Opinion
09 Cr. 748-01 (RWS).
September 30, 2010
SENTENCING OPINION
On June 3, 2010, Pedro Jason Adorno, a/k/a "Peter Adorno" and "Emilio Rivera," ("Adorno" or "Defendant") pleaded guilty to one count of unlawful possession a bulletproof vest, in violation of 18 U.S.C. § 931, and one count of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). For the reasons set forth below, Adorno will be sentenced to 46 months' imprisonment to be followed by three years' supervised release. Adorno will also be required to pay a special assessment of $200.
Prior Proceedings
On August 4, 2009, Indictment 09 CR 748 (RWS) was filed in the Southern District of New York. Count One charges that on April 24, 2009, in the Southern District of New York, Adorno, having previously been convicted of an offense that would constitute a crime of violence, unlawfully possessed a bulletproof vest that previously had been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 931. Count Two charges that on April 24, 2009, in the Southern District of New York, Adorno, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, unlawfully possessed a firearm that previously had been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1).
On June 3, 2010, Adorno appeared before the Honorable Theodore H. Katz in the Southern District of New York and pled guilty as charged.
On September 22, 2010, the Court received a letter from Adorno's counsel requesting that Court not "double count" by enhancing the offense level for each Count by the conduct in the other Count, as the Sentencing Guidelines recommend. In addition, the letter requests that the Court be lenient when imposing a sentence in light of Adorno's family background.
Adorno's sentencing is currently scheduled for October 5, 2010.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (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 Guidelines. 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 114-15.
In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 552 U.S. 85, 102 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a Guidelines sentence is warranted in the instant case.
The Defendant
The Court adopts the facts set forth in the Presentence Investigation Report ("PSR") with respect to Adorno's personal and family history, as supplemented by the September 22, 2010 letter from Adorno's counsel.
The Offense Conduct
The following description draws from the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
On April 24, 2009, New York City Police Officers on routine patrol received a call from their radio dispatcher reporting that a man with a firearm was in a beauty salon near Bruckner Boulevard in the Bronx, New York. Officers responded to the salon and observed Adorno exiting a back room in the salon.
When Adorno approached the officers standing near the salon door leading to the street, an officer noticed that Adorno's t-shirt looked unusually bulky and saw what appeared to be an outline of a bulletproof vest. As Adorno continued towards the door an officer placed his hand on Adorno's back to guide him away from the door so as to ask him some questions. The officer felt what was later determined to be a bulletproof vest. Adorno was taken outside of the salon and placed under arrest.
Upon further discussion with the officers, Adorno informed officers that he had a silver handgun in his waistband when he went into the room he was first observed exiting. Officers conducted a subsequent search of this room and found a loaded silver Bryco 9 millimeter handgun that was not manufactured in New York State.
The Relevant Statutory Provisions
Pursuant to 18 U.S.C. §§ 931 and 924(B)(7), the maximum term of imprisonment for Count One is 3 years. Pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the maximum term of imprisonment for Count Two is 10 years.
If a sentence of imprisonment is imposed on Count One, the Court may impose a term of supervised release of not more than one year, pursuant to 18 U.S.C. § 3583(b)(3). If a sentence of imprisonment is imposed on Count Two, the Court may impose a term of supervised release of not more than three years, pursuant to 18 U.S.C. § 3583(b)(2). Pursuant to 18 U.S.C. § 3624(e), such terms of supervised release run concurrently.
Defendant is eligible for not less than one nor more than five years' probation, pursuant to 18 U.S.C. § 3561(c)(1).
The maximum fine that may be imposed is $250,000 per count, pursuant to 18 U.S.C. § 3571. A special assessment of $100 per count is mandatory, pursuant to 18 U.S.C. § 3013.
The Guidelines
The November 1, 2009 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a). The Court finds the following with respect to Defendant's applicable offense level, criminal history, recognition of responsibility, and term of imprisonment:
Pursuant to § 3D1.2(c), Counts One and Two are grouped. The highest offense level between the two counts becomes the offense level for the group, pursuant to § 3D1.3(a). Accordingly, because the base offense level for Count Two is higher, it is the applicable base offense level. The guideline for the violation of 18 U.S.C. § 922(g)(1) is found in § 2K2.1. The base offense level for Count Two is 20, pursuant to § 2K2.1(a)(4)(A).
