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Case 3:10-cr-00247-JCH Document 23

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. CARL CHEESEBORO June 13, 2011 Crim. No. 3:10cr247(JCH)

GOVERNMENTS MEMORANDUM IN AID OF SENTENCING I. BACKGROUND On December 21, 2010, a federal grand jury sitting in Bridgeport returned a one-count Indictment against the defendant which charged him with unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g)(1) and 924(a)(2). On January 7, 2011, the defendant was arraigned by the Honorable William I. Garfinkel, United States Magistrate Judge. On March 28, 2011, the defendant pleaded guilty to Count One of the Indictment. Had this case proceeded to trial, the Government would have proven the following: On April 20, 2010, the Superior Court of the State of Connecticut at Shelton authorized a Search and Seizure Warrant for the defendants residence in Ansonia, Connecticut in relation to an investigation into the trafficking of controlled substances and firearms in the area of Seymour, Ansonia, Shelby, and Derby, Connecticut. On April 23, 2010, at approximately 7:00 am, officers of the Shelton, Derby, and Ansonia Police Departments executed that warrant. The defendant, Christine Hayden, and Blair Dumas were inside the residence. Dumas, who possessed a bag of clothing and personal effects, claimed to be an overnight guest. All three occupants were handcuffed for officer safety during a sweep of the residence for firearms, and uncuffed after the house was cleared for firearms. Police officers explained that they were free to leave, but the search would continue. All three individuals decided to stay.

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Two boxes of ammunition were located in the detached garage, one box containing 18 rounds of .45 caliber ammunition manufactured by Remington and one box containing 26 rounds of ten millimeter ammunition manufactured by Federal. Police officers questioned the three individuals about the ammunition. The defendant stated that the ammunition was old and he had it just laying around. Police officers explained that the some of the ammunition was for a ten millimeter firearm, the type of firearm which had been recovered from the vehicle the defendant was operating during the execution of a State of Connecticut Search and Seizure Warrant for a different residence on April 12, 2010, for which the defendant had been arrested and currently faces state charges. The defendant responded only by stating that it was not illegal for him to have ammunition. An examination of the ammunition revealed that the 18 rounds of .45 caliber ammunition manufactured by Remington were manufactured in Arkansas and the 26 rounds of ten millimeter ammunition manufactured by Federal were manufactured in Minnesota. Prior to April 23, 2010, the defendant had sustained seven felony convictions, which are discussed in greater detail below. The Pre-Sentence Report (PSR) found that the base offense level, under the November 1, 2010 version of the Sentencing Guidelines, was 20 because the defendant committed the instant offense subsequent to sustaining at least one felony conviction for a crime of violence or a controlled substance offense. See PSR 22. After a three-level reduction for acceptance of responsibility, the PSR placed the defendant at a total offense level of 17. See PSR 28 and 29. As to the defendants criminal record, the PSR placed him in Criminal History Category VI because he had accumulated thirteen criminal history points, resulting from prior convictions. See PSR 47. At a Criminal History Category VI and a total offense level of 17, the defendant faces a Guidelines incarceration range of 51-63 months. See PSR 84. 2

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II.

DISCUSSION In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the United

States Sentencing Guidelines, as written, violate the Sixth Amendment principles articulated in Blakely v. Washington, 542 U.S. 296 (2004). See Booker, 543 U.S. at 243. The Court determined that a mandatory system in which a sentence is increased based on factual findings by a judge violates the right to trial by jury. See id. at 245. As a remedy, the Court severed and excised the statutory provision making the Guidelines mandatory, 18 U.S.C. 3553(b)(1), thus declaring the Guidelines effectively advisory. Booker, 543 U.S. at 245. After the Supreme Courts holding in Booker rendered the Sentencing Guidelines advisory, a sentencing judge is required to: (1) calculate[] the relevant Guidelines range, including any applicable departure under the Guidelines system; (2) consider[] the Guidelines range, along with the other 3553(a) factors; and (3) impose[] a reasonable sentence. See United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.), cert. denied, 127 S. Ct. 192 (2006); United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005). In turn, 18 U.S.C. 3553(a) provides that [t]he 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; 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; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational 3

(2)

(B) (C) (D)

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training, medical care, or other correctional treatment in the most effective manner; (3) (4) the kinds of sentences available; the kinds of sentence and the sentencing range established [in the Sentencing Guidelines]; any pertinent policy statement [issued by the Sentencing Commission]; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.

