The opinion of the court was delivered by: Kram, District Judge.
On February 7, 2001, defendant Maurice Brunet ("Brunet") was sentenced
to a term of 46 months incarceration. This opinion sets forth the basis
for the sentence imposed on Brunet.*fn1
In early May 1999, an undercover officer ("UC") posted a gun
advertisement on the Internet. See PSR, ¶ 4. Within a few days of
placing the ad, the UC was contacted by Brunet via e-mail. See id.,
¶ 5. Brunet inquired as to whether or not the guns in question were
assembled and whether or not they were fully or semiautomatic in
function. See id. The UC informed Brunet that the weapons were
semi-automatic and that Bureau of Alcohol, Tobacco, and Firearms ("ATF")
forms would have to be filed to make the transfer. See id. Brunet
responded that he was not interested in purchasing registered firearms,
and that he had already sold his registered collection and was in the
process of replacing them with unregistered items. See id.
Over the next few months, the UC exchanged e-mail messages with Brunet
regarding various illegal firearms, including fully-automatic machine
guns. See PSR, ¶ 7. On August 26, 1999, the UC telephoned Brunet.
See id., ¶ 8. During the course of this telephone conversation
Brunet indicated that he wanted to transfer to the UC two "pineapple"
style hand grenades in return for twenty blasting caps. See id. Brunet
also stated that he needed the blasting caps for his 27 blocks of C-4
plastic explosive. See id.
On August 27, 1999, ATF agents arrested Brunet at his home pursuant to
a search and arrest warrant. See PSR, ¶ 10. A search of Brunet's
basement apartment in Brooklyn, New York resulted in the recovery of the
following items: an M-11 9mm assault weapon; an M-12 .380 caliber assault
weapon (machine gun); an AR-15 type .223 caliber assault rifle; a
Sten-type 9mm machine gun; a functioning hand grenade; a block of C-A
explosives (white clay compound); over 1,500 rounds of ammunition, in
various calibers; two gun-barrel extenders; two silencers; and 43 black
tire spikes, which can be used to puncture the wheels of a chase
vehicle. See id.; see also Gov't Memo. at 5, 8-9. ATF agents also
recovered assorted instructional video tapes concerning bomb and silencer
making; one box of books concerning bomb, gun, and silencer making;
letters addressed to "Mike," offering to sell illegal
machine gun pails and plastic explosives; and a questionnaire entitled
"Resistance and Guerilla Warfare." See PSR, ¶ 11. The questionnaire
asked, inter alia. "What is the police response time in Brooklyn and
Manhattan?". and "How many rounds does a police response team have?" Id.
Finally, agents discovered several bottles of what appeared to be human
urine, along with instructions for manufacturing explosives out of uric
acid crystals, which can be distilled from urine. See Affirmation of
Detective Robert Baumert ("Baumert Aff."), ¶ 9.
On March 22, 2000, Brunet appeared before the Court pled guilty to a
one-count information (the "Information") charging him with unlawful
receipt of unregistered firearms, in violation of 26 U.S.C. § 5861
(d). On October 19, 2000, the Court ordered Brunet to undergo a
psychiatric examination before sentencing. See Report of Dr. Azariab
Eshkenazi dated December 5, 2000 ("Eshkenazi Report"); Addendum to
Eshkenazi Report, dated January 30, 2001 ("Eshkenazi Addendum"). After
several adjouruments of the sentencing date, Brunet was sentenced on
February 7, 2001. Prior to this date, the Government moved for an upward
departure from the United States Sentencing Commission Sentencing
Guidelines (the "Sentencing Guidelines," or "U.S.S.G."), and Brunet moved
for a downward departure. See Gov't Memo.; Brunet Brief. Neither party
objected to the Probation Office's Sentencing Guidelines calculation
resulting in a Sentencing Guidelines range of 27 to 33 months custodix'
for Brunet.*fn2 At sentencing, the Court granted the Government's
application for an upward departure and sentenced Brunet to 46 months
In general, a district court must sentence a defendant within the range
determined by the Sentencing Guidelines. See 18 U.S.C. § 3553(b).
