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Diane Peede, RMR, CRR (407) 615-0305
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IN THE UNITED STATES DISTRICT COURTFOR THE IDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Case no.: 6:10-cr-281-ORl-31KRS
UNITED STATES OF AMERICA, ) Orlando, Florida) September 1, 2011
Plaintiff, ) 1:30 p.m.)
v. ))
EFRAIM DIVEROLI, ))
Defendant. ) )
Transcript of the sentencing (day two)
before the Honorable Gregory A. Presnell
United States District Judge
Appearances:
Counsel for Plaintiff: J. Bishop Ravenel
Counsel for Defendant: Cynthia Hawkins
Court Reporter: Diane C. Peede, RMR, CRR United States Courthouse401 West Central Blvd., #4600Orlando, Florida 32801(407) 615-0305
Proceedings recorded by mechanical stenography, transcript produced by computer.
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Diane Peede, RMR, CRR (407) 615-0305
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P R O C E E D I N G S
THE COURT: Okay. Lisa, if you would, call the
case.
THE COURTROOM DEPUTY: This is in the matter of the
United States of America versus Efraim Diveroli, case number
6:10-criminal-281-Orlando-31KRS.
THE COURT: Okay. Appearances?
R. RAVENEL: Good afternoon, Your Honor. Bishop
Ravenel for the United States. With me is Kevin cCann with
A.T.F.
THE COURT: All right. And for the defendant?
S. HAWKINS: Good afternoon, Your Honor. Cynthia
Hawkins on behalf of the defendant, r. Efraim Diveroli, who
is seated to my right.
THE COURT: Okay. All right. Well, we're here
today for the continuation and, hopefully, conclusion of the
sentencing in this case. The last time we got together, we
had a significant amount of testimony and argument, and I
think we basically determined the guideline score and covered
the various legal and factual issues regarding the matter,
and then I wanted to take some time to think about it and to
review some of the legal issues involving this matter, which
I've done. So I appreciate y'all coming back.
So, before I proceed, is there anything else that
counsel wish to say or anything that I need to know that's
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Diane Peede, RMR, CRR (407) 615-0305
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not already on the table, so to speak?
R. RAVENEL: No, sir.
THE COURT: s. Hawkins?
S. HAWKINS: No, Your Honor. No. We're ready
to -- prepared to argue about variance at this point.
THE COURT: Okay.
S. HAWKINS: Shall I proceed, Your Honor?
THE COURT: Yes, please.
S. HAWKINS: ay it please the Court. The Court
has already determined the guidelines level, and we
acknowledge that. We understand that, but that, of course,
doesn't end the inquiry. At this point, as the Court is
aware, it has the discretion to grant a variance, and we're
going to ask the Court to do that based on the following
reasons: The first reason is that the six-level adjustment
for having the magazine overrepresents what this defendant
did.
He -- those weapons that the government brought to
the meeting could have -- they could have brought magazines
that had five or ten rounds in the magazines. Those come for
those -- they come with those kind of magazines, yet the
government chose to bring magazines that would handle 15-plus
rounds, and that's -- that was not the defendant's choice.
He did not bring the guns. He did not request the guns. He
did not bring the magazines. He did not request them.
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Diane Peede, RMR, CRR (407) 615-0305
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So, based on this, the six-level adjustment is
simply too harsh, because these were, of course,
semi-automatic weapons that the government brought. They
weren't fully automatic military assault-type rifles.
Before 2004, there was the assault weapons ban and
only ten rounds could be in a magazine or the weapons could
only fire ten rounds; and when that was changed, then,
of course, these other magazines became legal; but, again,
these were choices made by the government and not the
defendant.
The defendant maintains that he didn't see the
magazines. I understand we have the testimony here that the
Court has credited, and yet it's still a factor that that was
not his intent and he had nothing to actually do with it. He
didn't request them. He didn't even see them.
We understand that the defendant did go to the
range one time. That's been documented. He shouldn't have
done that, and he fired a weapon to test his magazines; but
the other time, it came out in the testimony, when he went to
the Everglades that he used a black powder rifle, which is
not an illegal weapon. He was entitled to use that.
So, given all of those facts together, it's our
contention that this is an atypical A.T.F. case. It is not
your typical A.T.F. case, Your Honor.
