United States v. Oliveira

• Decision Date: 21 July 2011
• Docket Number: Criminal No. 08cr10104–NG.
• Citation: 798 F.Supp.2d 319
• Parties: UNITED STATES of America, v. Anthony OLIVEIRA, Defendant.
• Court: U.S. District Court — District of Massachusetts

798 F.Supp.2d 319

UNITED STATES of America,

v.Anthony OLIVEIRA, Defendant.

Criminal No. 08cr10104–NG.

United States District Court, D. Massachusetts.

July 21, 2011.

John H. Cunha, Jr., Cunha & Holcomb, PC, Boston, MA, for Defendant.

SENTENCING MEMORANDUM

GERTNER, District Judge.

Anthony Oliveira (“Oliveira”) pled guilty to the crime of felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On July 18, 2006, Oliveira, who had a lengthy felony record, possessed an Imez .38–caliber pistol and ammunition. His sentencing raises a number of substantial issues.

First, his sentence will be determined not merely by the offense and his criminal record. It will be determined by one of the federal recidivist enhancement statutes, the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which increases the ten year maximum sentence associated with felon-in-possession of a firearm to a fifteen year mandatory minimum sentence. Oliveira had previously been convicted of a series of felonies, including two larceny from a person convictions, one resisting arrest, and one assault and battery upon a guard. His counsel challenges whether the two larcenies and the assault and battery should qualify as crimes of violence under the ACCA. Three predicate offenses are required for ACCA sentencing.

Second, Oliveira's sentence will be substantially impacted by the three other gun and drug transactions which the government chose not to charge, merely adding them as “relevant conduct” under the Sentencing Guidelines. As a result of that prosecutorial decision, I am obliged to evaluate these allegations using the sentencing burden of proof, preponderance of the evidence, rather than beyond a reasonable doubt, the trial burden. Should I find that the uncharged conduct occurred as alleged, Oliveira's Guideline score would be increased by nearly six points. Guideline enhancements are triggered because the transactions in total involved four guns (the charged transaction and three others), and the guns were possessed “in connection with” an uncharged drug offense. See United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(b)(1)(A), (b)(4)(A), (b)(6).

Finally, Oliveira's sentence will be determined by what has been called “imperfect entrapment” under U.S.S.G. § 5K2.12, which is “aggressive encouragement of wrongdoing” not amounting to a complete defense. United States v. Garza–Juarez, 992 F.2d 896, 912 (9th Cir.1993). See also United States v. Bala, 236 F.3d 87, 90 (2d Cir.2000). A man who was at best an ordinary thief—with no gun sales in his record, surely nothing on the scale of the conduct the government's witness engineered—was transformed into a gun dealer because of the government's unsavory and not entirely credible cooperating witness.

Sentencing took place over three days, with video and audio exhibits, testimony from an agent and the government's cooperating witness. I concluded that the ACCA does not apply, that larceny in Massachusetts is a stealth crime, not a crime of violence, and should not be considered an ACCA predicate offense. The paradigmatic larceny in Massachusetts involves a pickpocket—with no weapon, no one placed in fear, no one even aware that a crime has been committed. I further concluded that I was obliged to consider the “uncharged conduct” under the Sentencing Guidelines, as the government urged. The “relevant conduct” approach, however criticized,¹ is the law. But I will evaluate that uncharged conduct in the context of the very real entrapment that the government's cooperator engendered.

For the reasons I describe below, I sentenced Oliveira to 100 months' incarceration and 60 months of supervised release—not the fifteen years the ACCA required, if Oliveira qualified under its provisions, nor the ten year maximum sentence that the drug statute would have required. (The Guideline score of 168 to 210 months would have been trumped by the ten year maximum penalty of the offense of conviction, 18 U.S.C. § 924(a)(2).) Make no mistake: This is a substantial sentence, particularly for a man who has never served a term of imprisonment remotely at this level. It is proportionate, meets the purposes of sentencing under 18 U.S.C. § 3553(a) and, more important, it is fair.

I. FACTSA. Offense Conduct

This case arose from a gun sale by Oliveira to a confidential witness, Tom Heroux (“Heroux”), working for the Bureau of Alcohol, Tobacco, and Firearms (“ATF”). Heroux had been an informant for a considerable period of time. He had a long criminal history, including four charges for possession of a dangerous weapon or assault and battery with a dangerous weapon. See Heroux CORI ¶¶ 63, 65, 93, 98 (document # 59–1). There was no question that he, unlike Oliveira, had substantial experience with firearms and their sales. Oliveira claims, and the record supports, that Heroux instigated the gun transactions at issue in this case, encouraging Oliveira to deal more and more because he was willing to purchase more and more—all with government money. Although Oliveira had certainly offended before, he was a thief, not a gun dealer.

