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October 9, 1992



The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY



 On or about December 13, 1991, in the vicinity of 241 Fifth Avenue, New York, New York, an armored truck operated by the I.B.I. Security Service was parked while the two guards assigned to the truck attempted to deliver a tray containing $ 800,000 in cash from the Federal Reserve Bank to the Cho Hung Bank of New York. When one of the guards exited the truck and opened the side door, he was attacked by one of defendant's co-conspirator, who took the money and entered a green station wagon nearby. The station wagon drove off as the second guard started shooting.

 The guards chased the station wagon until they observed the wagon crash into a fire hydrant on 26th Street. At this point, one of the guards spotted a New York City police car in the vicinity and motioned for the officer to chase a car which he thought the robbers had taken once they had abandoned the station wagon. The chase ensued until police officers observed the second car, a late model white Thunderbird, in the vicinity of 12th Street between First and Second Avenues in Manhattan. Thereafter, the defendant, Anthony Mendola, was arrested while walking along First Avenue between 11th and 12th Streets and taken into custody.

 Defendant pled guilty to Count 1, conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371, and Count 2, armed robbery of the proceeds of a federally insured bank in violation of 18 U.S.C. § 2113(d). The remaining Counts 3 through 5 were disposed of by the Government's nolle prosequi.

 In connection with the sentencing of Anthony Mendola on October 6, 1992, the court principally adopted the sentencing computations and recommendations of the probation officer under the United States Sentencing Guidelines ("Guidelines") as amended. Both the Government and defense counsel agreed with the probation officer's basic computation. A sentencing conference of record was held October 1, 1992, at which time the court considered and addressed the Government's requests for certain upward departures, which had been rejected by the probation officer. At the October 1 conference, the court also considered defense counsel's requests for certain downward departures from the probation officers determinations, which had likewise been rejected. Upon consideration of the foregoing, the court assigned an offense level of 33, down 2 levels from the probation officer's original determination of 35, thus subjecting defendant to incarceration for 135 to 168 months. Defendant was sentenced to 135 months. No fine was imposed. A special assessment of $ 50 each was made on Counts 1 and 2 and a special supervised parole period of 3 and 5 years was imposed to run concurrently.


 A sentence of 135 to 168 months for an offense level of 33 has been determined by the court to be correct. Sentencing Table, U.S.S.G. § 5, at 280. Armed bank robbery is one of the more serious federal crimes. The serious nature of the crime is reflected by the Guidelines which sets a base offense level of 20 for armed bank robbery. U.S.S.G. § 2B3.1.

 The probation officer added to the base level of 20 as dictated by the Guidelines as follows: Mr. Mendola robbed a federally insured financial institution of $ 800,000. Theft from a financial institution is a specific offense characteristic, calling for an increase in the base offense level by 2 levels. U.S.S.G. § 2B3.1(b)(1). A gun, taken from one of the guards by a co-conspirator, was used in robbing the armored truck, although not discharged. For the use of a firearm in the commission of the crime, the base offense level is increased by 6 levels. U.S.S.G. § 2B3.1(b)(2)(B). During Mr. Mendola's attempted escape, a law enforcement officer, Police Officer Lonetto, who had joined the chase, suffered injury to his neck in a car accident and, as a result, is no longer able to serve on the police force. Injury to a victim during the commission of the crime warrants an increase in the base of 4 levels. U.S.S.G. § 2B3.1(b)(3). During the robbery, a firearm was taken from one of the guards; this action warrants an increase in the base level of 1. U.S.S.G. § 2B3.1(b)(5) Finally, for the value of the currency taken from the armored truck, the base offense level is increased by 3 levels. U.S.S.G. § 2B3.1(b)(6).

 The Government's Position

 The Government sought to increase Mendola's base offense level by 7 rather than 6 because a firearm was not only used but discharged during the robbery. However, neither defendant nor his co-conspirator discharged the firearm. The gun was fired by one of the guards who was protecting the armored truck, and no one was injured. The court finds that Mr. Mendola's offense level should not be increased due to the guard's discharging a weapon.

 The Government also sought to increase Mr. Mendola's offense level due to alleged soft tissue injuries suffered by two police officers, Cummings and Coupalupa. Nevertheless, the Government failed to produce any written evidence of the nature and extent of those injuries although specifically requested to do so. A third officer, Officer Curry, received no injuries. Therefore no addition will be made to the base level due to injuries to Cummings, Curry, or Coupalupa.

 Lastly, the Government argued that Mr. Mendola should be sentenced at the high end of his sentencing range because he allegedly attempted to obstruct justice by shaving his beard and mustache prior to a line-up. The Government, however, has no support for its assertion that the motivation for Mr. Mendola's shaving was an intent to obstruct justice. In fact, Mr. Mendola had already been photographed prior to the time that he removed his facial hair. There are not adequate circumstances to justify a finding ...

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