The Court's aware of the typical cases, having been
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Diane Peede, RMR, CRR (407) 615-0305
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on the bench as long as the court has, that there's no
financial gain that r. Diveroli intended to make by picking
up and putting back down these guns that the government
brought. He wasn't coming to the iddle District to sell
weapons. He wasn't coming to do anything violent or assist
in anything violent. He was coming to do what he perceived
to be a legitimate business deal with a legitimate
businessman, and when the agents and the government brought
the guns, he did pick them up and he did buy ammunition.
It's been our contention all along that that's the
gravamen of his offense, that he went to the Wal- art and
bought the ammunition that day. He did that. That's why --
I mean, he pled guilty, Your Honor.
This defendant waived speedy indictment. We came
in immediately. We said, "Look, don't do any work on this
case. He's going to plead. He's going to cooperate."
He waived speedy indictment. He waived speedy
trial. He waived everything. He's been cooperative. He did
not make the government work, Your Honor, because he knew
that he had to take responsibility for the ammunition and for
picking up those weapons, and he has done that.
So that's our position. It's not a typical A.T.F.
case, particularly because the agent provided the weapons and
not at his request, as well as the magazines.
Also, a reason for a variance in this case, Your
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Diane Peede, RMR, CRR (407) 615-0305
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Honor, is that the three levels for the enhancement for
committing the offense while on bond is a little steep in
light of the fact that it was the agents, by their own
admission, and this is in the P.S.R. and we even heard some
tape-recordings about it, they persuaded him to come to the
iddle District and he demurred at first. The agent admitted
it when I asked him, as you may recall, "Did you know that
would violate his bond in the Southern District," and he
said, "Yes," yet he still pushed.
y client wanted to -- he said, "Come down to
iami. Come to Fort Lauderdale. I'll meet you in, you know,
Jupiter," several times, but the agent kept saying, "No. You
need to come up here."
So we would ask that there be a variance from that
three levels as well.
Other factors, Your Honor: The relative youth of
r. Diveroli, the fact that he had just horrible addictions
to drugs and alcohol and gambling that really resisted
treatment. I mean, he was inpatient several times. But,
finally, and as I think his mother said, she was glad that he
got put in jail this time, because she knew he was alive.
And he's spent over a year in jail now, Your Honor,
being clean. He's been getting treatment for his mental
problems. He's a completely different person than the person
that first -- I first met when I met him in the lockup in the
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Diane Peede, RMR, CRR (407) 615-0305
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Orange County Jail. He's come a long way and it was -- and
he really needed that. And as his mother told the Court, the
call that we heard between he and his father was early on.
That was when he was down in iami. That's been eight or
nine months ago, at least.
THE COURT: No. He was here.
R. RAVENEL: He was in the Orange County Jail.
S. HAWKINS: Okay. I'm sorry. I misread the date
on that one, but it's been some time ago.
THE COURT: Well, remember the guy from Orange
County testified.
S. HAWKINS: Yes, sir, I remember that now. aybe
it was right after he got back, but I know it's been some
time ago. And my point being that his mother indicated that,
just in her conversations with him on the phone and in
person, that from when he first got arrested and locked up on
this case, how it's changed dealing with him. He's just
calmed down. He's -- he's just been very responsive to her
and expressed his remorse many, many times. So he -- that's
another factor. He does have strong family support, Your
Honor.
And in that call to his father, it's pretty clear
he has a different relationship with his dad than he does
with his mom; but the way that we interpret that call was
that he was trying to get his dad to cooperate with the
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Diane Peede, RMR, CRR (407) 615-0305
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agents and that's what he was saying. "I want you to do
something legal. It's with the government. ake the call."
And even the agent that I questioned admitted that
he had heard that Chang was being investigated. He didn't
know exactly for what or how much effort was being put into
it at that time.
That's all he was trying to do. Of course, he was
very agitated and rude; but the Court may recall at the end
of the call when he spoke with his little brother and he was
very sweet to him. So this is a person that is capable of
being a good and -- a person going out there and working hard
and paying taxes and trying to contribute to society. He has
good qualities, Your Honor. This is the first time he's ever
been in jail, and it's worked for him. It was the right
thing, and he knows that now.
On the issue of concurrent as opposed to
consecutive sentence, Your Honor, one of the major points
that stands out in our review of the cases, if the Court
gives a concurrent sentence, he will be able to be admitted
to drug and alcohol treatment. If he gets additional time on
a gun case -- because gun cases make a difference in your
acceptance into that program. His other conviction is the
contract out of the Southern District, the unjust enrichment
theory of fraud that they had. And if he gets time on the
gun count, we're very concerned that he will not qualify for
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Diane Peede, RMR, CRR (407) 615-0305
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drug and alcohol treatment, because he would be doing time --
what they look at is they look at what are you serving time
for? What is your offense that you're serving time for?