(5) (6)

(7)

18 U.S.C. 3553(a). [T]he excision of the mandatory aspect of the Guidelines does not mean that the Guidelines have been discarded. Crosby, 397 F.3d at 111. [I]t would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum. Id. at 113. The Second Circuit reviews a sentence for reasonableness, see Rita v. United States, 127 S. Ct. 2456, 2459 (2007), under a deferential abuse-of-discretion standard, United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). As the Second Circuit recently explained: Our review has two components: procedural review and substantive review. [Cavera, 550 F.3d at 189.] We must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentenceincluding an explanation for any deviation from the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). Once we have determined that the sentence is procedrually sound, we then review the substantive reasonableness of the sentence, reversing only when the trial courts sentence cannot be located within the range of 4

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permissible decisions. Cavera, 550 F.3d at 189 (internal quotation marks omitted). United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (internal quotation marks and citations omitted). The Government submits that a sentence within the Guidelines range of 51-63 months of imprisonment is warranted in this case. In the Governments view, a sentence within the Guidelines range is necessary to achieve specific deterrence in view of the defendants serious criminal history and general deterrence in dissuading other convicted felons from unlawfully possessing ammunition. Put another way, the Government submits that a sentence within the Guidelines range is necessary to signal that the possession of ammunition by convicted felons will be taken seriously and, hopefully, spur a reduction in the violent crimes associated with firearms and ammunition. The defendant has a long and serious criminal history. If not for the technical requirements imposed by United States v. Savage, 542 F.3d 959 (2d Cir. 2008), he would qualify as an armed career criminal subject to a mandatory minimum penalty of fifteen years of imprisonment. The defendant has sustained three felony convictions for the Sale of Hallucinogens/Narcotics, one felony conviction for Robbery in the Second Degree, and one felony conviction for Robbery in the Third Degree, as well as one felony conviction for Weapon in a Motor Vehicle and one felony conviction for Larceny in the Third Degree. See PSR 10. Moreover, the defendants criminal history reflects the repeated imposition of suspended sentences and the service of short terms of imprisonment, some of which are similar in length to the non-Guidelines sentence sought by the defendant in the instant case. But rather than take advantage of the opportunities afforded by the suspended sentences or learn from the service of short terms of imprisonment, the defendant has consistently returned to a life of crime. 5

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The defendants conviction for Robbery in the Second Degree stemmed from the armed robbery of a convenience store, but the defendant received only a five-year suspended sentence. See PSR 31. Just over one year from the date of sentencing, he was convicted for the Sale of Hallucinogens/Narcotics after the Connecticut State Police stopped a car in which he was a passenger and recovered 91 grams of cocaine, 112 grams of marijuana, a fully-loaded revolver, and drug packaging material.1 Although sentenced to six years of imprisonment, the defendant served only about 2.5 years of his sentence. See PSR 32. Less than 1.5 years after the defendants release to community residence, he engaged in belligerent conduct that led to his conviction for Breach of Peace and other criminal activity that led to two convictions for the Sale of Hallucinogens/Narcotics. See PSR 34-35. Although he was sentenced to concurrently serve three years of imprisonment for the Sale convictions, he served approximately six months prior to sentencing and less than two years after sentencing. Later released to supervised parole, the defendant absconded for a period of approximately four months before being readmitted for a parole violation and serving approximately eight additional months of imprisonment. See PSR 34-35. Less than two years following his discharge, the defendant brandished a knife and threatened to kill a woman if her boyfriend did not repay money allegedly owed to the defendant, conduct which led to the defendants conviction for Robbery in the Third Degree. See PSR 36. On March 24, 2000, the defendant received a five-year suspended sentence for that offense and suspended sentences for Evading Injury and Failure to Appear committed within months of the Robbery in the Third Degree. See PSR 36-38. Just over one year later, he engaged in conduct that led to his
1

