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United States District Court, S.D. New York

February 4, 2004.


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


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 agreed-upon price of $600.00 for the .357. The CC-1 said he would call the UC when he had the AK-47. CC-1 then gave Gonzalez $40 and left.

  On February 25, 2003, the UC spoke by phone with Gonzalez and CC-1 about purchasing guns and 62 grams of crack cocaine. Gonzalez told the UC that he knew another individual who had three Page 6 guns for sale for $1,400.00 and could get the UC crack. A meeting was arranged for the following day in the vicinity of 882 East I56th Street in the Bronx, New York.

  On February 26, 2003, the UC drove to the front of the building located at 882 East 156th Street in the Bronx, New York, and honked his horn. Several minutes later, Gonzalez, and a co-conspirator not named as a defendant herein ("CC-3"), came out of the building and got into the UC's car. Gonzalez got into the front passenger seat, and CC-3 got into the back seat. The CC-3 said that he knew a girl who had two guns for sale, an AK-47 fully automatic and a nickel-plated .357 magnum with rubber handles, as well as a bag of bullets. The CC-3 wanted $1,400.00 for the guns and said the girl wanted $700. CC-3 said he would have to go get the guns from his uncle's apartment a few blocks away.

  The CC-3 then directed the UC to drive to the front of 950 Union Avenue in the Bronx, New York. On the drive over, the UC tried to negotiate the price downward because CC-3 had only two guns for sale, not three as promised. The CC-3 said it would take him about twenty minutes to go inside and get the guns because he had to meet a girl. Both Gonzalez and CC-3 pushed the UC to go into the apartment with CC-3 and inspect the guns while Gonzalez waited in the car. The UC refused. Page 7

  The CC-3 then got out of the car and approached a car that had followed the UC's car onto Union Avenue and parked further down the street. When CC-3 got to the car, law enforcement agents exited the car and arrested CC-3. Gonzalez, who was seated in the UC's car, was arrested simultaneously.

  ATF agents were aware that Bryco Arms 9 millimeter pistols, Lorcin .32 caliber pistols, Smith & Wesson .38 caliber pistols, and Smith & Wesson .357 revolvers were not and never have been manufactured in the State of New York.

 Adjustment for Acceptance of Responsibility

  Gonzalez stated that he aided and abetted in the sale of five firearms and received approximately $130 for his participation in the sales. He further stated that he regrets having participated in the offense because his actions have caused pain to his family.

 Offense Level Computation

  The November 1, 2003 edition of the Guidelines Manual has been used in this case.

  The guideline for a violation of 18 U.S.C. § 922 (a)(1) is found in § 2K2.1 which provides for a base offense level of 12 Page 8 pursuant to § 2K2.1(a)(7). As the offense involved 5 handguns, the offense level is increased 2 pursuant to § 2K2.1(b)(1)(A), to 14.

  Based on Gonzalez's statement, he has shown a recognition of responsibility for the offense. Pursuant to § 3E1.1(a), the offense level is reduced by two, to 12.

 Criminal History Category

  Gonzalez has no known criminal convictions. Therefore, he has zero criminal history points and a Criminal History Category of I.

 Applicable Guidelines Range

  The sentencing guidelines range for offense level 12, Criminal History Category I is 10 to 16 months.

 Downward Departure

  Gonzalez has moved for a downward departure pursuant to § 5K2.13. Before Gonzalez moved, the Government filed an opposition to a § 5K2.13 departure based on the Psychiatric Report (the "Report") prepared by Richard G. Dudley, Jr., M.D. ("Dr. Dudley") and dated January 6, 2004. The Report concludes that Gonzalez should be considered for a § 5K2.13 departure. Section 5K2.13 Page 9 provides that a downward departure may be warranted if "(1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense." According to the corresponding Application Note, for the purposes of § 5K2.13:

`Significantly reduced mental capacity' means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
Gonzalez has not argued that he was unable to control his behavior; accordingly, subsection (A) is the relevant provision.

  In his Report, Dr. Dudley states that Gonzalez suffers from "multiple psychiatric and neuropsychiatric difficulties", Gonzalez's "intellectual capacities, thinking and judgment are and have always been significantly impaired; he is now and was always plagued by an overwhelming anxiety and impulsivity; and he is and has been chronically depressed and irritable." Report, p. 13.


As a result of these difficulties, at the time of the crimes for which he has been charged, his mental capacity to understand what was going on around him and his mental capacity for reasonable decision-making were both significantly impaired/diminished.
Id. Page 10

  Notably, the Report does not state that Gonzalez's ability to understand the wrongfulness of his behavior was impaired. In addition, while Gonzalez's diminished capacity for "reasonable decision-making" is described, the Report does not provide sufficient evidence to establish that his "reduced mental capacity contributed substantially to the commission of the offense." § 5K2.13; see also United States v. Jimenez, 212 F. Supp.2d 214, 215 (S.D.N.Y. 2002) ("logic suggests that mere temporal coincidence is insufficient, and that some degree of causal link between the diminished capacity and the criminal act is required."). Further, "§ 5K2.13 may not apply at all because firearm offenses represent a serious threat of violence and, as such, may disqualify a defendant from a diminished capacity departure regardless of mental condition." United States v. Allen, 250 F. Supp.2d 317, 320 (S.D.N.Y. 2003). Gonzalez is therefore not entitled to a departure for significantly diminished mental capacity under § 5K2.13.