If it's a gun offense, that may very well
disqualify him from placement in those programs, and we're
very concerned about that.
He has been in jail on this case for a year, over a
year now.
Also, the length of the sentence matters a lot
here, because, at least in my estimation, and I'm sure the
Court has its own opinion, but there seems to be a fairly
good likelihood that the Southern District of Florida case
could be reversed. They've granted the co-defendant that
went to trial an appeal bond, and -- the Eleventh Circuit
Court of Appeals. And it's a very novel theory that they
have in terms of the fraud. Even in the 2008 Congressional
report that the government filed, there's indication there
that the ambassador in Albania knew this was Chinese
ammunition.
So you can tell that there's a problem with the
case when you have 100-something counts and you let somebody
plead to one five-year count.
So my suggestion is that that case very well could
go away. So the length of this sentence matters a great,
great deal to this defendant.
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THE COURT: How would that affect his sentence?
S. HAWKINS: Well, it wouldn't affect his sentence
in this case, because -- I don't think, but I haven't
researched this recently, but because he was a convicted
felon when he picked up the guns at the time, I think --
THE COURT: How would it affect his sentence in
iami?
S. HAWKINS: Well, here's what I'm saying. Let's
say that the Court gave either a 46-month sentence here or a
14-month sentence here, and the iami case is vacated. He
gets -- it's the same count -- it's the same indictment
that -- that he's charged in.
If his co-defendant -- if the Eleventh Circuit says
as a matter of law that this does not constitute an offense
and they have freed him -- freed the co-defendant that went
to trial on an appeal bond, which is pretty rare, they vacate
that conviction. He files a 2255 and, I think, stands in
extreme -- if that's the holding, it could very well free him
on that case and that conviction could be reversed.
I say that -- that's why I filed errill's pleading
in that case, so the Court could see there were some very
real issues that could very well lead to that. And I think
there's -- you know, in my reading of the iami indictment,
there's a very real possibility that their theory of fraud
won't fly. It's very unusual. It's a novel theory.
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Diane Peede, RMR, CRR (407) 615-0305
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y point is this, that if the case is vacated and
he is able to vacate his sentence, the difference -- I was
saying, what difference does it make if it's concurrent?
It's 30 months or 16 months. It could make a real big
difference to him in the future if that happens. So I bring
that point up to the Court.
I know the Court would fashion a sentence on this
case -- specifically on this case alone on this offense, but
I just bring that out as something to consider.
THE COURT: Well, as we discussed the last time, I
think that one of the difficult decisions I need to make here
is to what extent should any sentence I give in this case be
consecutive? I mean, that's clearly an issue that is on the
table and is something we need to deal with.
S. HAWKINS: Yes, sir. And actually that was my
next point. The case that I cited in my memo, the Royer
case, I went back and looked at it, and what I was saying at
page 905, there were two indictments there. Actually, this
Court was sentencing, I believe, the defendant on both of
them at the same time. So it's a slightly different fact
pattern. But at page 905, the court -- the appellate court
said this sentence will stand, because what the judge did in
this case was give a three-level concurrent sentence on the
first indictment, but ran that sentence completely -- I mean,
it gave a three-level consecutive sentence on the first
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Diane Peede, RMR, CRR (407) 615-0305
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indictment, but then ran that entire sentence concurrent with
the second indictment.
That was my point that I was trying to make was,
that if the Court decides to impose a concurrent sentence
and -- as I believe the Court is anticipating. We're asking
that it not be three levels, for the reasons I've already
outlined; but if the Court does impose some concur --
consecutive sentence in this case, that that consecutive
sentence not be consecutive to the iami case. And that's
what the Royer case says you can do, because that's what they
did; and the Second Circuit said that's -- that's okay.
That's a legal sentence.
Can I answer any question about what I'm saying?
The Court looked like it might have a question.
THE COURT: No. I think you've covered it.
S. HAWKINS: Okay. There are, again -- as I
stated the last time, there are a couple of cases in older
cases. The Royer case is 2008. There are a couple of older
cases from 1992 in the -- I think the Ninth Circuit and the
Eighth Circuit that are contrary to that. But this is the
latest case on the subject in terms of being able to run the
two indictments, total sentences, concurrent; and I didn't
find anything in the Eleventh Circuit.
