US v. Aloi

• Decision Date: 23 August 1991
• Docket Number: No. 5:90CR0311.,5:90CR0311.
• Citation: 773 F. Supp. 55
• Parties: UNITED STATES of America, Plaintiff, v. Richard Anthony ALOI, Defendant.
• Court: U.S. District Court — Northern District of Ohio

773 F. Supp. 55

UNITED STATES of America, Plaintiff, v. Richard Anthony ALOI, Defendant.

No. 5:90CR0311.

United States District Court, N.D. Ohio, E.D.

August 23, 1991.

Joe Schmitz, Cleveland, Ohio, for plaintiff.

Matthew Fortado, Akron, Ohio, for defendant.

SENTENCING MEMORANDUM

ANN ALDRICH, District Judge.

Richard Anthony Aloi was convicted, by a jury, of two counts of being a felon in possession of a firearm or ammunition. 18 U.S.C. § 922(g)(1). Aloi is now before this Court for sentencing. The probation department recommends that this Court impose a sentence of 188 months of imprisonment. This recommendation is based on the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which mandates a 15-year minimum sentence for a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for either violent felonies or serious drug offenses. See also United States Sentencing Guideline (U.S.S.G.) § 4B1.4.

Aloi raises several objections to his presentence report (PSR), the foremost of which is that the mandatory minimum should not apply in this case. Specifically, Aloi contends that the government has failed to meet its burden of showing three prior convictions for either violent felonies or serious drug offenses. As will be illustrated by the following discussion, this case is an example of the practical difficulties encountered in imposing sentence under the ACCA, since the Court is required to unearth the facts surrounding convictions which were entered against Aloi twelve, and twenty-four years ago, respectively. The arbitrary nature of the ACCA is also demonstrated by the fact that technical, legal distinctions regarding these ancient convictions mark the difference between a sentence of 21 to 27 months (roughly 2-3 years) or a mandatory minimum term of 180 months (15 years).

For the following reasons, the Court concludes that the mandatory minimum sentence required by the ACCA does not apply to Aloi's case. Accordingly, the Court will impose a sentence of 27 months, to be followed by four years of supervised release.

I.

The ACCA provides, in pertinent part:

In the case of a person who violated section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not less than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

18 U.S.C. § 924(e)(1).

Aloi's PSR initially computed his base offense level for a violation of 18 U.S.C. § 922(g)(1) at 12 points. See U.S.S.G. § 2K2.1(a)(2). Then, the PSR concluded that Aloi had at least three previous convictions for violent felonies. Applying U.S.S.G. § 4B1.4, which implemented the ACCA, the PSR recommended an increased base offense level of 33 points.¹ The PSR also concluded that Aloi would be unable to pay any fine mandated by the ACCA. Based on the recommended criminal history category of IV, the recommended guidelines ranges would be either 21-27 months, under the PSR's initial computation, or 188-235 months under the ACCA.

A.

To determine if it is appropriate to sentence Aloi under the ACCA, the Court must consider whether there are three prior convictions, of the type enumerated in 18 U.S.C. § 924(e), which support enhancement of Aloi's sentence. The Court will first briefly review Aloi's prior convictions, as reported by the probation department. All of these convictions were entered by either the Summit County or Lorain County Court of Common Pleas.

(1) In 1964, Aloi entered a plea of guilty to grand larceny and received a suspended sentence. The state court records do not show that Aloi was represented by counsel at either the plea or sentencing proceedings. The PSR recommends a guidelines score of zero (0) for this offense, pursuant to U.S.S.G. § 4A1.2(e)(3).

(2) In 1967, Aloi was convicted by a jury of armed robbery. According to the indictment in that case, Aloi robbed Susannah M. Cobb of $45 at gunpoint. Aloi was sentenced to 10-15 years in the Ohio State Reformatory; he was released from prison in 1971, and released from parole in 1972. The PSR recommends a guidelines score of zero (0) for this offense, pursuant to U.S.S.G. § 4A1.2(e)(3).

(3) In 1974, Aloi pleaded guilty to the illegal possession of hallucinogen for sale and to two counts of carrying a concealed weapon. The state dismissed other charges for illegal possession of narcotics for sale, felonious assault, possession of criminal tools, and possession of a weapon under a disability. According to the PSR:

The actual details of the situation remain unknown. In what would have appeared to be a fairly simple arrest for Illegal Sale of Narcotics, Mr. Aloi was armed and had to be stopped in the arrest process by gunfire. He was wounded in the process.