Departures from the guideline range, however, are authorize "if the court
determines `that there exists an aggravating or mitigating circumstance
of a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission.'" United States v. Khalil, 214 F.3d 111, 128 (2d
Cir. 2000) (citing U.S.S.G. § 5K2.0). The Court may depart based on
misconduct by the defendant that did not lead to conviction if the
defendant committed acts "relate[d] in some way to the offense of
conviction, even though not technically covered by the definition of
relevant conduct." United States v. Tropiano, 50 F.8d 157, 164 (2d Cir.
1995) "In departing pursuant to § 5K2.0, the court must give
explanations for the imposition and extent of the departure that are
sufficient to permit meaningful appellate review, but it need not provide
step-by-step explanations." United States v. Khalil, 214 F.3d at 123.
Application Note 16 to U.S.S.G. Section 2K2.1 states that "[a]n upward
departure may be warranted in any of the following circumstances: . . .
(2) the offense involved multiple National Firearms Act weapons (e.g.,
machineguns, destructive devices), military type assault rifles,
non-detectable (`plastic') firearms . . . or (4) the offense posed a
substantial risk t)f death or bodily injury to multiple individuals."
U.S.S.G. § 2K2.1, Application Note
16. In the instant case, an upward departure is warranted for both of
these reasons. First, an upward departure is warranted because Brunet's
offense involved several especially dangerous National Firearms Act
weapons, including two fully automatic machine guns.*fn3 See Baumert
Aff., ¶ 5. In addition, Brunet possessed a semi-automatic AR-15
assault rifle in short-barreled form, which fires high-velocity bullets
capable of penetrating "most body armor, standard police "bullet-proof
vests, and automobiles." Id., ¶ 6. Brunet also possessed a
functioning M-1 hand grenade. The M-1 hand grenade "is capable of killing
or inflicting serious bodily injury on any person within approximately 50
yards of its blast." Id., ¶ 8. The grenade is especially dangerous
because its blast is "omnidirectional and therefore indiscriminate in its
Thus, because Brunet's offense involved multiple National Firearms Act
weapons, the Court finds that upward departure is authorized pursuant to
Application Note 16(2). As to the appropriate extent of the departure, the
Court notes that Sentencing Guideline Section 2K2.1(b) provides for an
upward adjustment of one level to the base offense level where the offense
involves between three and four firearms. See U.S.S.G. § 2K2.1
(b)(1). Using this provision as a guide, the Court finds that a similar
increase (i.e., one level) is appropriate for an offense involving the
same number of National Firearms Act weapons. At least one other court
has adopted this reasoning and approach in upwardly departing from the
Guidelines Pursuant to Application Note 16(2). See United States v.
Alers, 852 F. Supp. 310, 314 (D.N.J. 1994). Adding this departure results
in an offense level of 19 for Brunet.
The second basis for an upward departure is that "the offense posed a
substantial risk of death or bodily injury to multiple individuals."
U.S.S.G. § 2K2.1, Application Note 16(4). In addition to the National
Firearms Act weapons recovered from Brunet's apartment, agents retrieved
a block of clay-like explosives,*fn4 which can be used to create pipe
bombs. Brunet kept this block of explosives, along with his arsenal and
over 1,500 rounds of live ammunition, in his apartment located on a city
street in Brooklyn, New York. An officer who participated in executing
the search warrant for Brunet's home submits that "[i]f the defendant's
hand grenade and/or block of clay-like explosives had been detonated
within his apartment, either by accident or intention, they would likely
have destroyed the house in which he and others live, as well as severely
damaging other buildings within one or two houses of his house." Baumert
Aff, ¶ 11. Such an explosion would also have
ignited the live ammunition contained in Brunet's apartment and the
resulting fires could have spread to surrounding buildings. See id.
Thus, by keeping the live hand grenade, plastic explosives, and vast
quantities of ammunition in his apartment, Brunet posed an unconscionable
and "substantial risk of death or bodily injury to multiple individuals."
U.S.S.G. § 2K2.1, Application Note 16(4). Under these facts, the
Court finds that an upward departure of at least two offense levels is
warranted under Application Note 16(4). Cf. United States v. ...