And, again, we're asking that the -- another reason
that the cases -- the iami case and the sentence in this
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Diane Peede, RMR, CRR (407) 615-0305
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case be run concurrent -- two good reasons: One, Probation
did recommend in their written recommendation that these
sentences be concurrent, which we concur with; and, secondly,
they shouldn't be consecutive, that is, the iami sentence
and the Orlando sentence, they should not be consecutive
because of the -- the -- some of the actions by the agents in
persuading the defendant to violate his bond and by bringing
the guns to the meeting unrequested.
Now, one of the other points that I recall from
last week that I wanted to cover was the question of, you
know, there should be some punishment for this additional
offense; and I started to talk about that at the end of the
hearing last week and I said there has been. He has suffered
consequences for this particular offense. In addition to the
year in jail that he spent, he -- he lost his ability to
cooperate and receive the probationary sentence that his
co-defendants who cooperated in iami received, and that was
because of the arrest here.
He also has forfeited a million dollar bond.
That's in forfeiture now. They've already forfeited 100,000
of that, and they're suing -- there's litigation before the
court in iami to take the whole one million dollar in bond.
The P.S.R. indicates this defendant is virtually
bankrupt. So he hasn't been able to work, obviously. He
hasn't been able to do anything. So he has suffered some
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Diane Peede, RMR, CRR (407) 615-0305
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pretty direct consequences as a result of this arrest and his
offense in this case.
I think, just in conclusion then, unless there's
any question I can answer from the court about anything I've
said on a legal-type aspect, the Court heard r. Diveroli
speak directly to the Court last week; and sometimes the
lawyers can get up here and talk about whatever they want to
talk about and say, "Well, you know, he's sorry." But I
would just ask the Court to remember his presentation and
what he said and how he said it last week.
This is a person who has genuine remorse and he
knows he did wrong. He knows that he's trying to change. He
says the person that he was is either dead or almost dead;
and he is a different person, Your Honor. He's already
changed quite a bit. He's been in jail for over a year.
He is redeemable. He has good qualities. He's
been a charitable person. I gave those documents to the
court. Even this is before he was in this any trouble, going
back to 2007 or even earlier. He, you know, paid for one of
his employees -- $10,000 for a funeral for the parent. I
mean, he did try to help people. He can be redeemed. He has
good qualities, and we ask the Court to factor that in and
show some mercy to this defendant.
We would ask that the Court vary at least eight
levels from the guidelines, based on all of those factors
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Diane Peede, RMR, CRR (407) 615-0305
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that I discussed. Thank you, Your Honor.
THE COURT: All right. Thank you, s. Hawkins.
S. HAWKINS: Yes, sir.
R. RAVENEL: ay I respond, Your Honor?
THE COURT: Sure.
R. RAVENEL: I'll take her points in order, Your
Honor. With respect to a variant sentence, we don't think
that's appropriate in this case. Her first argument was
regarding the magazine -- the magazines that were brought
along with the firearms.
The agent testified that those magazines were
consistent with magazines that are typically used with those
weapons. I believe the agent testified that he wasn't aware
of magazines being manufactured for those weapons that were
smaller than what the sentencing guidelines would set forth
as high-capacity magazines or at least that they were the
type of magazines that you would expect to be manufactured
with those guns. So it wasn't like he selected magazines
that were bigger than you normally would expect to be used
with those firearms.
You also know that those firearms were brought by
that undercover because they were consistent with the other
firearms that r. Diveroli mentioned liking to use. You know
that a week earlier he used an AR-15 with a 100-round drum
while he was on bond in the Southern District. He had
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Diane Peede, RMR, CRR (407) 615-0305
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essentially a couple guys he surrounded himself with that had
no idea what they were doing, he had them provide him
ammunition and weapons, at least one weapon, as a convicted
felon and endangered their lives by doing that.
He also was the first one to speak about shooting
with guns during the undercover's conversations with him. He
also invited the undercover to shoot a machine gun in the
Southern District of Florida. Had he been successful with
that, shooting a fully automatic machine gun, his guidelines
would have been higher than the guidelines he faces.
With respect to whether there was a legitimate deal
he was trying to enter into, we don't believe it was. He was
entering or attempting to enter into that transaction that
regarded items on the United States' munitions list that he
had another contract to import from Korea, something he could
not do as a banned party at the time.
