U.S. v. Salim
| Decision Date | 25 September 2003 |
| Docket Number | No. 01 CR. 002DAB.,01 CR. 002DAB. |
| Citation | 287 F.Supp.2d 250 |
| Parties | UNITED STATES of America, v. Mamdouh Mahmud SALIM, Defendant. |
| Court | U.S. District Court — Southern District of New York |
James B. Comey, United States Attorney for the Southern District of New York, New York, New York, Robert B. Buehler, Jonathan S. Kolodner, Assistant United States Attorneys, of counsel, for U.S.
Richard B. Lind, New York, New York, for Defendant.
The Court writes at this juncture to inform counsel and Defendant of the Court's ruling on certain sentencing issues, including the Guidelines calculation in this matter.1
On April 3, 2002, pursuant to a plea agreement with the Government, Defendant pleaded guilty to Counts Three and Four of a ten-count, superseding indictment (Indictment S1 01-CR-002 (DAB)) relating to the stabbing of Corrections Officer Louis Pepe ("Officer Pepe") at the Metropolitan Correctional Center (the "MCC"). (Plea Transcript of April 3, 2002, hereinafter "Plea Tr."). Count Three of the Indictment charged that Defendant and others had conspired to murder federal officials at the MCC in violation of 18 U.S.C. § 1114; Count Four charged that Defendant had attempted to kill Officer Pepe, in violation of 18 U.S.C. § 1117. (Indictment S1 01-CR-002 DAB). The plea agreement did not set forth stipulations by the parties with respect to the application of the Sentencing Guidelines. Instead, the Government's position on the application of the Sentencing Guidelines to Defendant's case was set forth in an attached letter, (hereinafter the "Pimentel letter"), sent to defense counsel pursuant to the Second Circuit Court of Appeals suggestion in United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir.1991).
In the Pimentel letter, the Government notified Defendant that, pursuant to Section 3D1.2 of the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."), the Government would argue that the Court should "group" the two counts to which Defendant pleaded guilty. (Pimentel letter at 2). According to the Government, Section 2A2.1 of the Guidelines applied to the crime charged in Count Three,2 and because the "object of the attempted murder would have constituted first-degree murder," Defendant's Base Offense Level should be 28. Id.
The Government further notified Defendant of its position that the following sentence enhancements were appropriate: (1) a four-level sentence enhancement because of the permanent bodily injury to Officer Pepe pursuant to U.S.S.G. § 2A2.1(b)(1)(A); (2) a three-level enhancement because Defendant attacked Officer Pepe while Pepe was performing his official duties as a corrections officer pursuant to § 3A1.2(a); (3) a two-level enhancement because Officer Pepe was physically restrained during the attack pursuant to U.S.S.G. § 3A1.3; (4) a 12-level enhancement and an increase in Defendant's Criminal History Category from I to VI, because the attack on Officer Pepe was committed to promote a federal act of terrorism pursuant to U.S.S.G. § 3A1.4; and (5) a two-level downward adjustment, assuming Defendant allocuted to the satisfaction of the Court pursuant to § 3E1.1(a). (Pimentel letter at 2-3). The Government concluded that the resulting applicable Guidelines Offense Level was 47, with a Criminal History Category of VI. Id.
On July 11, 2002, the United States Probation Department sent to the parties a draft Pre-Sentence Report ("PSR"). In a letter dated July 29, 2002, (hereinafter "Def. July 29, 2002"), Defendant contested numerous factual statements contained in the draft PSR, and also challenged: (1) the three-point increase pursuant to U.S.S.G. § 3A1.2 for an attack on an official victim, (2) the three-point, victim restraint enhancement pursuant to U.S.S.G. § 3A1.3, and (3) the twelve-level upward adjustment and Criminal History increase under the "terrorism" enhancement pursuant to U.S.S.G. § 3A1.4. (Def. July 29, 2000.) The Government submitted a responsive Memorandum on August 16, 2002 (hereinafter "Gov. Aug 16, 2002"). Defendant submitted a reply on August 26, 2002 (hereinafter "Def. Aug 26, 2002").
On August 15, 2002, the United States Probation Department sent to the Court and the parties a revised PSR that recommended a total Offense Level of 47 and a Criminal History Category of VI, and a sentence of life imprisonment. (PSR at 23.)
This Court held a pre-sentence Fatico hearing, United States v. Fatico, 603 F.2d 1053 (2d Cir.1979), at which the parties presented evidence and arguments on the challenged sections of the PSR. The transcript of the hearing, spanning ten days of testimony and argument, is hereby incorporated into this Opinion; in addition, relevant sections are set forth below.3
Defendant's testimony and arguments at the Fatico hearing differed in substance from statements in his July 29, 2002 objections to the PSR. In a letter submitted September 12, 2002, (hereinafter, "Gov....
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