UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
March 24, 1993
UNITED STATES OF AMERICA, Plaintiff,
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
MEMORANDUM AND ORDER
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 greater):
(1) 12; or
(2) the offense level applicable to the underlying crime or racketeering activity.
Statutory Provision: 18 U.S.C. § 1959
That guideline (2E1.3(a)(2)) requires a reference to:
2. § 2A1.3 - Conspiracy or Solicitation to Commit Murder
(a) Base Offense Level: 28
. . .
(c) Cross References
(1) If the offense resulted in the death of a victim, apply 2A1.1 (First Degree Murder).
3. § 2A1.1 - First Degree Murder
(a) Base Offense Level: 43
It is important to note that, assuming a criminal history category of I, the sentencing guidelines for offense level 28 is 78-97 months and for offense level 43 is life imprisonment.
The presentence report then proceeds to set out, seriatim, "Criminal Acts" of attempted murders and murder of named persons in which the defendants in a variety of permutations and combinations allegedly participated. That recitation is followed by reference to two other guideline sections.
§ 1B1.2 - Applicable Guidelines
. . .
(d) A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of Conspiracy for each offense that the defendant conspired to commit.
§ 1B1.3 - Relevant Conduct (Factors that Determine the Guideline Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments)
Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(1) . . .
(B) In the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
Given one murder attributable to one or more members of the conspiracy, every member of the conspiracy and each of these defendants are charged with responsibility for it and assigned an offense level of 43 - life imprisonment.
A determination was then made that § 3D1.2 - Groups of Closely-Related Counts, was not applicable because guideline § 2E1.3 is specifically excluded from its scope by § 3D1.2(d) as are §§ 2A1.5 and 2A2.1 and § 3D1.2(a), (b) and (c) are not applicable either.
The Probation Department and the Government then refer to § 3D1.4, which provides in part:
Determining the Combined Offense Level
The combined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the amount indicated in the following table:
Number of Units Increase in Offense Level
1 1/2 add 1 level
2 add 2 levels
2 1/2 - 3 add 3 levels
3 1/2 - 5 add 4 levels
More than 5 add 5 levels.
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