Counsel mentioned his conduct in the judicial
proceedings. We don't believe that offers him any mitigation
in this case. You know that a little over a month after he
was sentenced in South Florida, after his attorney in this
case went down, represented to the court as an officer of the
court facts about his case which are inconsistent with the
facts in his Plea Agreement, essentially along the lines of
that he was entrapped and things of that nature and that he
had changed and, obviously, she couldn't know what he was
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Diane Peede, RMR, CRR (407) 615-0305
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going to say on the jail call a month later, but after that
presentation in South Florida, he received a two-level -- he
received his two points for acceptance of responsibility,
despite the fact that he committed a new crime and had other
bond violations, numerous bond violations, for substance
abuse, for leaving the District and for being arrested and
ultimately convicted of a new charge in another district that
he wasn't allowed to travel to.
Then you know a month later he calls his dad, and
we believe he attempts to encourage his father, the same
person that co-signed on that bond. And I notice counsel
said he had a different relationship with his father. Well,
the relationship was sufficiently strong to where the father
co-signed on that bond that's now forfeited. And he's
attempting to encourage his dad to do something that
certainly his dad didn't feel comfortable with, which appears
to be illegal.
Counsel's mentioned that so much of what he's done
is the product of addiction; but yet you know that since
October of 2010, he's been incarcerated and six months later
is when he placed that call to his father. And you saw his
demeanor, how he treated his father, and what he asked his
father to do.
Counsel mentioned that you should credit his
statement to the Court, and I would submit to you he's
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talking to you in the way he believes will get you to do
something for him, which is a reduced sentence, and that's
the same way he was talking to his father. He took a
different tact, but it was the same purpose. He talked to
his father in a way that he thought would encourage the
result that he wanted, and that's a reduced sentence.
Regarding consecutive/concurrent, the only issue is
whether you have to impose a consecutive sentence, and then,
depending on your determination of that, whether you should.
We've already submitted argument as to why we
believe a consecutive sentence is required. Certainly,
there's -- I can respect the Court's comments about the
application note to the guidelines. I don't think that's
particularly clear, but we think the statute is clear.
In any event, we don't think a concurrent sentence
is appropriate in this case. It's a different crime
altogether. You know he received two points for acceptance
in the Southern District, which is the maximum he could
receive without the United States Attorney moving for that
third point.
Since his conviction -- since his sentencing in the
Southern District, there's been no change. He's continuing
to try to manipulate people to benefit himself, which is what
got him in all this trouble in the first place.
With respect to the drug treatment, I would suggest
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that's just another ploy to get a reduced sentence, to allow
him to escape incarceration earlier than he would otherwise
be allowed to. And you know that six months of being
incarcerated hasn't affected his personality at all, based on
that jail call.
So, for those reasons, we'd ask you to sentence him
within the guidelines, 46 to 57 months, and that you sentence
him consecutive to the time for the unrelated crime in the
Southern District of Florida.
THE COURT: Anything else, s. Hawkins?
S. HAWKINS: No, Your Honor.
THE COURT: Okay. Well, as you know, I have had
some time to reflect on this, and I have -- in the context of
the sentencing, I've received a lot of information. In
addition to the P.S.R., I have all those documents that I
reviewed before the first sentencing, including the
correspondence and memoranda from counsel, counsel's argument
and testimony.
So, in terms of the determination of an appropriate
sentence, we obviously begin with the guideline score and use
that as a baseline for the overall process when we consider
the 3553(a) factors; and I have already determined and still
believe that the 22/II score is appropriate in this case.
With respect to the legal framework of the
guidelines and the statute, it seems to me that for the
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statute to be given any effect, a portion of this sentence
has to be consecutive to the iami sentence. I don't see any
other way to logically read the statute and the guidelines.
I do not agree, to the extent the government makes
this argument, that the entire sentence has to be
consecutive. I don't read the statute or the guidelines that
way either. As a matter of fact, that seems to be inherently
inconsistent with the policy statement.
Also, pursuant to 5(g)1.3(G), I think it's clear
that my sentence of r. Diveroli for the underlying offense
here can be concurrent to the iami sentence or consecutive
to it or a combination of those.
So that's the legal framework that I have
structured in my mind as being appropriate for the further
consideration of the 3553(a) factors.
