753 F.Supp. 1191 (S.D.N.Y. 1990), 89 Cr. 999, United States v. Hernandez
| Date | 31 December 1990 |
| Citation | 753 F.Supp. 1191 |
| Docket Number | 89 Cr. 999 (MBM). |
| Parties | UNITED STATES of America, Plaintiff, v. Geraldo HERNANDEZ, Defendant. |
| Court | U.S. District Court — Southern District of New York |
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Michael Pinnisi, Asst. U.S. Atty., New York City, for plaintiff.
Barry C. Scheck, New York City, for defendant.
OPINION AND ORDER
MUKASEY, District Judge.
Following denial of defendant Geraldo Hernandez's motion to suppress items seized at the time of his arrest, including the loaded .357 magnum revolver that is the subject of the one-count indictment in this case, 738 F.Supp. 779 (S.D.N.Y.1990), he entered a conditional plea of guilty to possessing that weapon after having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g). He thus preserved his right to appeal the outcome of the suppression motion. Fed.R.Crim.P. 11(a). Hernandez and the government now dispute how his crime and his record should be treated for sentencing purposes, a disagreement that can be resolved only by grasping and otherwise engaging several nettles and thorns in what our Circuit has called "the wilderness of the Guidelines." United States v. Colon, 905 F.2d 580, 584 (2d Cir. 1990).
Defendant's base offense level pursuant to U.S.S.G. § 2K2.1(a)(2) is 12 and, as set forth below, he has earned two points for acceptance of responsibility. U.S.S.G. § 3E1.1. His criminal history category is IV. Without enhancements or departures, an adjusted offense level of 10 and a criminal history category of IV would require that he be sentenced to a term of imprisonment of between 15 and 21 months. U.S.S.G. Chap. 5, Part A. However, for the reasons set forth below, I have concluded that substantial upward departure is warranted both with respect to the offense level and with respect to the criminal history category, with the result that defendant has been sentenced to 90 months imprisonment.
I.
Familiarity with the earlier opinion denying the suppression motion may be assumed, but it is nonetheless useful to recall some facts set forth in that opinion insofar as they relate to the sentencing issues. Hernandez was arrested on December 11,
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1989 by a fugitive apprehension squad of Deputy U.S. Marshals executing a probation violation warrant issued in the Southern District of Florida. That warrant charged that on another occasion he had possessed a 12-gauge shotgun and a .357 magnum revolver other than the weapon that provides the basis for the charge in this case. The arrest was effected in Hernandez's apartment after he was seen entering the building with two unidentified males, apparently confederates, and carrying a black attache case and what turned out to be a cellular telephone. As he approached the building, Hernandez "kept pulling up his belt, like something was falling," which suggested he may well have had a gun in his waistband. (Tr. 22) The Deputy Marshals who arrested Hernandez seized the loaded revolver found under a mattress in the bedroom, a triple beam Ohaus scale found in a closet in the room where Hernandez was arrested, and over $35,000 in cash, the cellular telephone, a beeper, and a driver's license bearing Hernandez's picture and a false name, all in plain view in the apartment. 738 F.Supp. at 781.
The loaded weapon, the cash, the scale, the cellular telephone and the beeper, all found in Hernandez's apartment, virtually compel a finding by a preponderance of the evidence that at the time of his arrest Hernandez was actively involved in drug trafficking, and I so find. See United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975) ("The possession of large amounts of unexplained cash in connection with evidence of narcotics trafficking on a large scale is similar to the possession of special means, such as tools, or apparatus, which is admissible to show the doing of an act requiring those means.") Moreover, the amount of cash and the presence of the triple beam scale make it more likely than not in my view that illicit drugs involved were, as the government has argued, of a "white powder" variety, meaning either cocaine or heroin. That is not to say it is unheard of for large amounts of cash and a triple beam scale, as well as a beeper and a weapon, to be the accoutrements of marijuana dealing, United States v. Seta, 669 F.2d 400, 402 (6th Cir. 1982); United States v. Cashin, 739 F.Supp. 1107, 1108 (E.D.Mich.1990), marijuana being another controlled substance in which Hernandez may have dealt, based on his prior record. Hernandez's criminal history, as set forth below, included a prior conviction that involved both marijuana and cocaine. Rather, even giving Hernandez the benefit of the highest marijuana price that research could locate in any reported case in the last two years, $1,000 per pound, United States v. Campbell, 874 F.2d 838, 840 (1st Cir. 1989), more than $35,000 worth of marijuana at even that price could more conveniently have been weighed on a bathroom scale than on the sensitive instrument Hernandez had in his closet. In any event, the question of precisely what kind of illegal drugs Hernandez was dealing in at the time of his arrest is of strictly academic interest, because even giving Hernandez the benefit under the Sentencing Guidelines of attributing the cash to marijuana, the most innocuous controlled substance plausibly involved here, the Guideline selected for a benchmark in this case, as set forth below, is well below the Guideline that would apply if all the cash were attributed even to marijuana.
