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UNITED STATES v. CARUSO

March 5, 1993

UNITED STATES OF AMERICA,
v.
MICHAEL CARUSO, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 The defendant Michael Caruso has pleaded guilty to violation of 18 USC § 1084 concerning illegal use of interstate wires for wagering and gambling. Under U.S. Sentencing Guidelines § 2E3.2, the base offense level for this crime is 12, with a three-level enhancement for acting in a managerial capacity and a two-level reduction for acceptance of responsibility, leading to a total offense level of 13, enhanced here by a criminal history of I. This would, if not departed from, yield a sentencing range of 12 to 18 months' imprisonment. The parties agreed in connection with a plea bargain not to request departure from the Guidelines, and have honored that promise.

 I have departed downward, however, for the reasons set forth below and have sentenced the defendant to probation for three years including six months of home confinement barring him from leaving home except to go to work, to church or to doctors' offices and with advance approval of his probation officer. A special assessment of $ 50 has been imposed.

 II

 Caruso is a 66 year old man whose gambling activities appear to have been primarily confined to events occurring at his coffee shop and to have produced an income to him of approximately $ 25,000 annually (an estimate the United States does not challenge). There is no indication that his gambling activities were part of any syndicate, racketeering enterprise, or large-scale operation of any kind. He served for two years in the United States Navy during the Second World War and was honorably discharged in 1946, receiving Good Conduct Service and Pacific Service awards.

 In 1984, Caruso underwent an operation for right indirect inguinal hernia and in 1986 one to correct a senile cataract in his left eye, which still causes him some problems. In 1989 he suffered a heart attack leading to hospitalization for ten days and requiring continued prescription of Cardizem.

 For approximately four years, Caruso has been employed as a parking lot attendant and bus driver, receiving commendation from his employer for faithful service. The United States makes no contention that Caruso is likely to continue to engage in illegal activities.

 III

 In the Sentencing Guidelines (Nov. 1, 1992) chapter Two sets forth the materials with respect to "Offense Conduct"; Part E pertains to "Offenses Involving Criminal Enterprises and Racketeering." Under this heading, § 2E3 refers to Gambling.

 Recognizing the importance of involvement in criminal enterprises and racketeering as opposed to individualized small-time gambling, the Introductory Commentary to the gambling subsection of Part E (p. 117) states:

 "This subpart covers a variety of proscribed conduct. The adjustments in Chapter Three, Part B (Role in the Offense) are particularly relevant in providing a measure of the scope of the offense and the defendant's participation."

 The Guidelines with respect to "Mitigating Role" (3B1.2 (p. 244)) deal with those who play a minimal or minor role in ...


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