So let me turn to those. Let me first discuss the
nature and circumstances of the offense. I don't think
there's any question but that firearms in this country are a
serious problem. Our country's efforts to deal with it have
resulted in a hodgepodge of legislation; but, clearly, the
defendant violated that law, and I take that violation as
being a serious one.
s. Hawkins argues that it was basically a
technical offense, that he simply picked up and looked at
guns that were brought to him by the government, by the
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Diane Peede, RMR, CRR (407) 615-0305
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government agent; and while that is true, the evidence also
shows that he, without much hesitation, bought a substantial
amount of ammunition and was using weapons with large-
capacity magazines.
I do not accept the argument that these magazines
were unusually large or used in a manner to set the defendant
up. y understanding of the evidence as well as my practical
knowledge of weapons is that these guns routinely and
normally carry a magazine that would qualify under the
guideline and the statute for large capacity.
So, you know, I think it's more than a technical
violation, but I do recognize as some mitigating factor the
fact that r. Diveroli allowed himself to get talked into
coming up here and was dumb enough to pick up guns that he
had no intention of shooting.
So, on balance, I think the offense is serious,
perhaps some slight mitigation in terms of my Booker
discretion.
Next, I turn to the defendant. Of course, the
offense and the defendant are generally captured in the
guideline score; but the case law is clear now that I need to
look at this particular offense and this particular defendant
as an individual and try to consider the complexity of
individual conduct and experience in determining an
appropriate sentence, and r. Diveroli is a difficult case.
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Diane Peede, RMR, CRR (407) 615-0305
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s. Hawkins argues that there are some mitigating
issues; and because I tend to be a somewhat of a positive
person, I generally look at everyone with a notion that there
is room for good in that person. That's just my nature. I
bring that to the bench, and I think the lawyers are well
aware of it.
Yes, he was young at the time, but somewhat
experienced as well. Yes, he was addicted to drugs and
gambling; but, on the other hand, you know, most of the
defendants I see here are people who are here, in large part,
because of the deprivation suffered in their early years.
r. Diveroli did not grow up in a deprived home.
He had the advantage of a good, strong family. He had the
advantage of the opportunity for a good education. He's
obviously intelligent. And he ended up throwing all that
away and betraying his family's trust in the process.
So it's hard to see that, as mitigation, I
recognize that he may have a good heart. He has engaged in
charitable work. And the real question to me comes down to,
who is the real Efraim Diveroli? Is it the one that talked
to me and expressed his remorse or is it the one we heard on
the telephone talking to his father in a manner that, as I've
said before, was shocking?
I don't know. I really don't know. I doubt that
r. Diveroli knows.
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Diane Peede, RMR, CRR (407) 615-0305
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He's a good salesman. He made a good bit of money
at a young age as a salesman, and maybe he was trying to sell
me. aybe he was being sincere. I hope it's the latter, but
I don't know.
So, in terms of the personal characteristics, it's
hard for me to, on balance, see a lot of mitigation. aybe
some. I'll give him some, based on his statements here in
court, that he is indeed a changed person. I hope that's the
case.
The other somewhat objective factor under the
statute is deterrence. Deterrence, to me, is basically a
mirror image of the seriousness of the offense. The more
serious the offense, the greater the need to deter others
from committing similar conduct.
Protection of the public from further crimes of the
defendant. You know, if the defendant can get control of his
life and his drug problem, I think he's smart enough to not
re-offend. I mean, that's just the logical way I look at it.
I think he's smart enough to know better; but that assumes
that he can control the demons that cause him to rely on
drugs and gambling, which obviously affect one's ability to
reason and act in a positive manner. So, there again, it's a
big if.
I think there's some mitigation there that we are
not going to need to protect the public from r. Diveroli
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Diane Peede, RMR, CRR (407) 615-0305
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again, that he's going to use his intellect and his talents
and his family support for positive endeavors in the future.
So there, I see some mitigation. I could be wrong. Again,
maybe that's part of my inherent optimism about humanity.
Then it comes down to -- I always come back to this
last, even though it's higher up in the statute itself, but
the parsimony principle of 3553(a) and the need to fashion a
sentence that promotes respect for the law and to provide
just punishment; and that, to me, sort of captures the entire
sentencing process, is an effort to do that.
Frankly, I believe it takes a human being to make
that judgment call; and I was always opposed to the mandatory
guidelines for that reason. It makes my job harder in some
ways, but I think that's the way we are made and the way it
needs to be done.
