U.S. v. Lucania

Citation379 F.Supp.2d 288
Decision Date28 July 2005
Docket NumberNo. CR04410CPS.,CR04410CPS.
PartiesUNITED STATES of America, v. Anthony LUCANIA & Gerard Cavera, Defendants.
CourtU.S. District Court — Eastern District of New York

Michael K. Schneider, Bernard Alan Seidler, Daniel L. Meyers, Daniel Meyers, Attorney-at-Law, Joseph R. Benfante, Joseph R. Benfante, Esq., New York, NY, Philip R. Katowitz, Harold L. Levy, Flamhaft Levy Kamins, Hirsch & Rendeiro LLP, Brooklyn, NY, for Defendants.

Taryn A. Merkl, United States Attorney's Office, Brooklyn, NY, for Plaintiff.

SENTENCING MEMORANDUM & OPINION

SIFTON, Senior District Judge.

Anthony Lucania and Gerard Cavera were named in an indictment on June 29, 2004. Lucania pled guilty to a single count of illegally dealing in firearms in violation of 18 U.S.C. § 922(a)(5). Cavera pled guilty to conspiring to deal in and transport firearms in violation of 18 U.S.C. § 922(a)(1)(A) & (5). These defendants are presently before the Court for sentencing. For the reasons that follow, the Court will consider a non-Guidelines sentence for each defendant.

Discussion

The Supreme Court held in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the mandatory nature of the United States Sentencing Guidelines violated the Sixth Amendment. In its remedy opinion, the Court severed 18 U.S.C. § 3553(b)(1), which had rendered the Guidelines binding on federal sentences. Id. at 764. This left 18 U.S.C. § 3553(a) in effect, which states:

The court shall impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider —

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed —

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for — (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...;

(5) any pertinent policy statement —

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statements by act of Congress....

(6) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

In sentencing these defendants, the Court must determine the applicable Sentencing Guidelines range after making such factual findings as are necessary. United States v. Crosby, 397 F.3d 103, 112 (2d Cir.2005). Then the Court must consider policy statements issued by the Sentencing Commission, as required § 3553(a)(5). Id. This applicable Guideline range is determined in the same manner as before Booker. Id. The Court has the duty to "consider" this Guidelines calculation along with the other relevant factors listed in § 3553(a). Id. at 112-13. The applicable factors are discussed below.

Characteristics of the Defendants and the Offense

These facts are drawn from the Presentencing Investigation Report. They are undisputed except where noted.

Anthony Lucania was born in 1922. He dropped out of high school in 1936 to find work. From 1942 to 1946, he served in the Air Force, and remained a reservist until 1949. He is trained as a welder, has worked as a restaurant manager, foreman, automobile salesman, mechanic, and welder. He has been retired since 1977, and is supported by Social Security and pension benefits and the assistance of his children. He filed for Chapter 7 bankruptcy in 2001. Lucania has three adult children, and is presently married but separated from his wife. He suffers from diabetes, arthritis, high blood pressure, coronary artery disease, and other age-related maladies.

Cavera is a 70 years of age. He served in the Army from 1957 to 1959, during which time he received a good conduct medal. Formerly, he operated an auto garage for a number of years during the 1970s and 1980s. He retired from car repair in 1986, but began a contracting business in 2004. He is married and has five adult children. He and his wife have accumulated substantial unexplained wealth. They own three homes in New York and one in Florida. The two homes are jointly valued at over a million dollars, and Cavera has approximately $350,000 in his bank accounts.

Neither Cavera nor his 70 year old wife are in good health. Cavera has high blood pressure, was diagnosed with gout in the mid 1990s, and has a biannual colonoscopy to remove polyps. Both he and his wife have Type II diabetes. His wife's ailments are more substantial than his. In 1994, she was diagnosed with breast cancer. In 1995 and 1999 she suffered heart attacks. She currently suffers from severe heart problems. In 2003, her breast cancer returned, and a mastectomy was performed. An implant was inserted, but complications later necessitated its removal.

The Offense

The convictions in this case arose out of an F.B.I. investigation into firearms transactions by Lucania, Cavera, and a co-conspirator Peter Abbadessa. Over the course of several months, Abbadessa, with the aid of Cavera and Lucania, made several illegal firearms sales to an informant.

The transactions began on July 29, 2003, when Peter Abbadessa offered to sell firearms to the informant. On August 9, 2003, at the direction of the F.B.I., the informant purchased two guns for $1,500. Abbadessa told the informant that his uncle's friend, the defendant Cavera, brought guns to New York from Florida. On September 3, 2003, the cooperating witness paid Abbadessa $5,100 in anticipation of receipt of six additional handguns. Abbadessa eventually delivered five handguns and, according to the PSR, stated that he would have to check with his uncle, the defendant Lucania, about the discrepancy.1 On December 27, 2003, Abbadessa and the informant discussed the possibility of obtaining more guns from Florida, and Abbadessa stated that his Florida gun supplier was "loading up."

Lucania met with the informant on January 3, 2004. At this meeting, Lucania stated that he would sent word to Cavera in Florida, and that Cavera was a former gun dealer who could obtain guns without any paperwork. On January 17, 2004, Lucania told the cooperating witness that he had met with Cavera and that Cavera had 17 firearms. Four days later, Abbadessa told the informant that Cavera had 20 firearms. On March 18, 2004, Lucania provided the cooperating witness with a list of 16 firearms for sale, at a total price of $11,500.

