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United States District Court, S.D. New York

February 6, 2004.


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


On July 10, 2003, the defendant Coperquin Gonzalez-Roque, a/k/a "Manuel Ledesma" ("Gonzalez-Roque") pleaded guilty to one count of Illegal Re-entry, in violation of 8 U.S.C. § 1326(a) and * (b)(2), a Class C Felony.

The Offense Conduct

  The following fact recitation is drawn from the Presen-tence Report dated January 30, 2004.

  On November 20, 2000, a U.S. Immigration and Naturalization Service ("INS") agent was notified by a special agent from the Bureau of Alcohol, Tobacco and Firearms ("ATF") that Gonzalez-Roque was presently residing in New York, New York.

  The INS agent reviewed Gonzalez-Roque's official INS records and his criminal record sheet and found that on July 12, Page 2 1993 Gonzalez-Roque was convicted of an aggravated felony, namely Criminal Possession of a Weapon in the Second Degree in New York Supreme Court, New York County. Gonzalez-Roque was sentenced to 2 to 6 years imprisonment.

  On September 21, 1997, pursuant to an INS warrant of deportation, Gonzalez-Roque was deported from the U.S. to the Dominican Republic pursuant to § 241(a)(2)(C) of the Immigration and Nationality Act.

  On January 9, 2000, Gonzalez-Roque was arrested by the New York City Police Department for Criminal Possession of a Controlled Substance in the 7th Degree. Gonzalez-Roque told the arresting officers that his name was Manuel Ledesma. The following day, Gonzalez-Roque was convicted in New York Supreme Court, New York County of Criminal Possession of a Controlled Substance in the 7th Degree.

  Gonzalez-Roque's fingerprints for his 1993 arrest, his 2000 arrest, and the fingerprints taken by the INS at the time of his first deportation were compared. The fingerprint specialist indicated that all of the fingerprints came from the same person. INS was then alerted of his return after the deportation.

  On April 10, 2001, Gonzalez-Roque was arrested for illegal re-entry after deportation. On October 1, 2001, the case Page 3 was dismissed by this Court, see United States v. Gonzalez-Rogue, 165 F. Supp. 3d 577 (S.D.N.Y. 2001), and Gonzalez-Roque was again deported on November 14, 2001. However, the Second Circuit reinstated the decision on August 20, 2002. See United States v. Gonzalez-Rogue, 301 F.3d 39 (2d Cir. 2002). A bench warrant was issued on September 3, 2002.

  Gonzalez-Roque was arrested in Florida on July 19, 2002, following a DBA investigation into a cocaine-trafficking organization led by the defendant.

 Adjustment for Acceptance of Responsibility

  At the time of the presentence interview, Gonzalez-Roque, on his counsel's advice, relied on his plea allocution. In his plea allocution, Gonzalez-Roque indicated that he re-entered the U.S. through Miami; eventually he took a Greyhound bus and came to Manhattan.

 Offense Level Computation

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

  The guideline for a violation of 8 U.S.C. § 1326 is found in § 2L1.2 which provides for a base offense level of 8 pursuant to Page 4 § 2L1.2(a). Because Gonzalez-Roque was previously deported after (his conviction for a crime of violence, 16 levels are added pursuant to § 2L1.2(b)(1)(A)(iii), for a total of 24.

  Gonzalez-Roque objects to the 16 level enhancement, arguing that the Criminal Possession of a Weapon in the 2nd Degree is not a crime of violence. In two unpublished Second Circuit opinions, it has been held that "Criminal Possession of a Weapon in the Second Degree is categorically a crime of violence," as that term is used in the Sentencing Guidelines. United States v. Gordon, 152 F.3d 921, 1998 WL 398796, at *1 (2d Cir. June 5, 1998);United States v. Lauter, 112 F.3d 506, 1997 WL 240811, at *3 (2d Cir. May 12, 1997) (same). Under Section 265.03 of the N.Y. Penal Law, "[a] person is guilty of criminal possession of a weapon in the second degree when he possesses a machine-gun or loaded firearm with intent to use the same unlawfully against another." It is designated a class C violent felony by N.Y. Penal Law § 70.02(b). It therefore constitutes a "crime of violence" because it "has as an element the use, attempted use, or threatened use of physical force against the person of another." Application Note 1(B)(iii) to § 2L1.2.

  Based on Gonzalez-Rogue's plea allocution, he has shown recognition of responsibility for the offense. Because of Gonzalez-Roque's timely notification of his intention to plead guilty, thus allowing the government to allocate its resources more Page 5 efficiently, and because the base offense level is 16 or greater, the offense is reduced three levels pursuant to § 3E1.1(a) and (b), to 21.

