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U.S. v. GONZALEZ

February 4, 2004.

UNITED STATES OF AMERICA, -against- RAFAEL GONZALEZ, Defendant


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

SENTENCING OPINION

On July 10, 2003, the defendant Rafael Gonzalez ("Gonzalez") pleaded guilty to one count of Trafficking in Firearms Without a License, in violation of 18 U.S.C. § 922 (a)(1), a Class D Felony.

The Offense Conduct

  The following fact recitation is drawn from the Presentence Report dated January 22, 2004.

  On August 29, 2002, special agents with the Bureau of Alcohol, Tobacco and Firearms ("ATF") learned from a confidential informant ("CI") that a co-conspirator not named as a defendant herein ("CC-1") had two firearms for sale. The CI informed a law enforcement officer operating in an undercover capacity ("UC") that the CC-1 was the same individual from whom the CI had purchased firearms in April 2001 in connection with another federal investigation Page 2 (the "First Federal Investigation"). A meeting was arranged for later that day.

  On August 29, 2002, the UC and the CI drove to the prearranged meeting spot at 882 156th Street, Bronx, New York. The meeting was electronically monitored and recorded by federal agents and other law enforcement officers.

  When the UC and the CI arrived at the meeting spot, Gonzalez was waiting. The UC was re-introduced to Gonzalez, whom he had met in connection with the First Federal Investigation. As the UC, the CI, and Gonzalez were talking, the CC-1 drove up. After speaking with Gonzalez, the CC-1 left the area. While the CC-1 was gone, Gonzalez told the UC that he knew of another 9 millimeter firearm for sale for $400.00 but that the gun "had a body on it." ATF agents knew that a gun "with a body on it" means a gun that had been used to kill a person. Gonzalez also asked the UC whether he would be interested in buying a "brick" (1 kilogram) of cocaine for $27,000. At this point, CC-1 returned with a green bag with the words "First Aid" written on the front. CC-1 unzipped the bag and handed the bag to the UC, mentioning that one of the firearms was loaded. The bag contained a Bryco Arms 9 millimeter pistol and a Lorcin .32 caliber pistol. The UC then gave CC-1 $1,100.00 for the two firearms. Page 3

  On September 18, 2002, the UC and Gonzalez met with a co-conspirator not named as a defendant herein ("CC-2"), in the vicinity of 163rd Street and Morris Avenue in the Bronx, New York. The meeting had been arranged by Gonzalez and was observed and electronically monitored and recorded by federal agents and other law enforcement officers.

  Upon his arrival at the pre-arranged meeting place of 163rd Street and Morris Avenue in the Bronx, the UC met Gonzalez, who entered the UC's vehicle and told him to pull alongside a dark-colored Mustang that was also on the street. After the UC pulled up to the Mustang's driver's side window, Gonzalez introduced CC-2, who was driving the Mustang, to the UC. The UC and Gonzalez then followed the Mustang to the vicinity of 162nd Street near the intersection of Park and Teller Avenues in the Bronx, where the Mustang pulled up next to the UC's vehicle and stopped.

  The CC-2 told the UC that he had a .38 caliber revolver for sale ("the Gun") that belonged to his aunt, who is a retired law enforcement officer. The UC and CC-2 negotiated a price of $475 for the Gun, and CC-2 told the UC to follow him to his apartment.

  The UC and Gonzalez then followed CC-2 in the UC's car to the vicinity of 160th Street between Cortlandt and Morris Avenues in the Bronx. The CC-2 exited the Mustang and entered an apartment Page 4 building at 366 160th Street. The CC-2 returned with a black plastic bag containing the Gun, which he handed to the UC through the driver's side window of the UC's vehicle. The UC then gave CC-2 $480 and received a $5 bill in change. CC-2 told the UC that he had fired two shots from the Gun the night before. CC-2 also discussed getting a "baby nine" and took the UC and Gonzalez into his apartment building to show him the "baby nine."

  Inside the apartment building, CC-2 showed Gonzalez and the UC a Taurus Millennium 9 millimeter pistol ("the 9 mm") wrapped in a shirt on top of a radiator outside the first apartment door to the left. The CC-2 told the UC he did not want to sell the 9 mm, but told the UC that someone he knew was bringing him seventeen "baby nines" which he would sell for $450 each.

  The CC-2 then walked Gonzalez and the UC back to the UC's car. Gonzalez asked CC-2 "Where's my cut?" to which CC-2 replied, "How about $30?" CC-2 handed Gonzalez an undetermined sum of money. Gonzalez then asked the UC for a "bill" for arranging to have the UC buy the guns. The UC gave Gonzalez $100.

  On September 27, 2002, the UC met CC-1 and Gonzalez to purchase another firearm in the vicinity of 882 East 156th Street in the Bronx, New York. The meeting was electronically monitored and recorded by federal agents and other law enforcement officers. Page 5

  On September 27, 2002, the UC drove to the front of 882 East I56th Street, Bronx, New York. A few minutes later, Gonzalez exited 882 East 156th Street and approached the UC's vehicle. Gonzalez, then called to CC-1, who was seated in a vehicle across the street. The CC-1 exited his vehicle and approached the car in which the UC was seated. The CC-1 and the UC discussed a .357 Smith & Wesson revolver (the ".357") and an AK-47 that CC-1 had for sale. CC-1 wanted $650.00 for the .357 and $1,200.00 for the AK-47, although he stated that he did not have access to the AK-47 at that time.

  Around this time, a blue vehicle (the "Blue Car") approached. The CC-1 informed the UC that the driver of the Blue Car was the owner of the .357. Gonzalez told CC-1 to "go get it." The CC-1 then talked with the driver of the Blue Car and drove away in his own vehicle. A few minutes later, the CC-1 returned with a red plastic bag containing a shoe box. Inside the shoe box was a .357 Smith & Wesson revolver. After the UC put the firearm in his trunk, the CC-1 and the UC got into the UC's car and the UC paid CC-1 the previously ...


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