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 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
(the "First Federal Investigation"). A meeting was arranged for later
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
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
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
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
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
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.
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 ...