 U.S.C. § 3571. A special assessment of $100 per count is mandatory. See 18 U.S.C. § 3013.
Full restitution to the victims of the underlying offense is required under 18 U.S.C. §§ 3663A and 3664. Restitution in the amount of $656,255 is owed to the victims in this case.
The Guidelines
The April 30, 2003 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with Guidelines § 1B1.11(b) (1).
The guideline for a violation of 18 U.S.C. §§ 1341 and 1349 is found in U.S.S.G. § 2B1.1, which provides for a base offense level of 6. See U.S.S.G. § 2B1.1(a).
The victims of the underlying offenses suffered a loss of approximately $656,255. Because the amount of loss was greater than $400,000, but less than $1,000,000, the offense level is increased by 14 levels, pursuant to § 2B1.1(b) (1) (H).
Because the offense involved fifty or more victims, the offense level is increased by four additional levels. See U.S.S.G. § 2B1.1(b) (2) (B).
The defendant was the organizer or leader of a criminal activity that involved five or less participants. As such, pursuant to U.S.S.G. § 3B1.1(c), his offense level is increased by two additional levels. The resulting offense level is 26.
Mosca has shown recognition of responsibility for his offense. Therefore, because his base offense level is 16 or greater, his offense level is reduced by three levels. See U.S.S.G. § 3E1.1(a) and (b). The resulting adjusted offense level is 23. Criminal History
Mosca was arrested on April 23, 1998 for Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, Driving While Intoxicated, which results in one criminal history point.
The total number of criminal history points ascribed Mosca is one. According to the sentencing table at Chapter 5, Part A, one criminal history point establishes a Criminal History Category of I.
Sentencing Options
Based on a total offense level of 23 and a Criminal History Category of I, the guideline range for imprisonment is 46 to 57 months.
The guideline range for a term of supervised release for the instant offenses is at least two years, but not more than three years. See U.S.S.G. § 5D1.2(a)(2). If a sentence of one year or less is imposed a term of supervised release is not required but is optional, pursuant to U.S.S.G. § 5D1.1(b). Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute, pursuant to U.S.S.G. § 5D1.1(a).
Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not eligible for probation, pursuant to U.S.S.G. § 5B1.1, application note 2.
The fine range for the instant offense is from $10,000 to $100,000. See U.S.S.G. § 5E1.2(c) (3) (A).
Pursuant to U.S.S.G. § 5E1.1(a)(1), in the case of identifiable victims, the Court shall enter a restitution order for the full amount of the victims' loss.
The Remaining Factors of Section 3553(a)
Having engaged in the Guideline analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) in order to impose a sentence "sufficient, but not greater than necessary" as is required in accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005). In particular, section 3553(a)(1) asks that the sentence imposed consider both "the nature and circumstances of the offense and the history and characteristics of the defendant," while section 3553(a)(2)(A) demands that the penalty "provide just punishment for the offense" that simultaneously "afford[s] adequate deterrence to criminal conduct" as required by § 3553(a) (2) (B). Furthermore, pursuant to § 3553(a) (6), the Court is also mindful of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Taking the aforementioned factors into account, it is concluded that a guideline sentence is warranted in the instant case.
The Sentence
Mosca is hereby sentenced to 46 months imprisonment. If his condition requires specialized care, he shall be assigned to a medical referral center rather than a general population prison.
The Probation Officer who prepared the Pre-Sentence Investigation Report recommended a sentence of time served by departing downward pursuant to U.S.S.G. § 5K2.0. The Second Circuit has held that a district court shall not depart downwardly where "[t]here is no evidence in the record that [defendant's illness] is of a type that cannot be adequately cared for within the prison system." United States v. Martinez, 207 F.3d 133 (2d Cir. 2000). There has been no evidence submitted indicating that the Bureau of Prisons would be incapable of caring for Mosca in a medical referral center or otherwise. Accordingly, it is concluded that a downward departure is not appropriate in this case.
A sentence of two years' supervised release is also imposed. Mosca shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of his residence.
As mandatory conditions of supervised release, Mosca shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; (4) refrain from any unlawful use of a controlled substance; and (5) cooperate in the collection of DNA as directed by the probation officer.
The following special conditions of supervised release are also imposed: (1) the defendant shall provide the probation officer with access to any requested financial information; (2) the defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, unless the defendant is in compliance with the compliance payment schedule; and (3) the defendant shall participate in an alcohol aftercare treatment program under a co-payment plan.
It is further ordered that the defendant shall make restitution payable to the Clerk, U.S. District Court, in the amount of $656,255, for disbursement to the individual victims. The restitution shall be paid in monthly installments of ten percent of gross monthly income over a period of supervision to commence thirty days after the release from custody.
Mosca shall also pay to the United States a special assessment of $200, which shall be due immediately. Due to the imposition of restitution, the fine in this case is waived.