So, having said all that, I think that in terms of
concurrent/consecutive, that a sentence, a guideline
sentence, for example, of 46 months concurrent with iami
would do two things: One, it would not punish r. Diveroli
for this offense unless his iami conviction is later thrown
out, for some reason, which I think is a huge if; and,
secondly, it wouldn't give effect to the statute, 3147, which
clearly suggests that a three-level portion of this offense
should be consecutive, and that three-level portion is about
one year, twelve or thirteen months.
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Diane Peede, RMR, CRR (407) 615-0305
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So my sentence simply is this: A 48-month
sentence, which is a mid-guideline sentence, 24 of those
months to run concurrent with the iami sentence, 24 months
to run consecutive. And, for the record, if you need this
for any reason, the 24-month consecutive is broken down into
twelve months for the offense and twelve months for the
enhancement under 3147.
So, in essence, when you boil it all down, for this
offense, he's receiving one year in prison for the offense,
the weapons offense, and one year for having done it while he
was on supervision in iami.
I think, depending on your perspective, one could
view that sentence as harsh or lenient. I don't know, but
it's what I think is appropriate.
So, having considered all of this, it's the
judgment of the Court that the defendant, Efraim Diveroli, is
committed to the custody of the Bureau of Prisons to be
imprisoned for a term of 48 months, 24 months of which are
concurrent to the sentence imposed in iami and 24 months to
run consecutive to that sentence.
Upon release from prison, r. Diveroli, you'll be
placed on supervised release for a term of two years. The
mandatory drug testing requirements of the Violent Crime
Control Act are imposed; and, if you want, I will put in a
recommendation to the B.O.P. that you receive drug treatment,
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Diane Peede, RMR, CRR (407) 615-0305
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but that's up to you.
S. HAWKINS: Yes, sir, we do.
THE COURT: Okay. I'll make that recommendation.
While on supervised release, you must comply with
the standard conditions adopted by this court. In addition,
you must participate in a substance abuse program, follow
your Probation Officer's instructions in that regard.
Also, I'm going to require you to participate in a
mental health treatment program and follow your Probation
Officer's instructions as to that program.
You must cooperate in the collection of D.N.A.
The fine is waived. It is ordered that you pay the
United States a special assessment of $100, which shall be
due immediately.
Are there any asset forfeiture issues still
remaining?
R. RAVENEL: Just the items in the Plea Agreement.
THE COURT: All right. The items set forth in the
Plea Agreement therefore are forfeited to the United States.
This is a guideline sentence, and I think I've
explained my rationale for the concurrent/consecutive aspects
of it.
The Court accepts the Plea Agreement.
The defendant is remanded to the custody of the
arshal to await designation by the B.O.P.
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Diane Peede, RMR, CRR (407) 615-0305
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Is there any objection to the sentence or to the
manner in which the Court has pronounced sentence?
R. RAVENEL: We would object to the concurrent
portion of the sentence, for the reasons I've stated.
THE COURT: Okay. s. Hawkins.
S. HAWKINS: We would preserve our previously made
objections.
We would also request a recommendation to the
B.O.P. for iami or, if not iami, some other area in
Florida.
THE COURT: I'll recommend South Florida. How
about that?
S. HAWKINS: Yes, sir.
THE COURT: All right. r. Diveroli, to the extent
permitted by your Plea Agreement, anyway, you have the right
to appeal this sentence within 14 days from today or 14 days
from the date the judgment is recorded, whichever is later.
If you fail to appeal within that period, it'll be a waiver
of your right to appeal.
The government can also appeal from this sentence.
You're entitled to the assistance of counsel in
taking an appeal. If you cannot afford a lawyer, one will be
provided for you.
Is there anything else I need to address?
S. HAWKINS: No, Your Honor. Can I just add to
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what I said about my objection? I want to make sure it's
very clear and preserve any appellate rights. We
specifically object to the 24-month consecutive part of the
sentence and argue that that is -- it's not reasonable under
the particular facts of this case and/or inconsistent with
the case law.
THE COURT: And he's objecting to the 24-month
consecutive portion. So we've got all our bases covered.
S. HAWKINS: I think so.
THE COURT: All right. Thank y'all.
(Proceedings terminated at 2:15 p.m.)
- - - - - - - -
Reporter's Certification
I certify that the foregoing is a correct transcript from the
record of proceedings in the above-entitled matter.
s/Diane Peede, RMR, CRR Official Court ReporterUnited States District Court
Date: September 19, 2011 iddle District of Florida
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