The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
On November 16, 2007, Defendant Gerald Davis pleaded guilty to one count of illegal possession of a sawed-off double barrel shotgun in violation of 26 U.S.C. § 5861(d). The Probation Office for this district calculated a sentence range based on the United States Sentencing Guidelines of eighteen to twenty-four months' imprisonment, which properly reflects a total offense level of fifteen and a Criminal History Category of I. I have reviewed the presentence report, defense counsel's brief and the relevant law, and, while I agree with the Guidelines analysis, this is clearly a case outside the Guidelines, and my sentence will consist of time served, three years' supervised release, with various conditions as set forth below, 200 hours of community service and a $100 special assessment fee. I have concluded, along with the Probation Office, that no fine would be appropriate.
Mr. Davis is a 36-year-old black male, married with six children, and has no prior criminal convictions.*fn1 Southern District of New York Probation Office, Presentence Investigation Report 2, ¶ 6 (prepared Jan. 31, 2008, revised Feb. 20, 2008) 2, ¶¶ 40-42, 47 ("PSR"). Mr. Davis was raised by his mother and grandmother in a "close-knit" family. Id. ¶ 46. His father left when he was five years old and never provided any financial support. Id. As a result, Mr. Davis's mother worked as a home health aide to support Mr. Davis and his sister, Ashanti Davis, and the family moved in with Mr. Davis's maternal grandmother. Id. His mother now works as a counselor for United Cerebral Palsy, despite having suffered a stroke approximately four years ago. Id. ¶ 44. His sister is an EMS driver for the New York City Fire Department. Id. ¶ 45. Mr. Davis remains close with his mother and sister who both also live in the Bronx, New York. Id. ¶ 46.
At sixteen years of age, Mr. Davis left home to attend Job Corps training. Id. Administered by the United States Department of Labor, Job Corps enables young people to learn a trade and find a related job while earning their high school diploma or GED. See http://jobcorps.dol.gov/about.htm. Through Job Corps, Mr. Davis earned his GED and a diploma in welding. PSR ¶ 59. The following year, he also earned a gas-welding diploma. Id. ¶ 60. Thereafter, while Mr. Davis was unable to find a welding position, he maintained regular employment in various capacities throughout his adult life. Before his offense in 2006, he was employed as a maintenance worker at a nursing home for six years until he was laid off. Id. ¶ 63. He struggled thereafter with unemployment as a result of tearing the anterior cruciate ligament in his left knee in 2006. Def.'s Br. 3. He underwent reconstructive surgery in 2007 and subsequently required physical therapy three times per week. Id. Even while ill, he continued to supplement the family's public assistance funds by working as a barber from home, earning approximately $200 per month. PSR ¶ 62.
In addition, Mr. Davis has not abandoned hopes of a better life for him and his family and believes in the importance of education in order to reach that end. Def.'s Br. Ex. F. In November 2007, Mr. Davis enrolled in the State University of New York's Education Opportunity Center, a college preparation program, and has been faithfully attending twenty hours of college courses per week. The Probation Office indicates that he provided documentation from the State University of New York to substantiate this information. PSR ¶ 61. He was scheduled to complete the program in May of 2008, and while his knee surgery has delayed his progress somewhat, his counsel indicated that he is participating in a tutorial to get back on track and should complete both the tutorial and the program itself in the near future. Mr. Davis aspires to begin Hostos Community College's radiology program in September 2008, though it is not clear whether this will be possible given his delayed completion of the college prep program. Id.
Mr. Davis has continued to pursue other employment to help his family, and on March 18, 2008 began to work at a restaurant in Queens, New York during the day. Def.'s Br. 3. He has arranged his life so that following his day job he can attend school and study from 5 to 10 p.m. Def.'s Br. Ex. F.
In 1993 Mr. Davis married his "childhood sweetheart," Renee Williams, with whom he has six healthy small children, ranging in age from three years to twelve years. Def.'s Br. 2; PSR ¶ 47. He described their nearly fifteen-year marriage as very close and focused on their children. PSR ¶ 48. The family lives, and has for some time lived, in a well-kept four-bedroom apartment in the Bronx, New York. Id. ¶ 51. Mr. Davis and his wife hope to move their family to another state, where they might more easily fulfill their dream of owning their own home. Id. ¶ 48. Before achieving a relatively stable home life, the family had resided in a homeless shelter for three years. Id. ¶ 52. Throughout that period, Mr. Davis explains that he and his wife "worked night and day" to provide for their family and to find a path out of the shelter. Def.'s Br. 3.
Mr. Davis is in many ways the primary caretaker of his six children and is deeply involved with their daily lives. PSR ¶ 48. He prepares all of the family meals. Id. His children have written letters to the Court about playing sports and going to movies and parks with their father. Def.'s Br. Ex. D. He is also actively involved in their education and extracurricular activities. PSR ¶ 48. He assists his children with their homework each day. Id. ¶ 50. A schoolteacher for two of Mr. Davis's children stated that Mr. Davis maintains an active presence in school activities: he volunteers to chaperone school trips and attends Parent Teacher Association meetings and every parent-teacher conference. Def.'s Br. Ex. C. He assisted his eldest daughter, Jovena, at age twelve, to successfully become president of her sixth grade class. Def.'s Br. Ex. D. Letters to the Court from his children express a deep bond and love for their father and his dedication to them. Id. Further, the doctor's office for Mr. Davis's children awarded Mr. Davis "Father of the Month" for being so attentive to his children's health. Def.'s Br. 2. The children's doctor, Dr. Phang, who has known the family for eight years, describes Mr. Davis as "courteous and respectful" with respect to his family and to the medical staff. Def.'s Br. Ex. B. Dr. Phang noted the rarity of finding a devoted father who is truly "invested in the health" of all of his children. Id.
Mr. Davis's wife, Ms. Williams, is a physical therapy student who is scheduled to complete her degree at the end of the fall semester of 2008. PSR ¶ 47. Mr. Davis's wife describes Mr. Davis as a great husband and father, and says that they have a "genuine loving" marriage. PSR ¶ 50. She stated that she and Mr. Davis have been involved in a relationship since they were teenagers and have never been apart. Def.'s Br. Ex. E. Mr. Davis's wife was "shocked" to learn of his arrest and described his involvement in the crime as a "foolish" mistake. PSR ¶ 49. She stated that their children would be "traumatized" if their father were sent to jail and that she cannot imagine they could survive without him. Def.'s Br. Ex. E. Since her family lives in Florida and Mr. Davis's mother and sister both work, Ms. Williams would largely be on her own to raise their six children during Mr. Davis's incarceration. PSR ¶ 48. Mr. Davis's two older daughters are aware of his offense and along with his wife, they are worried about the possibility of his incarceration. Id. He, too, is worried that jail time would "destroy" his close family. Id. A photo of Mr. Davis with his children reveals smiling children in their father's arms. Def.'s Br. Ex. A. Mr. Davis appears genuinely remorseful about his actions and he seems to appreciate the negative impact that future criminal behavior would have on his children's lives and his stable marriage. Def.'s Br. Ex. F.
While the motivation for Mr. Davis's offense is unclear, financial hardship due to his unemployment may have been a factor. PSR at 18. Mr. Davis has no assets and is $84 in credit card debt. PSR ¶ 69. Mr. Davis and his family depend mainly on public assistance for their rent and their modest living expenses. Id. While Mr. Davis did not discuss his drug history, drug testing was a condition of his bail. Id. ¶ 56. He once tested positively for the presence of marijuana. Id. However, in early 2008, Mr. Davis tested negative for all illegal narcotics and has been clean at each test over the last three months, with the last test in late May. Id. ¶ 57.
The Bureau of Alcohol, Firearms, Tobacco and Explosive ("ATF") commenced its investigation into the instant offense and in early 2006 received information from a confidential informant that Hisham Saleh had informed the confidential informant that he could obtain firearms and narcotics. Id. ¶¶ 10-11. Eventually, the confidential informant arranged to purchase several firearms, on several different occasions, from Saleh. Id. ¶ 12. On October 4, 2006, Saleh told the confidential informant that he could obtain a sawed-off shotgun for the confidential informant to purchase for $250. Id. ¶ 16. Saleh told the confidential informant that he knew someone named "G," who was subsequently revealed to be Defendant Gerald Davis, who had a sawed-off shotgun, double barrel. Id. ¶ 17. According to the Federal Firearms Licensing Center neither Saleh nor Mr. Davis was a licensed firearms dealer, nor was either one registered to possess a sawed-off shotgun. Id. ¶ 25.
Mr. Davis was arrested pursuant to a warrant on August 7, 2007, almost a year after the offense in October 2006, hardly a testament to his being ...