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United States District Court, S.D. New York

April 28, 2004.


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


On May 21, 2003, the defendant Steven Manuel Torres ("Torres") pleaded guilty to one count of Conspiracy to Illegally Engage in Dealing Firearms in violation of 18 U.S.C. § 371, a Class D felony, and one count of Illegal Sale of Firearms, in violation of 18 U.S.C. § 922(a)(1)(A) and (2), also a Class D felony.

The Offense Conduct

  This statement of facts draws on the Presentence Investigation Report prepared by the U.S. Probation Office.

  This investigation was conducted by the NYPD and ATF agents. On January 25, 2002, and January 26, 2002, NYPD officers and ATF agents arranged for the purchase of, and payment for, two sawed-off shotguns from Torres and Antonio Ortiz-Zayas ("Ortiz-Zayas"), by a confidential informant (the "CI") and an undercover police officer (the "C"). On January 25, 2002, the CI, working at the direction of ATF agents, met with Torres and Ortiz-Zayas at Longfellow Avenue in the Bronx, New York, to discuss the possible purchase of shotguns from Ortiz-Zayas. At approximately 7:45 P.M., Torres arrived at the location with Ortiz-Zayas and entered the CI's vehicle carrying a plastic bag which contained two sawed-off shotguns.

  As Torres and Ortiz-Zayas were showing the CI these shotguns, a NYPD cruiser drove past. Seeing the police car, Torres and Ortiz-Zayas quickly got out of the CI's vehicle, leaving the shotguns behind. Shortly thereafter, Torres spoke with the CI on his cellphone and instructed the CI to keep the shotguns and pay for them the following day.

  On January 26, 2002, at approximately 1:30 P.M., the CI and the UC, acting as the purchasers of the two shotguns, arranged to meet Torres and Ortiz-Zayas in the vicinity of East Tremont and Devoe Avenues in the Bronx to pay for the two shotguns. The CI introduced the UC to Torres and Ortiz-Zayas as the sources of the two shotguns. The UC discussed payment for the shotguns with both Torres and Ortiz-Zayas. Torres told the UC the price of the shotguns, and Ortiz-Zayas accepted $1,200 as payment for the shotguns.

  Based on information from law enforcement agents, it was determined that the shotguns purchased by the UC from Torres and Ortiz-Zayas were not and have never been manufactured in New York State. ATF laboratory reports revealed the following about the shotguns recovered:

a. The first shotgun was a New England Firearms 410 gauge single shot, with serial number NB342878;
b. The second shotgun was a J.G. Higgins 12 gauge shotgun, Model 583.1.
  Additionally, three rounds of Remington 12 gauge shotgun shells were seized. A check of the ATF firearm licensee database revealed that Torres and Ortiz-Zayas are not licensed importers, manufacturers, dealers or collectors of firearms or ammunition.

  Further investigation revealed that guns manufactured before 1968 were not required to have serial numbers. As such, the J.G. Higgins 12-gauge shotgun seized from the defendant, was manufactured prior to 1968, and did not have a serial number.

  Torres was arrested and remanded on April 23, 2003.

 Offender Characteristics

  Torres was born in the Bronx in 1978. Torres completed the ninth grade, but elected not to continue his high school education so that he could support his first child, Steven Manual Torres, who is now seven years of age. Torres has been gainfully employed since that time. In 2001, Torres married another woman, but is currently separated.

  Torres reports that he began using marijuana at age 15 and cocaine at 22, but has not received drug treatment. Torres reports that he has not used drugs since his arrest in April 2003.

  Torres reports that he has been employed as a delivery person at a beverage company in the Bronx. Also, from June 1996, Torres has been employed part-time at Skate Key in the Bronx. Torres' supervisor describes Torres as a "good young man who made a mistake."

 Financial Condition: Ability to Pay

  Torres has judgments against him by the New York State Tax Commission totaling over $6,000. Torres reports that he has no assets, and a net monthly cash flow of under $1000.

 Adjustment for Acceptance of Responsibility

  On the advice of counsel, Torres stands on his plea allocution. In his allocution, Torres admitted that he and Ortiz-Zayas sold firearms to an undercover officer even though he knew that his activities were illegal. During the presentence interview, Torres said that he accepted guilt for his involvement in the instant offense, and he believes that his arrest has made him refocus his life in a positive fashion.

 Offense Level Computation

  The 2002 edition of the Guidelines Manual has been used in this case.

  Counts I and 2 are grouped pursuant to § 3D1.2(b), as Count 2 charges the defendant with the substantive offense which is the object of the conspiracy charged in Count 1.

  The guideline for a violation of 18 U.S.C. § 922(a)(1)-(A), is found in § 2K2.1. Torres sold two sawed-off `shotguns without a license to an undercover officer. Pursuant to § 2K2.1(a)(5), the base offense level is 18.

  Based on Torres's plea allocution, he has shown recognition of responsibility for his offense. Because of Torres's timely notification of his intention to plead guilty, thus allowing the government to allocate its resources more efficiently, and since the offense level is 16 or greater, pursuant to § 3E1.1(a) and (b), the offense is reduced three levels, to 15. Criminal History Category

  According to the FBI and the New York State Division of Criminal Justice Services, Torres has no prior criminal convictions. Therefore, Torres has zero criminal history points and a Criminal History Category of I.

 Sentencing Computation

  For both counts, the maximum term of imprisonment is five years, pursuant to 18 U.S.C. § 371 and § 922(a)(1)(A). Based on a total offense level of 15 and a Criminal History Category of I, the guideline range for imprisonment is 18 to 24 months.

  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). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to § 5D1.1(b). Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute, pursuant to § 5D1.1(a). The defendant is eligible for not less than one nor more than five years probation by statute, pursuant to 18 U.S.C'. § 3561(c)(1). Because the offense is a felony, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service, pursuant to 18 U.S.C. § 3563 (a)(2).

  Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not eligible for probation, pursuant to § 5B1.1, application note #2.

  The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571. A special assessment of $100 on each count is mandatory, pursuant to 18 U.S.C. § 3013. The fine range for the instant offense is from $4,000 to $40,000 pursuant to § 5E1.2(c)(3)(A).

  Subject to the defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the government of any imprisonment, probation, or supervised release pursuant to § 5E1.2(d) (7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,848.02 to be used for imprisonment, a monthly cost of $270.59 for supervision, and a monthly cost of $1,383.50 for community confinement. The Sentence

  In light of the foregoing, Torres shall be sentenced to 18 months imprisonment on each count to run concurrently with each other, to be followed by three years of supervised release on each count, running concurrently. A sentence at the bottom of the range is appropriate given Torres's lesser involvement in the offense.

  Torres is to report to the nearest Probation Office within 72 hours of release from custody, and supervision shall be in the district of residence.

  As mandatory conditions of supervised release, Torres 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 or testing.

  The standard conditions of supervision shall be imposed, with the following special condition: Torres 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 Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer. Torres 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.

  Torres shall participate in a mental health program approved by the U.S. Probation Office. Torres shall contribute to the costs of services rendered not covered by third-party payment, if the defendant has the ability to pay. The Court authorizes the release of available psychological and psychiatric evaluations and reports to the health care provider.

  It is further ordered that the defendant shall pay to the United States a special assessment of $200, which shall be due immediately. As the defendant does not have the ability to pay a fine, the fine in this case shall be waived.

  The defendant has been detained without bail since his arrest. He is not a candidate for voluntary surrender because of the provisions found in 18 U.S.C. § 3143 (a)(2). This sentence is subject to modification at the sentencing hearing now set for May 4, 2004 at 9:30 AM.

  It is so ordered.


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