Heroux befriended Oliveira. Heroux's relationship with Oliveira derived from the relationship of the women in their lives. Heroux's wife, Rayna Heroux, was the personal caregiver to Oliveira's long-term girlfriend, Susan Facchetti, who suffered from multiple sclerosis.² It was an odd friendship. Oliveira was African American. Heroux sported tattoos of a swastika on his arm and the words “White Pride” on his torso. His truck had a Confederate flag on it.

On November 27, 2005, Heroux informed Special Agent Robert White (“Agent White”) that Oliveira had offered him numerous handguns for sale. I do not credit Heroux's information but Agent White did. Heroux has an extensive criminal record, with over 100 charges listed on his CORI form, including a charge for Possession of a Firearm (CORI ¶ 99), four charges for Possession of a Dangerous Weapon or Assault and Battery Dangerous Weapon (CORI ¶¶ 63, 65, 93, 98), Escape (CORI ¶¶ 57, 59), and numerous drug possession and theft offenses. His main source of income seemed to derive from being a government informant, participating in sting after sting.

Agent White subsequently set up an undercover operation in which, between January 26, 2006, and April 12, 2007, Heroux arranged four separate undercover purchases involving firearms, ammunition, and drugs at Oliveira's home. To the extent that they could (some of the equipment malfunctioned), ATF monitored these transactions via covert audio and visual recording equipment.

The government only chose to indict Oliveira on one offense, the one that took place on July 18, 2006. The day before, Oliveira had contacted Heroux and offered to sell him a pistol for $600. Heroux said that he would pay $100 more if Oliveira would hold the pistol an extra day. ATF agents followed Heroux to Oliveira's residence, then monitored the interaction through audiovisual monitoring devices. Video footage shows Heroux entering Oliveira's bedroom and asking for the gun, which Oliveira removed, along with ammunition, from a red backpack near his bed. Heroux subsequently paid Oliveira $700 in cash. The gun was later examined by an expert, who identified it as a Russian-manufactured Imez .38mm caliber pistol. The firearm was manufactured outside of Massachusetts and had been reported stolen four years before. There was no indication that Oliveira knew its status.

In addition to the sale on July 18, 2006, however, Heroux and Oliveira engaged in the following transactions, which the government chose not to charge: Six months before, on January 26, 2006, Heroux purchased a shotgun from Oliveira for $400 as well as three bags of cocaine for $100. Then, on February 25, 2006, Heroux purchased a 30–30 rifle from Oliveira for $500 and two $50 rocks of cocaine. Almost a year later, on April 12, 2007, Heroux purchased a loaded handgun from Oliveira for $800.³ There is no explanation for the hiatus. It took another year before the government chose to arrest Oliveira. Apart from Heroux's deals, there was no indication that Oliveira ever sold guns to anyone else, before. after or during this period.

It is not at all clear that without Heroux's exhortations and government money, Oliveira would have been dealing in guns at all. While he apparently knew where to get them, and showed some sophistication (putting on gloves, for example, when touching the guns), the transactions show him to be a broker—pairing Heroux with other dealers whose identity he knew. Heroux was very comfortable and familiar with guns and gun sales—not so Oliveira. Heroux often appeared to be the person in charge, explaining pricing and logistics to a relatively passive Oliveira. The government offered no information as to whether the dealers—the sources of the guns, the “big fish,” to whom Oliveira was arguably leading—were ever indicted.

The failure to charge the three “relevant conduct” transactions is telling. If charges had been brought with respect to these transactions, and particularly, if the sources of the guns had been included, Oliveira would have appeared to be even less of a player. Indeed, under those circumstances, I would have considered a downward role adjustment. Moreover, the government's failure to formally charge these offenses—in the face of audiotapes and videotapes—strongly suggests that they were less than confident in their cooperating witness before a jury.

B. Defendant's Background

Oliveira is forty-four years old. His father left when he was three years old; he was raised by his mother in a stable home environment. She worked as a certified nurse's aide and owned their family home in Wareham, MA. Oliveira was very close to his mother. He was devastated when she was diagnosed with brain cancer in 1982 and died a year later at the age of forty-five. Oliveira was seventeen. He was so overwhelmed by her death that...