The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendant Salvador Collado was charged with one count of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). After he pled guilty without a plea agreement, the presentence report calculated the range for sentence at between fifteen to twenty-one months, which properly reflects a total offense level of twelve and a Criminal History Category of III. During the sentencing hearing on May 8, 2008, I instructed Mr. Collado's attorney and the Government to submit additional letters to the Court regarding an appropriate sentence for Mr. Collado. Upon review of these papers, the presentence report and the relevant law, I have determined that an incarcerative sentence would be inappropriate and that the sentence for the reasons set out below will consist of time served and three years' supervised release with certain conditions, 200 hours of community service and a $100 assessment.
Salvador Collado, age 38, was convicted on January 31, 1992 in New York Supreme Court, Bronx County, for Robbery in the First Degree. Southern District of New York Probation Office, Presentence Report 2, ¶ 6 (prepared Mar. 21, 2008, revised May 1, 2008) ("PSR"). During the robbery, he shot and killed his accomplice and shot and injured a store employee. Id. ¶ 35. He noted in response to my question that while he agreed to participate in the robbery he had no notion of how to handle a gun and the firing of some twenty-seven bullets was all a terrible accident in which he too was injured. Mr. Collado was twenty-one years old at the time. Id. ¶ 34. He served more than twelve years in prison and, in a letter dated February 5, 2008, explained to me that he has now "been out for a little over three years and in those three years I have been around positive people, church going people and working people. . . . I work hard and appreciate life and all it has to give. . . . I have changed my life." Ex. 1 provided to the Court during May 8, 2008 sentencing hearing ("Collado Letter"). While I receive letters like this with some frequency, the facts here appear to bear out the Defendant's words.
During his prison term, Mr. Collado earned his GED and certificates in various trades. PSR ¶¶ 57-58. He was provided an opportunity to enter the RSAT intensive six-month residential substance abuse program, and he completed the program in February 2003. Def.'s Br. 2. After graduation, he was asked to serve as a counselor to other inmates participating in substance abuse treatment Id. When he was released from prison on parole in November 2004, he continued his substance abuse treatment at an outpatient program in the Bronx. Id. He graduated from the outpatient treatment program at Hunts Point Multi-Service Center, Inc. Outpatient Chemical Dependency Parole Program on May 3, 2006. His certificate of successful completion dated May 3, 2006 attests that he "made lifestyle changes to support his sobriety" and "he showed determination in turning his life around." Def.'s Br. Ex. L. In a letter dated March 18, 2008, two years after his graduation, his former counselors at Hunts Pointwrote a letter of reference for Mr. Collado. They indicated that "Mr. Collado has proven to be a model client . . . able to address many issues that were an impediment to his integration to society. He has proven that with motivation and desire much can be accomplished." Def's. Br. Ex. M. Several of Mr. Collado's friends also wrote letters to the Court attesting to Mr. Collado's good character since his release. See Def.'s Br. Exs. O-R, W, X.
Since his release, Mr. Collado has been steadily employed. PSR ¶ 48. He first worked as a stockperson, then took a higher paying job in construction. Id. ¶¶ 60-61. In the summer of 2005, he began working as a delivery driver, earning $17 per hour. Id. ¶ 62. In 2007, with the assistance of his girlfriend, Lydia Molina, he was able to purchase his first truck and start his own moving company, "Sal Trucking Service." Id. ¶ 63. His business has grown, and he has one employee. Id. He currently holds a Class B Commercial Driver's License and, at the time of his current offense, was preparing to take the examination for a Class A Commercial Driver's License, which will allow him to drive larger trucks. Id. ¶ 59.
On October 25, 2007, two agents of the Diplomatic Security Service of the Department of State visited Mr. Collado's apartment and met with Ms. Molina, who after contact with the Defendant and pursuant to his instructions found and opened Mr. Collado's lockbox to retrieve several documents relating to Mr. Collado's passport application. Id. ¶¶ 6-7. When she opened the lockbox in the presence of the agents, the agents saw an unopened box that contained fifty rounds of nine-millimeter ammunition. Id. ¶¶ 7, 12.
Mr. Collado explained that, about one month earlier, he had found the ammunition in the back of a van that he had recently purchased. Id. ¶ 8. The van's former owner, Victoria Padron, an Environmental Protection Specialist, wrote to me that she had bought the van in 2005 from a man named David, last name unknown, for use during her short commute between her home and the train. Def.'s Br. Ex. R. In July or August of 2007, her son was driving the van to deliver newspapers and got into an accident near Mr. Collado's and Ms. Molina's home. Id. Ms. Padrona ultimately found the cost of repairing the van to be too expensive and, a few weeks later, was planning to donate it to charity, when Mr. Collado offered to purchase it and fix it himself for use in his business. Id. Mr. Collado purchased the van for $300. PSR ¶ 12.
While Mr. Collado and Daniel Casiano, who works with Mr. Collado, were removing the seats and stripping the van's interior, they discovered the box of ammunition.*fn1 Id. Mr. Casiano wrote a letter to the Court that echoes the Collado version, adding that Mr. Collado took the bullets and put the box in a safe place until work was finished on the minivan. Def.'s Br. Ex. T. Mr. Collado explained that he put the ammunition in his lockbox while he tried to decide what to do. PSR ¶ 12. Mr. Collado said he was aware that it was illegal for him to possess the ammunition but that he did not know what to do with it. Id. He was reluctant to hand it over to any authority because he feared that his possession would be suspect. Id. Mr. Collado's statement that he does not own a firearm is undisputed. Id. ¶ 8.
The Probation Office has calculated a sentence range pursuant to the United States Sentencing Guidelines (the "Guidelines"), with which I agree, of fifteen to twenty-one months, based on a total offense level of twelve and a Criminal History Category of III.*fn2 Id. ¶ 4. The Probation Office's Presentence Investigation report states that Mr. Collado has been released on bond since shortly after his arrest in October 2007, and has been compliant with the conditions of his release from the beginning and has appeared at all official appointments. Id. ¶ 5. It is interesting to note that Mr. Collado's state parole officer allowed his parole term to expire in late February 2008, notwithstanding Mr. Collado's current offense. Id. ¶ 34.
A trilogy of Supreme Court cases over the past several years has made it "pellucidly" clear that while judges must pay homage to the Guidelines, the Guidelines are only advisory. Gall v. United States, 128 S.Ct. 586, 594 (2007). See also Kimbrough v. United States, 128 S.Ct. 558 (2007); United States v. Booker, 543 U.S. 220 (2005). In Gall, the Supreme Court provided considerable guidance to the post-Booker sentencing court. In the district court, "[a]s a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark" in deciding what sentence to impose. 128 S.Ct. at 596. However, a district judge "may not presume that the Guidelines range is reasonable," but must "make an individualized assessment on the facts presented." Id. at 596-97 (emphasis added).
Quoting from the Supreme Court's earlier opinion in Koon v. United States, 518 U.S. 81, 113 (1996), Justice Stevens in Gall wrote that "in the federal judicial tradition[,] . . . the sentencing judge [is] 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 the punishment to ensue." 128 S.Ct. at 598. As articulated by the district court in United States v. ...