Pursuant to § 2K2.1(b)(6), the offense level is increased by four levels because Defendant used the body armor in addition to unlawfully possessing a firearm with ammunition. Accordingly, the offense level for Count Two is 24. Defendant's counsel argues that this enhancement constitutes double counting or warrants a downward departure because it is cumulative of conduct that has already been factored into the offense level calculation. However, because the two counts were grouped and the higher base offense level of the two was applied, the body armor charge did not factor into the calculation prior to the enhancement pursuant to § 2K2.1(b)(6). The grouping of the counts and application of the higher base offense level does not constitute an enhancement. Accordingly, there are no "overlapping enhancements," cumulative or otherwise. Cf. United States v. Jackson, 346 F.3d 22 (2d Cir. 2003) (noting that "in some circumstances an accumulation of somewhat overlapping enhancements, even if not amounting to double counting, can justify a downward departure").
Based on his plea allocution, Defendant has shown recognition of his responsibility for the offense. Pursuant to § 3E1.1(a), the offense is reduced two levels. Furthermore, an additional one-level reduction is warranted, pursuant to § 3E1.1(b), because Defendant gave timely notice of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently.
Accordingly, the applicable offense level is 21.
On July 8, 1995, Adorno was arrested and charged with Petit Larceny. On October 15, 1998, Adorno was sentenced in the Bronx Criminal Court to 1 year imprisonment. This conviction does not warrant any criminal history points.
On September 4, 1998, he was arrested and charged with Attempted Burglary in the Second Degree. On October 15, 1998, Adorno was sentenced in the Bronx Criminal Court to 2 years' imprisonment on this charge. Pursuant to §§ 4A1.1(a) and 4A1.2(e)(1), this conviction warrants three criminal history points.
On April 26, 2004, Adorno was arrested and charged with resisting arrest. On July 27, 2004, he was arrested and charged with Criminal Possession of a Weapon in the Fourth Degree. On December 8, 2004, Adorno was sentenced for the former charge to 15 days' imprisonment, a $500 fine, and the suspension of his driver's license for 6 months. On the same day, he was granted a conditional discharge on the Criminal Possession charge. Pursuant to §§ 4A1.1(c) and 4A1.2(e)(1), the latter conviction warrants one criminal history point. This brings the total of Defendant's criminal history points to four.
A total of four criminal history points establishes a Criminal History Category of III, pursuant to the table at Chapter 5, Part A, of the Guidelines.
Based on a total offense level of 21 and a Criminal History Category of III, the Guidelines range for imprisonment is 46 to 57 months.
The Guidelines range for a term of supervised release is at least two but not more than three years, pursuant to § 5D1.2(a)(2).
Because the applicable Guidelines range is in Zone D of the Sentencing Table, Defendant is not eligible for probation, pursuant to § 5B1.1, Application Note 2.
The fine range for the instant offenses is $7,500 to $75,000, pursuant to § 5E1.2(c)(3)(A) and (c)(3)(B). Subject to Defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release pursuant to § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,270.93 to be used for imprisonment, a monthly cost of $317.32 for supervision, and a monthly cost of $2,063.19 for community confinement.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) to impose a sentence "sufficient, but not greater than necessary," as is required by the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. Upon consideration of all of the relevant factors, including Adorno's troubled family history and the fact that his father was murdered when Adorno was 13 years of age, it is nonetheless concluded that the imposition of a Guidelines sentence is warranted.
The Sentence
For the instant offenses, Adorno will be sentenced to 46 months' imprisonment and 3 years' supervised release.
Adorno is directed to report to the nearest United States Probation Office within seventy-two hours of release to commence his term of supervised release. It is recommended that Adorno be supervised by the district of his residence.
As mandatory conditions of his supervised release, Adorno 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 submit to one drug testing within fifteen days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer; and (5) cooperate in the collection of DNA as directed by the probation officer.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions:
(1) Defendant shall submit his person, residence, place of business, vehicle, or any other premises under his control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. Defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that Defendant is able to pay a fine, and so the fine in this case shall be waived. A special assessment of $200, payable to the United States, is mandatory and shall be due immediately.
The terms of this sentence are subject to modification at the sentencing hearing scheduled for October 5, 2010.
It is so ordered.