The opinion of the court was delivered by: Katz, Senior District Judge
On September 30, 1997, defendant Wael Rafeh pled guilty to one count of conspiracy to distribute cocaine, one count of fraudulent cloning of cellular phones, and two counts of filing false income tax returns. On October 22, 1999, this court sentenced Mr. Rafeh to time served followed by five years of supervised release and ordered him to pay the $250.00 special assessment. Defendant began his current term of supervised release on October 22, 1999.
Now before the court is a Petition for Revocation of Supervised Release prepared by the Supervised release Office on July 15, 2003. Upon consideration of the submissions of the parties, and after a hearing, the court makes the following findings of fact and conclusions of law.
1. A special condition of defendant's supervised release was that he not possess a firearm.
2. On July 7, 2003, defendant was arrested by the Philadelphia Police Department and charged with aggravated assault, carrying a firearm without a license, possessing an instrument of crime, simple assault, recklessly endangering another person, and terroristic threats.*fn1 These charges arise from a dispute with a customer at defendant's store, during which defendant displayed an automatic weapon.
3. After the July 7, 2003 incident, the Philadelphia Police seized from defendant a 9 mm Taurus automatic handgun loaded with five live rounds. Defendant admitted to the Probation Office that he retrieved a gun from a file cabinet at the store during the dispute with the customer. Defendant stated that his brother-in-law owned the gun.
1. Revocation of supervised release is governed by the provisions of 18 U.S.C. § 3583 (e). In determining the modification of supervised release, the court is to consider the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583 (e). These factors include the nature and circumstances of the offense; the history and characteristics of the defendant; and the need for the sentence to deter the defendant and others, protect the public, and rehabilitate the defendant. See 18 U.S.C. § 3553 (a). The court should also consider the kinds of sentences established for the offense, relevant policy statements, and the need to avoid unwarranted sentence disparities among defendants with similar records. See id.
2. If, after considering the foregoing factors, the court finds by a preponderance of evidence that the defendant has committed the violations alleged, the court may, inter alia, continue him on supervised release; extend the term of supervised release, or modify or enlarge its conditions; or revoke supervised release. See 18 U.S.C. § 3583 (e).
3. Chapter Seven of the U.S. Sentencing Guidelines also applies to supervised release in this case. The Sentencing Guidelines' treatment of revocation of supervised release is advisory rather than mandatory. These policy statements are only one factor the court shall consider in addressing modification of supervised release. See United States v. Schwegel, 126 F.3d 551 (3d Cir. 1997) (holding that supervised release provisions remained advisory after amendments to 18 U.S.C. § 3583).
4. The Supervised release Office's petition and evidence presented at the hearing established by a preponderance of the evidence that defendant has committed the following violation of supervised release: defendant violated the condition that he not possess a firearm, constituting a Grade B violation. See U.S.S.G. § 7B1.1 (a)(3).
5. According to the Guidelines, the court may, upon a finding of a Grade B violation the court shall revoke probation or supervised release. Id. § 7B1.3 (a)(1).
6. Under the Sentencing Guidelines, the recommended range of imprisonment is 4 to 10 months, as Mr. Rafeh's criminal history category is I and he has committed a ...