Hernandez earned his criminal history category of IV with two prior felony convictions. The first, in the Southern District of Florida in 1984, was for 10 counts of unlawful firearms trafficking, including two counts addressed in particular to transportation of firearms with obliterated serial numbers. The Florida indictment discloses that Hernandez had five co-conspirators, four of them co-defendants, and that the conspirators sought to or did transport more than 200 weapon from Florida to New York. The presentence report, to which Hernandez made no objection insofar as it described his Florida offense (12/6/90 Tr. 13), reports that there were three shipments of weapons, of which only the third was intercepted, that the intercepted shipment included four semi-automatic weapons that had been "special-ordered for the
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purposes of converting them to fully-automatic weapons," and that the value of the last shipment alone was more than $28,000. Pre-Sentence Report ¶ 23. The second conviction, in the state courts of New Jersey, was for possession of marijuana, possession with intent to distribute marijuana, and possession of cocaine.
II.
Based on those facts and that criminal history, the government argued that Hernandez should be sentenced as a Career Offender pursuant to §§ 4B1.1 and .2, and alternatively that a substantial upward departure is warranted because Hernandez was using the subject weapon in aid of the narcotics trafficking in which he obviously was engaged at the time of his arrest. Hernandez argued that the facts do not warrant a finding that he was engaged in any particular narcotics offense at the time of his arrest, and that if any upward departure is warranted it should be limited to a two-point increase in the offense level. If Hernandez were to be sentenced as a career offender, his criminal history category would rise automatically to VI, and his offense level, because his crime is punishable pursuant to 18 U.S.C. § 924(a)(2) by up to 10 years' imprisonment, would rise automatically to 24. U.S.S.G. § 4B1.1. Deducting two points from his offense level for acceptance of responsibility would yield a sentencing range at offense level 22 and criminal history category VI of 84-105 months.
A. Career Offender Status
To the extent relevant here, the Guidelines at § 4B1.1 define a career offender to include one whose offense of conviction is a felony that is a crime of violence and who has been convicted of two prior felonies that were either crimes of violence or controlled substance offenses. Hernandez does not contest that his state court conviction was a controlled substance offense. He contests vigorously that either the federal weapons conviction in Florida or the instant conviction is a crime of violence.
A crime of violence is defined to include any offense punishable by a term exceeding one year that either "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1)(i), (ii). Thus, a crime of violence may be a crime comprised of either "elements" that include at least a threat of violence, or "conduct" that involves at least a threat of violence. It is apparent from the text that neither Hernandez's predicate weapons offenses in Florida nor the offense of conviction in this case has as an "element" any threat or actual use of physical force. Rather, he was charged in Florida with conspiring to traffic unlawfully in firearms, and with dealing in firearms without a license, transporting in interstate commerce firearms with obliterated serial numbers, and transferring firearms to unlicensed persons. Pre-Sentence Report at ¶ 27; 18 U.S.C. §§ 371, 922(a)(1)(A), 922(a)(5) and 922(k). He is charged in this case with possessing a weapon after having been convicted of a felony. One can commit any of those crimes without threatening or using or attempting to use physical force against another person, and thus such offenses can be proved without evidence of such conduct. Therefore, if either the Florida conviction or the current one may be classified under the Guidelines as a crime of...
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