Opinion
01 Cr. 0419 (RWS)
March 18, 2004
MODIFIED SENTENCING OPINION
By letter dated February 19, 2004, defendant Coperquin Gonzalez-Roque ("Gonzalez-Roque") requests a modification of the sentencing opinion of this Court, dated February 6, 2004. See United States v. Gonzalez-Rogue, 01 Cr 419, 2004 WL 307260 (S.D.N.Y. Feb. 17, 2004). No opposition to this request has been received from the government. For the reasons set forth below, the request to modify the sentence is granted.
In the February 17, 2004 opinion, the Court found that the base offense level for a conviction for Illegal Re-entry, for violation of 8 U.S.C. § 1326, was 8 pursuant to § 2L1.2(a). The Court also found that "[b]ecause Gonzalez-Roque was previously deported after his conviction for a crime of violence, 16 levels are added pursuant to § 2L1.2(b)(1)(A)(iii), for a total of 24." Gonzalez-Rogue, 2004 WL 307260, at *1. The conviction on which the 16-level enhancement was based was for Criminal Possession of a Weapon in the Second Degree, in violation of Section 265.03 of the New York Penal Law.
Criminal Possession of a Weapon in the Second Degree is Not A Crime of Violence Under § 2L1.2
Gonzalez-Roque argues that his previous conviction does not qualify as a "crime of violence" under § 2L1.2(b)(1)(A) (iii), and that the applicable Guideline is § 2L1.2 (b)(1)(c), which requires an 8-level increase for an "aggravated felony." The definition of "crime of violence" is provided in application note 1(B) (iii) to § 2L1.2. As Gonzalez-Roque notes, the definition of "crime of violence" in this section is narrower than the definition of the same term in other areas of the Guidelines. The application note first lists a number of violent offenses, and does not include criminal possession of a weapon in the second degree. It ends with an open-ended definition of a crime of violence as "any offense under federal, state or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another." This definition is more restricted than the definition of the same term in § 4B1.2(a), which begins with the same language but adds any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another."
Section 265.03 of the New York Penal Law provides that a person is guilty of criminal possession of a weapon in the second degree when he "possesses a machine gun or loaded firearm with the intent to use the same unlawfully against another." Gonzalez-Roque argues that it is unnecessary to prove intent to use the weapon in order to secure a conviction under § 265.03, and therefore that it is only necessary to prove unlawful possession. Gonzalez-Roque cites two Court of Appeals cases to support the point. In People v. Almodovar, 62 N.Y. 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984), the court held that "[t]he essence of the conduct defined in the sections 265.01-265.05 of the Penal Law is the act of possessing a weapon unlawfully." The Court added that although "[t]he crime may be more serious because of the intent with which the defendant acts . . . [o]nce the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime." Id.; see also Davis v. Strack, 270 F.3d 111, 134 (2d Cir. 2001) (same); People v. Walcott, 653 N.Y.S.2d 323, 235 A.D.2d 368 (1st Dep't 1997) (upholding conviction under § 265.03, in which the jury relied on the statutory presumption under § 265.15(4), which provides that "[t]he possession by any person of . . . any weapon . . . is presumptive evidence of intent to use the same unlawfully against another." N.Y. Penal Law § 265.15(4)).
Similarly, in People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11 (1986), the Court of Appeals considered the claim by the defendant that the trial court erred by failing to instruct the jury of the defense of justification to the charge of criminal possession of a weapon in the second degree. The Pons court held that there was no error because while the defense of justification "recogniz[es] the use of force to be privileged [and lawful] under certain circumstances," it does not apply where the use of force is not at issue, as it is not with respect to a charge under § 265.03. 68 N.Y.2d at 267. The court held that "intent to use and use of force are not the same, and justification, by the very words of the statute (Penal Law § 35.15) is limited to the latter." Id. The court also explained that "crimes involving possession of a weapon are distinct from those involving its use." Id. at 266 (describing the holding of Almodovar). It is clear, therefore, that the crime of criminal possession of a weapon in the second degree does not have as an element the use, attempted use, or threatened use of physical force. At least one other district court has also found that a conviction under § 265.03 does not constitute a crime of violence as that term is used in § 2L1.2(b)(1)(A) (iii). See United States v. Martinez, 02 Cr. 110 (RPP), Sentencing Transcript, May 29, 2003, at 23-24.
In the initial sentencing opinion, this Court cited two unpublished Second Circuit opinions for the proposition that "`Criminal Possession of a Weapon in the Second Degree is categorically a crime of violence,' as that term is used in the Sentencing Guidelines." Gonzalez-Rogue, at *2 (quoting United States v. Gordon, 152 F.3d 921, 1998 WL 3987986, at *1 (2d Cir. June 5, 1998), andciting United States v. Lauter, 112 F.3d 506, 1997 WL 240811, at *3 (2d Cir. May 12, 1997)). Gonzalez-Roque correctly notes that the definition of "crime of violence" used in Gordon included crimes which "involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," Gordon, 1998 WL 3987986, at *1 (quoting 18 U.S.C. § 16 (b)), which is not part of the current definition under § 2L1.2(b)(1)(A) (iii).
Similarly, while Lauter did state that § 265.03 "constitutes a `crime of violence' under the Sentencing Guidelines because it `has as an element the use, attempted use, or threatened use of physical force against the person of another' and `involves conduct that presents a serious potential risk of physical injury to another,'" 1997 WL 240811, at *3 (quoting § 4B1.2(1)) (emphasis added), that statement was made in dicta, and did not consider New York state law on the elements of the crime, relying instead on the fact that the offense "is designated as a Class C violent felony by N.Y. Penal Law § 70.02(b)." Id. On reconsideration, neither case provides authority for the proposition that § 265.03 is a crime of violence under § 2L1.2(b)(1)(A) (iii).
Because Gonzalez-Roque's prior conviction was an aggravated felony but not a crime of violence, 8 levels should have been added to the base offense level of 8, pursuant to § 2L1.2(b)(1)(c). Gonzalez-Rogue's offense level was further reduced three levels for recognition of responsibility for the offense pursuant to § 3E.l(a) and (b). See Gonzalez-Roque, 2004 WL 307260, at *2. The total offense level is therefore 13, not 21. In Criminal History Category IV, the applicable guideline range is 24 to 30 months.
Gonzalez-Roque Is Sentenced Concurrently
Under the previous sentence computation, the Court ordered that Gonzalez-Roque be sentenced to 71 months imprisonment, and that the sentence for Illegal Re-entry should run concurrently with the undischarged term of imprisonment that Gonzalez-Roque is serving after being sentenced in the Southern District of Florida. See id. at *3. Gonzalez-Roque has requested that his newly computed sentence also run concurrently with his previous sentence. Pursuant to § 561.3(c), when a defendant is serving an
undischarged term of imprisonment, the sentence for the last offense may be imposed to run concurrently, partially concurrently or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
Gonzalez-Roque is currently serving a sentence of 48 months. At the completion of his sentence, he will be deported to the Dominican Republic, where he must remain unless granted permission to return. He may also be required to spend additional time in immigration custody prior to his deportation. In addition, Gonzalez-Roque's immigration status makes him ineligible for any early release programs.
In light of these circumstances, Gonzalez-Roque is sentenced to 30 months imprisonment, to be served concurrently with his sentence for Conspiracy to Possess With Intent to Distribute Cocaine. It is determined that this sentence will achieve a reasonable punishment for Gonzalez-Roque's offense of Illegal Reentry. The conditions described in the initial sentencing opinion, see Gonzalez-Roque, 2004 WL 307260, at *3-4, will be imposed.
This sentence is subject to modification at the sentencing hearing now set for March 18, 2004.
It is so ordered.