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UNITED STATES v. DONOFRIO

March 24, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT DONOFRIO, JOSEPH LEGRANO, aka "Joey Leggs," JOSEPH SANGIORGIO, aka "Lefty," LAWRENCE MICCIOLO, aka "Larry Monk," ROBERT MONTANO; RICHARD ALAN BRADY, MICHAEL P. DEMATTEO, ANTHONY SAYEGH, FRANK PONTILLO, aka "Franky Steel," and JOHN PATE, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 The defendants Montano, Brady, DeMatteo, Pontillo and Pate were convicted after trial and the defendants Donofrio, Legrano, Micciolo, Sangiorgio and Sayegh pleaded guilty to Count One of an indictment which, after describing the structure of the Colombo Organized Crime Family, the internal struggle for leadership of that group and the intensive warfare that followed, charged them as follows:

 
Conspiracy to Murder
 
In or about and between June, 1991 and July, 1992, . . . for the purpose of maintaining and increasing their position in the Colombo Family of La Cosa Nostra, an enterprise engaged in Racketeering Activity as defined in Title 18, United States Code, Section 1959(b)(1), ROBERT DONOFRIO, JOSEPH LEGRANO, JOSEPH SANGIORGIO, LAWRENCE MICCIOLO, ROBERT MONTANO, RICHARD ALAN BRADY, MICHAEL P. DEMATTEO, ANTHONY SAYEGH, FRANK PONTILLO, and JOHN PATE, together with others, knowingly and intentionally conspired to murder members of the Orena faction of the Colombo Family in violation of New York Penal Law Sections 125.25 and 105.15.
 
(Title 18, United States Code, Sections 1959(a)(5) and 3551 et seq.)

 The plea of guilty was entered immediately prior to the scheduled commencement of the trial. It was agreed among the government and the defendants that an allocution by each that he agreed to murder "an individual," in addition to the other elements of the offense, would suffice. A proposed penalty sheet was prepared by the government and distributed to each defendant; that sheet recited the maximum statutory penalties and projected an offense level of 28 which would result in a sentencing range of 78 to 97 months. Immediately following that projected guideline range was a caveat indicating that the base offense level could be 43 (life imprisonment) under U.S.S.G. § 2A1.5(c)(1). At the time of allocution, the government also stated:

 
Finally, I would like to state for the record that all defendants have been advised by their counsel that the guideline range could very well provide for life imprisonment.

 (Plea Minutes at 24-25).

 The presentence report prepared thereafter set out the following sentencing guidelines analysis and computation:

 
1. § 2E1.3 - Violent Crimes in Aid of Racketeering Activity
 
(a) Base Offense Level (applying the ...

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