Aloi served approximately four years in the Ohio State Penitentiary for these offenses. (Aloi received a six month sentence for the firearms offense, to be served concurrently with the longer sentence for the narcotics offense.) The PSR recommends a guidelines score of three (3) for the drug possession plea pursuant to U.S.S.G. § 4A1.1(a), and a guidelines score of zero (0) for carrying the concealed weapon pursuant to U.S.S.G. § 4A1.2(e)(3).

(4) In 1979, Aloi pleaded guilty to two counts of aggravated burglary, one count of felonious assault, and one count of carrying a concealed weapon. In return for the plea, the state dropped several other charges. According to the PSR and the indictment for that offense, Aloi was involved in an automobile accident on December 31, 1978.² Aloi left the automobile, and, with at least two weapons in his possession, broke into two homes looking for a car to steal. As Aloi was arrested on January 3, 1979, he assaulted a police officer with a .38 caliber revolver. Aloi served more than 10 years in the Ohio State Penitentiary for this offense, and was paroled on August 15, 1989. The PSR recommends a guidelines score of three (3) for these offenses, pursuant to U.S.S.G. § 4A1.1(a). The PSR also recommends adding two (2) additional points under U.S.S.G. § 4A1.1(d) since Aloi committed the present offense while on parole, and one (1) additional point under U.S.S.G. § 4A1.1(e) since the present offense was committed less than two years from Aloi's release on a prior conviction.

Based on the PSR's recommendations, therefore, Aloi would receive a total of nine (9) criminal history points, placing him in a criminal history category of IV. The Court notes that Aloi's criminal history category will not be affected by this Court's rulings concerning the utility of Aloi's prior convictions for sentence enhancement purposes. Aloi challenges the validity of his 1967 conviction, but the probation department has assigned no points to that conviction for computing Aloi's criminal history category because Aloi completed his sentence for that offense more than fifteen years ago. See U.S.S.G. § 4A1.2(e)(3). Aloi also contends that his 1979 convictions should be considered a single "criminal episode"; however, since Aloi received a single sentence for all of those convictions, which were "related", Aloi received only a single criminal history score for those offenses pursuant to U.S.S.G. § 4A1.2(e)(2). See U.S.S.G. § 4A1.2, comment. (n. 3); U.S. v. Chartier, 933 F.2d 111, 115 (2d Cir.1991).

B.

Aloi objects to two aspects of his criminal history score, but the Court finds these objections to be without merit. First, he argues that his 1974 conviction for drug possession should not be counted because his sentence for that offense was originally in error. But for that error, according to Aloi, he would have been released from the state penitentiary more than 15 years ago — therefore mandating a guidelines score of zero (0). See U.S.S.G. § 4A1.2(e). In 1974, Aloi was sentenced to a term of 10-20 years. In 1976, the sentence was modified to 1-10 years, and, in 1977, the sentence was modified to 1-5 years. However, the fact remains that Aloi was still not released on parole until 1978 — even under the corrected sentence — which was less than 15 years before he committed the offense in this case. Therefore, it is proper to include three points in Aloi's criminal history score for the 1974 drug conviction. See U.S.S.G. § 4A1.1(a).

Second, Aloi objects to the addition of two points to his criminal history category, under U.S.S.G. § 4A1.1(d). His counsel stated that "Mr. Aloi was on parole only due to his failure to complete repayment of a debt for postage during his prior incarceration." Aloi also contends that application of U.S.S.G. § 4A1.1(d) places him in multiple jeopardy for the same offense. Under the sentencing guidelines, this Court may not second-guess the State of Ohio's decision to keep Aloi on parole. Section 4A1.1(d), and the commentary thereto, makes no reference to why a jurisdiction might choose to maintain an offender's parole status. Cf. U.S. v. Dyke, 901 F.2d 285, 287 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 279, 112 L.Ed.2d 233 (1990) (district court properly added two points to criminal history score because of defendant's failure to pay court costs in connection with prior state court conviction). The Court also notes that Aloi has presented absolutely no evidence, absent counsel's representation, to support his allegation that the only reason he was on parole was his failure to pay postage.

In addition, it is well-settled that a criminal history score based on a defendant's parole status does not violate the double jeopardy clause, even though the defendant may face additional...