  However, as in Allen, Gonzalez's limited capacity, especially the finding of Dr. Dudley that Gonzalez's "intellectual capacity is in the borderline range," and that further testing would likely reveal that he is mentally retarded, see Report, p. 12, takes "his case outside the heartland of . . . gun distribution cases." Allen, 250 F. Supp.2d at 320-21. As the Allen court held,

  The Sentencing Reform Act of 1984 requires a sentencing court to impose a sentence within the range prescribed by Page 11 the Guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). Moreover, in Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court held that " [i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue." See also United States v. Payton, 159 F.3d 49, 60 (2d Cir. 1998) ("Realizing some cases will fall outside the heartland of typical cases, Congress entrusted sentencing courts with discretion to take into account specific characteristics of the offender.").

 Id. at 321.

  Dr. Dudley's Report provides an opportunity to consider Gonzalez as an individual and to take into account his specific characteristics. The Report notes that Gonzalez "was born with cognitive deficits." Report, p. 12. When Gonzalez was between the ages of 7 and 10, he witnessed his father stabbing a man 14 times who he suspected was involved with his wife. Gonzalez was "severely traumatized by seeing his father commit an extremely brutal murder," id., as well as by the devastation it brought on his mother. Dr. Dudley diagnosed Gonzalez with Posttraumatic Stress Disorder ("PTSD"), which is characterized by "symptoms such as `flashbacks' (or at least intrusive thoughts) about the trauma, avoidance behavior related to the trauma, overwhelming anxiety/fear, and irritability." Id. Page 12

  While PTSD on its own would be insufficient to affect a defendant's development sufficiently to merit a departure, in Gonzalez's case the effects of PTSD were compounded by "parental abandonment and neglect" which "further impaired his psychological development, resulting in the development of a Borderline Personality Disorder." Id. The primary symptom of Borderline Personality Disorder "is a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and a marked impulsivity that begins by early adulthood and is present in a variety of contexts." Id. (quoting Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IVTR).

  At age 19, Gonzalez suffered head trauma when he fell in the shower and was unconscious for approximately an hour and a half. The Report indicates that the injury Gonzalez suffered "likely resulted in further brain damage and further impairment of his cognitive capacities." Id. at 13.

  Gonzalez is illiterate. While he was placed in special education classes as a child and adolescent, his attendance at school was frequently disrupted and he therefore "never really benefitted from whatever assistance the special education system might have provided for him." Id.

  Gonzalez is now enrolled in a literacy program and attends psychological counseling. He is also employed full-time. Page 13 The Court has also received letters from members of the community attesting to his willingness to help others. One of Gonzalez's neighbors wrote of the assistance Gonzalez provided in apprehending the persons who broke into the neighbor's van and stole his tools.

  Taking into account "this confluence of personality defects, coupled with defendant's borderline intellectual functioning, it becomes apparent that defendant has real mental and emotional deficits." Allen, 250 F. Supp.2d at 322. Accordingly, a two-level departure, from offense level 12 to 10, is warranted in this case.

  "The Second Circuit has instructed district courts to provide sufficient reasons to justify the magnitude of any given departure." Id. (citing United States v. Barresi, 316 F.3d 69, 72 (2d Cir. 2002)). A two-level departure is appropriate in light of the fact that despite Gonzalez's limited intellectual functioning, there is nothing in Gonzalez's history to suggest that he poses a danger to the public or that the public needs to be protected from him. This is Gonzalez's first criminal conviction and accordingly he has never been incarcerated. Imposing a period of home detention rather than incarceration will adequately serve the aims of punishment and deterrence. A period of probation, when combined with continuing counseling, education and employment, would also serve the aim of rehabilitation, a process which has already begun for Gonzalez. At offense level 10, Criminal History Category I, Page 14 Gonzalez's guideline range is 6-12 months. Because the range is in Zone D, a sentence of probation is authorized if the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention. § 5B1.1(a)-(2).

 The Sentence

  In light of the above, Gonzalez is sentenced to 10 months home detention, to be followed by three years of supervised release. No fine is imposed because of Gonzales' financial status.

  Gonzalez is to be supervised in the district of his residence and the standard conditions of probation as recommended by the Probation Department shall apply. In addition, the following mandatory conditions also apply: (1) The defendant shall not commit another federal, state, or local crime; (2) the defendant shall not illegally possess a controlled substance; and (3) the defendant shall not possess a firearm or destructive device; (4) the mandatory drug testing condition is suspended due to the imposition of a special condition requiring drug treatment and counseling.

  The following special condition is also imposed: The defendant will participate in a program approved by the United States Probation Office, which program may include testing to Page 15 determine whether the defendant has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer. The defendant will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of the third-party payment. It is further ordered that the defendant shall pay to the United States a special assessment of $100, which shall be due immediately.

  This sentence is subject to further hearing on February 5, 2004.

  It is so ordered.


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