 Criminal History

  On August 17, 1993, Gonzalez-Roque pleaded guilty in New York Supreme Court, New York County to one count of Criminal Possession of a Weapon, 2nd Degree. He was sentenced to 2 to 6 years imprisonment. On September 3, 1993, Gonzalez-Roque was committed to the Ulster Correctional Facility. May 30, 1997 was his conditional release date. On June 20, 1994, Gonzalez-Roque absconded from a temporary release program and on September 21, 1993, he was returned to the correctional facility. Pursuant to § 4A2.1(e)(1) and § 4A1.1(a), three criminal history points are added.

  On January 10, 2000, Gonzalez-Roque pleaded guilty in Manhattan Criminal Court, New York, New York to one count of Criminal Possession of a Controlled Substance 7th Degree. He was sentenced to Conditional Discharge and 5 days community service. Pursuant to § 4A2.1(e)(1) and § 4A1.1.(a), one criminal history point is added.

  On September 27, 2002, Gonzalez-Roque pleaded guilty in the U.S. District Court for the Southern District of Florida to one Page 6 count of Conspiracy to Possess With Intent to Distribute Cocaine. On January 16, 2003, he was sentenced to 8 years imprisonment and 7 years supervised release. On April 9, 2003, Gonzalez-Roque was admitted to FCI Otisville, New York. On January 23, 2004, Gonzalez-Roque was resentenced to 48 months imprisonment and 2 years supervised release. Pursuant to § 4A2.1(e)(1) and § 4A1.1.(a), three criminal history points are added.

  The criminal convictions above result in a total of 7 criminal history points. According to the sentencing table at Chapter 5, Part A, 7 to 9 criminal history points establish a Criminal History Category of IV.

 Relevant Personal Characteristics

  At the time of the presentence interview, the defendant, on the advice of counsel, did not discuss any details regarding substance abuse. In the presentence report that was prepared in the Southern District of Florida, Gonzalez-Roque admitted to smoking marijuana, on an infrequent basis, since the age of 24. He also indicated that he used cocaine on many occasions and last used it in July 2002. He further indicated that whenever free cocaine from his associates was unavailable, he would spend between $20 and $120 on cocaine for personal use. Page 7

  Gonzalez-Roque indicated that he does not have any assets. He indicated that he only has a credit card with a balance of about $300.

 Sentencing Computation

  The maximum imprisonment is 20 years pursuant to 8 U.S.C. § 1326 (a) and (b)(2). Based on a total offense level of 21 and a Criminal History Category of IV, the guideline range for imprisonment is 57 to 71 months.

  In a case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense pursuant to § 5G1.3(c).

  If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than three years, pursuant to 18 U.S.C. § 3583(b)(2). The Guideline range for a term of supervised release is at least two years but not more than three years, pursuant to § 5D1.2(a)(2).

  Because the applicable guideline range is in Zone D of the Sentencing Table, Gonzalez-Roque is not eligible for probation, pursuant to § 5B1.1, Application Note 2. Page 8

  The fine range for the instant offense is from $7,500 to $75,000 pursuant to § 5E1.2(c)(3) and (c)(4). A special assessment of $100 is mandatory pursuant to 8 U.S.C. § 3013.

 The Sentence

  In light of the foregoing, Gonzalez-Roque shall be sentenced to 71 months imprisonment, followed by three years of supervised release to run concurrent to the undischarged term of imprisonment that Gonzalez-Roque is serving after being sentenced in the Southern District of Florida.

  Gonzalez-Roque has been sentenced to the high end of the range because he has shown little respect for the laws of the United States. Although the charge for the instant offense was initially dismissed and he was deported a second time, Gonzalez-Roque returned after that deportation and became involved in drug trafficking, for which he was arrested in Florida. The term of imprisonment will serve the sentencing purposes of punishment, deterrence and rehabilitation.

  Due to Gonzalez-Roque's drug history, urinalysis and treatment will be imposed as a special condition of supervision. Due to Gonzalez-Roque's immigration status in the United States, as a special condition of supervision, Gonzalez-Roque shall cooperate with the Department of Homeland Security, Bureau of Immigration and Page 9 Customs Enforcement in the event of any proceedings relative to his immigration status. A fine is not recommended as Gonzalez-Roque appears to have no ability to pay. However, a special assessment of $100 is mandatory.

  As mandatory conditions of supervised release, Gonzalez-Roque shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive device.

  The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing. In addition, the following special conditions are imposed:

• The defendant will participate in a program approved by the United States Probation Office, which program may include testing to determine whether the defendant has reverted to using drugs or alcohol. 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.
• The defendant shall comply with the directives of the Bureau of Citizenship and Immigration and Customs Enforcement Services.
  • The defendant is to report to the nearest Probation Office within 72 hours of release from custody. Page 10

  This sentence is subject to modification at the sentencing hearing now set for March 18, 2004.


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