Also present in the vehicle was Blair Dumas, see PSR 32, the overnight guest present at the defendants residence when the search warrant was executed and the ammunition at issue was recovered on April 23, 2010, see PSR 7. 6

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conviction for Interfering/Resisting, which also violated the term of probation imposed for the Robbery in the Third Degree. See PSR 36, 39. The defendant received concurrent sentences of one year of imprisonment for the Interfering/Resisting conviction and three years of imprisonment for the Probation Violation. See PSR 36, 39. He served about seven months prior to sentencing and just under two years after sentencing. See PSR 39. The defendant then violated his parole less than one month after being discharged to supervised parole. See PSR 39. Less than four months after completing the sentence, the defendant was arrested for conduct which led to convictions for Driving under Suspension (for which he received an unconditional discharge) and Weapon in a Motor Vehicle (for which he received a one-year suspended sentence and two years of conditional discharge). See PSR 40-41. Less than one month after that arrest, the defendant was arrested for conductincluding driving a vehicle that struck a police officers arm and torso as he fled a traffic stop--which led to convictions for Running from the Police and Interfering/Resisting, for which he was sentenced to one year of imprisonment. But the defendant served approximately five months before his discharge to transitional supervision. See PSR 42-43. Less than one year after his discharge to transitional supervision, the defendant was arrested for conduct dating back five years in which he and another individual forcibly took a bag containing $2,500 from a package store manager. See PSR 44. He was sentenced to one year of imprisonment on June 21, 2006, but was discharged to community release on November 13, 2006, less than five months later. See PSR 44. This lengthy and serious criminal history demonstrates that the defendant has failed to take advantage of the opportunities afforded to him by multiple suspended sentences and further failed to learn from the service of short sentences of imprisonment, some comparable to the 36 months he 7

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seeks in this case. This criminal historyreflecting the history and characteristics of the defendant, the need to afford adequate deterrence to criminal conduct, and the need to protect the public from further crimes of the defendantsupports a sentence within the Guidelines range of 51-63 months of imprisonment. In the Governments view, one additional factor bears consideration under 18 U.S.C. 3553(a): the seriousness of the offense. 18 U.S.C. 922(g)(1) prohibits an individual who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year from possess[ing] in or affecting commerce, any firearm or ammunition. 18 U.S.C. 924(a)(2) provides a statutory maximum term of imprisonment of ten years for the unlawful possession of a firearm or ammunition by a convicted felon. The statutory scheme thus equates a firearm to ammunition. Moreover, the defendants possession of 44 rounds of ammunition should not be viewed in isolation. Less than two weeks before law enforcement officers recovered the

ammunition, police officers recovered a loaded firearm in a vehicle the defendant was operating and the defendant acknowledged ownership of that firearm. See PSR 8, 48. Although the defendant reported to police that he intended to get rid of the firearm, he stated he had found it on the street two years ago. PSR 48. In addition to the defendants admission of possession of the firearm for two years, it was a loaded Glock model 20, 10mm caliber pistol, PSR 48, and therefore matched the 26 rounds of ten millimeter ammunition at issue in the instant case, see PSR 8. The unlawful possession of ammunition by a convicted felon, standing alone, is a serious offense. The defendants criminal history and the pending state charges for possession of a corresponding firearm underscore the gravity of this offense.

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III.

CONCLUSION The Government agrees with the PSRs conclusion that the Guidelines range in this case is

51-63 months. The Government submits that a sentence within this range is warranted and objects to a departure, variance, or non-Guidelines sentence on any ground. Respectfully submitted, DAVID B. FEIN UNITED STATES ATTORNEY

/s/ MARC H. SILVERMAN ASSISTANT UNITED STATES ATTORNEY Federal Bar No. phv04307 157 Church Street, Floor 23 New Haven, CT 06510 203-821-3734

CERTIFICATION I hereby certify that on June 13, 2011, the foregoing Governments Memorandum in Aid of Sentencing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system or by mail to anyone unable to accept electronic filing. Parties may access this filing through the Courts system.

/s/ MARC H. SILVERMAN ASSISTANT UNITED STATES ATTORNEY