Abbadessa, Lucania, and the cooperating witness traveled together to Florida on April 8, 2004, to pick up the guns. At the direction of the F.B.I., the cooperating witness gave $11,500 to Lucania for the firearms. Abbadessa and Lucania then traveled to Cavera's residence where they gave him money in exchange for the firearms. Abbadessa and Lucania placed the guns in a box in a trunk of their car. The F.B.I. later recovered 16 firearms from this vehicle. Abbadessa, Lucania, and the cooperating witness returned to New York on separate flights. Two weeks later, on April 20, 2004, Abbadessa sold the cooperating witness another handgun for $1,500.2

On May 11, 2004, the cooperating witness provided Lucania with $2,000 to ensure the continuation of their dealings. At this time, the cooperating witness told the defendants that he intended to sell the firearms he had purchased on the street. Lucania later told the cooperating witness that Cavera had another twelve guns in Florida. Lucania suggested that he and the cooperating witness should return to Florida to retrieve the guns. Lucania also stated that previously Cavera had brought carloads of guns to New York.

Guidelines Calculation S
Cavera

Pursuant to § 2K2.1(a)(7), Cavera's base offense level for firearm trafficking is twelve. After adding four levels pursuant to § 2K2.1(b)(1)(B) to reflect the quantity of guns involved and a three level reduction for acceptance of responsibility pursuant to § 3E1.1, Cavera's total offense level is thirteen. His criminal history category is I. The Sentencing Commission's recommended sentence is twelve to eighteen months. Cavera does not object to these calculations.

Cavera moves for downward departures pursuant to § 5H1.4 due to his own illness and pursuant to § 5H1.6 based on the consequences of a Guidelines sentence on his family due to his wife's health. Cavera contends that his wife's condition requires his presence. Downward departures are only permissible in "especially compelling circumstances." United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir.2005). The factor in question must be "present to a degree substantially in excess of that which ordinarily is involved in the offense." Koon v. United States, 518 U.S. 81, 95, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Yet, a "family circumstances" departure is generally inappropriate where other relatives can meet the family's needs. Selioutsky, 409 F.3d at 119. In this case, the Caveras have five adult children living in the State of New York, each of whom are college graduates. In addition, Cavera and his wife have a net worth in excess of $1 million, and can afford adequate care for his wife in his absence. Although his wife will no doubt suffer the emotional hardship of her husband's absence, that situation is not uncommon.

Nor is Cavera's own health especially poor. His ailments are...

To continue reading

Request your trial
12 cases
  • U.S. v. Vigil
    • United States
    • U.S. District Court — District of New Mexico
    • February 13, 2007
    ...has been recognized by many courts as a mitigating factor." Motion for Downward Departure at 5 (citing United States v. Lucania, 379 F.Supp.2d 288, 297 (E.D.N.Y.2005)(Sifton, J.)("Post-Booker courts have noted that recidivism is markedly lower for older defendants."); Simon v. United States......
  • US v. Polouizzi
    • United States
    • U.S. District Court — Eastern District of New York
    • February 11, 2010
    ... ...          Id. at 101 (citation omitted) (emphasis added) ...         Mandatory minimums in a case like the present one reduce the impact of local community values on our community and the penal systems. Cf. United States v. Lucania, 379 F.Supp.2d 288, 293-96 ... 687 F. Supp.2d 204 ... (E.D.N.Y.2005) (Sifton, J.), aff'd in part, vacated in part sub nom. United States v. Cavera, 550 F.3d 180 (2d Cir.2008); Essay, The Role of Judges in a Government Of, By, and For the People, 30 Cardozo L.Rev. 1, 195-99 (2008); ... ...
  • U.S. v. Polizzi
    • United States
    • U.S. District Court — Eastern District of New York
    • April 1, 2008
    ...(emphasis added). Mandatory minimums reduce the impact of local community values on the penal system. Cf. United States v. Lucania, 379 F.Supp.2d 288 (E.D.N.Y.2005) (Sifton, J.), aff'd in part, vacated in part sub. nom United States v. Cavera, 505 F.3d 216 (2d Cir. 2007); Daniel Richman, Fe......
  • U.S. v. Cavera
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 4, 2008
    ... ... Abbadessa told the confidential informant that his uncle, Anthony Lucania, had a friend named Gerry (Cavera), who acted as Abbadessa's Florida gun supplier. In April 2004, the confidential informant flew to Florida, along ... But when we do hear a case en banc, and we are in substantial agreement, an en banc opinion gives us the opportunity to speak somewhat more broadly, for the purpose of giving guidance to district courts in this Circuit and to future panels of this ... ...
  • Request a trial to view additional results
1 books & journal articles
  • THE DEFENDER GENERAL.
    • United States
    • May 1, 2020
    ...discretion). (280) See United States v. Cavera, 550 F. 3d 180, 185-87, 197 (2d Cir. 2008) (en banc) (quoting United States v. Lucania, 379 F. Supp. 2d 288, 293-94 (E.D.N.Y. 2005)) (affirming that a district court may impose an above-Guidelines sentence when the Guidelines, "'in the pursuit ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT