United States District Court, S.D. New York
For Louis Mcintosh, also known as Lou D, also known as Lou Diamond, also known as G, Defendant: Calvin Harold Scholar, The C.H. Scholar Law Firm, New Rochelle, NY; Deveraux L Cannick, Aiello & Cannick, Maspeth, NY; Troy Adam Smith, Troy A. Smith, Attorney At Law, PLLC, White Plains, NY.
For Edward Ramirez, also known as Taz, Defendant: Clinton Warren Calhoun, Briccetti, Calhoun and Lawrence, White Plains, NY; Marilyn Sternlicht Reader, Marilyn S. Reader Esq., Larchmont, NY.
For USA, Plaintiff: Jessica Ann Masella, U.S. Attorney's Office, SDNY (St Andw's), New York, NY; Sarah Rebecca Krissoff, U.S. Attorney's Office, White Plains, White Plains, NY.
Sidney H. Stein, United States District Judge.
In sentencing defendant Louis McIntosh, this Court addressed three questions that deserve further elucidation. First a jury having convicted McIntosh of three firearm offenses related to each through a single conspiracy, must the Court sentence him separately on each firearm offense? Second, in what order should the Court sentence McIntosh on those firearm offenses, where the sequence of the counts determines the total mandatory minimum sentence? And third, after the Court has calculated the mandatory minimum sentence on those counts, may the Court consider the lengthy minimum when sentencing McIntosh on other counts?
I. Factual Background
The Court assumes familiarity with the facts underlying this case, which are more fully set forth in United States v. McIntosh, No. 11 Cr. 500, 2014 WL 199515 (S.D.N.Y. Jan. 17, 2014) (" McIntosh I " ). Briefly stated, Louis McIntosh was convicted after a jury trial of nine counts that, taken together, describe a spree of robberies and firearm offenses by McIntosh. The nine counts are as follows: one count of conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count One); one count of using, carrying,
or possessing firearms in connection with Count One, in violation of 18 U.S.C § 924(c) (Count Two); two counts of committing Hobbs Act robbery (Counts Five and Seven); two counts of using, carrying, or possessing firearms in connection with the consummated Hobbs Act robberies, in violation of Section 924(c) (Counts Six and Eight); and three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Counts Nine, Ten, and Eleven). As to Counts Two and Eight, the jury found that a firearm was discharged. As to Count Six, the jury found only that a firearm was brandished.
On May 23, 2014, the Court sentenced McIntosh to a term of imprisonment of 720 months, followed by 27 years of supervised release. ( See Judgment, Dkt. No. 215.) This Opinion supplements the record of McIntosh's sentencing to articulate more fully the Court's view on discrete issues that arose in connection with the sentence.
II. Legal Background
18 U.S.C. § 924(c) requires that a mandatory minimum sentence be imposed when " any person , during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). Not only must the mandatory minimum sentence be imposed, but also any sentence pursuant to that provision must be imposed to run consecutively to all other sentences, including any sentence for the underlying predicate crime of violence and any sentence for a separate Section 924(c) conviction. See id.; id. § 924(c)(1)(D) (" Notwithstanding any other provision of law ... (ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence ... during which the firearm was used, carried, or possessed." )
Section 924(c) establishes a range of mandatory minimum sentences, including: a threshold minimum of five years for the use, carrying, or possession of a firearm, id. § 924(c)(1)(A)(i); seven years if a jury finds that " the firearm is brandished," id. § 924(c)(1)(A)(ii); ten years if a jury finds that " the firearm is discharged," id. § 924(c)(1)(A)(iii); and 25 years " [i]n the case of a ...