Opinion
03 Cr. 455 (JFK).
April 28, 2006
APPEARANCES:
For the United States of America: MICHAEL J. GARCIA United States Attorney for the Southern District of New York New York, New York Of Counsel: Harry A. Chernoff Assistant United States Attorney
For the Defendant: Jeremy Schneider Tania D. Horton Rothman, Schneider, Soloway Stern, LLP New York, New York
OPINION and ORDER
Background
Defendant was charged in a two-count indictment with possession of a .25 caliber Beretta semi-automatic firearm (Count 1) and possession of .25 caliber Winchester bullets (Count 2); both after a previous conviction punishable by more than one year. On April 27, 2004, a jury convicted him on Count 2 and acquitted him on Count 1.
Sentence is set for May 3, 2006 and the Probation Department concludes that the defendant is at Offense Level 20, Criminal History Category VI, with an Advisory Guideline Range of 70-87 months. The maximum term of imprisonment for the crime of conviction, 18 U.S.C. § 922(g) (I), is 10 years. The Government wants me to enhance the sentence to the statutory maximum to run consecutively to a sentence he is presently serving because of another federal conviction before Judge Charles Brieant.
The defense opposes any upward departure and at paragraph 13 of the Presentence Report it is stated that "defendant . . . believes he is entitled to a reduction for acceptance of responsibility despite the fact that he went to trial." At oral argument on April 12, 2006, defense counsel reasserted his desire for an acceptance reduction.
Facts
On March 27, 2001, at about 11:35 p.m., at the corner of East 183rd Street and Morris Avenue, Bronx, New York, plainclothes police officers, assigned to the 46th Precinct, observed Ellva Slaughter enter a car. The vehicle was driven by Afrecca Salgado. The car pulled in front of the officers' unmarked police car. As the two vehicles traveled in the same direction, the officers saw Slaughter smoking what appeared to be a marijuana cigarette in the car. With lights and siren, they signaled for the vehicle to stop. The car then pulled over at the corner of East Kingsbridge Avenue and Jerome Avenue. One of the officers approached the passenger's side where defendant was sitting. The officer saw Slaughter reaching for his shoe. Seeing the burning marijuana cigarette through the window inside the car, the officer asked Slaughter to step out of the vehicle. When the door opened, the officer noticed the odor of marijuana smoke. He then requested Slaughter to put his hands on the roof of the car. At that point, the officer frisked Slaughter's waistband and handcuffed him. The officer then continued to frisk by feeling the defendant's shoe, the one he had seen Slaughter reaching into. Inside the defendant's sneaker, the officer felt a hard metal object. The officer put Slaughter on the ground and removed his sneaker. The officer recovered a .25 caliber magazine containing three live rounds of .25 caliber Winchester ammunition from inside Slaughter's shoe. The other officer recovered the marijuana cigarette from the car's ashtray.The police then continued to search Slaughter's person, the vehicle and surrounding area to find the firearm that would match the bullets. They did not find any firearms at the scene. The officers then placed Slaughter in the rear of the police car with his hands cuffed behind his back and took him to the 46th Precinct station house. Upon arriving at the station house, Slaughter was removed from the vehicle and brought inside the station house.
A police officer then conducted a search of the rear of the police car that had been used to transport Slaughter. Subsequent to his arrest, Slaughter admitted that he was going to sell the bullets to someone else. The police removed the rear seat of the police vehicle and found a .25 caliber Beretta semi-automatic pistol with one round in the chamber and eight additional rounds in the magazine. The gun was wedged under the rear seat cushion where Slaughter had been seated. No identifiable fingerprints were recovered from the pistol.
This case was initially assigned to the Honorable Kimba Wood before whom a suppression hearing was held. In affidavits in support of the suppression motion, the defendant stated:
"[n]either I nor the driver had committed any crimes in the presence of the officers" (Affidavit, ¶ 3), "[t]here was no contraband in plain view" (id. ¶ 4), and "I did not possess any marijuana." (Supplemental Affidavit, ¶ 3).
Judge Wood denied the defendant's motion to suppress his arrest and the evidence arising from it. Defendant's affidavits were false because the defendant was smoking marijuana in view of the officers. The officers' testimony at trial further established that the defendant lied in this affidavit, since they recovered a marijuana cigarette from the car's ashtray. In fact, the defendant later told the Probation Office that "he was high when he was arrested for the instant offense." (PSR, ¶ 94).
Analysis
The Government motion for an upward departure is based on acquitted conduct and uncharged allegedly relevant activity. The Government argues that I may consider acquitted conduct if such conduct is established by a preponderance of the evidence.United States v. Watts, 519 U.S. 148 (1997), United States v. SKW Metals and Alloys, Inc., 195 F.3d 83 (2d Cir. 1999). The operative word is "may," not "shall" or "must."
First, the Government urges that the acquittal on Count 1, the firearm count, should be used to increase the offense level by four (USSG § 2K1.1(b) (5)). Then, the Government argues that three state acquittals and an uncharged state assault should be taken into account so as to increase the defendant's offense level.
The first state acquittal was on a 1995 Bronx homicide for which another man was initially charged. The second state acquittal related to a 1999 knife assault while defendant was in custody on the homicide charge. In September 2003, Mr. Slaughter was acquitted on a $20 crack cocaine sale. The Government further charges that in 2002, Slaughter shot a man in the neck, but has never been charged with that offense.
I decline to increase the offense level because of the acquitted and uncharged conduct. The various juries had their reasons to acquit and I am not going to revisit those cases and mentally calibrate whether the prosecution had the better of them by a fair preponderance of the evidence. On the uncharged shooting, the state prosecutor saw fit not to charge. Although I was a prosecutor for many years, I have been a judge for a few more. My ultimate sentence here will serve the ends of justice.
Defendant is currently serving a 51-month sentence imposed by the Honorable Charles L. Brieant, on October 1, 2003, for his conviction for one count of firearms possession and one count of ammunition possession. Judge Brieant stated at the time of his sentence, aware of the pendency of the instant case, that the sentence imposed in the 2003 case is to run "consecutive to any other federal sentence imposed on defendant." The sentence imposed by Judge Brieant was for conduct that occurred subsequent to the instant offense conduct, but was tried first.
The Government argues that the Probation Report in Judge Brieant's case was in error and the guideline range too low there because of an uncounted conviction. This is not something the Court need address. I do direct that my sentence here shall run consecutively to Judge Brieant's sentence.
As pointed out at pages 4 and 5, supra, the defendant clearly should receive an adjustment upward in offense level because of the false statements in his affidavits on the motion to suppress before Judge Wood. This two-level adjustment in offense level raises the level to 22 and increases the guideline range from 70-87 months to 84-105 months at Criminal History Category VI. (USSG § 3C1.1 note 4(f)).
This is an adequate scope for punishment for this defendant in this case. In imposing sentence, I certainly will consider the policy statements of the United States Sentencing Commission, the guideline range at level 22 and the criteria set forth in 18 U.S.C. § 3553(a).
The defense request that the defendant receive a reduction for acceptance of responsibility is summarily denied. To grant such an application in the instant case would be absurd. Defendant lied under oath to Judge Wood and he went to trial. He accepted nothing.
This Opinion and Order constitutes the Court's decision on the various motions relative to the sentence in this case.
Sentence will proceed on May 3, 2006.
SO ORDERED.