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United States v. James

November 16, 2006

UNITED STATES OF AMERICA,
v.
JOHN A. JAMES, JR. AND JESSEY COLON, DEFENDANTS



The opinion of the court was delivered by: Judge Jones

MEMORANDUM AND ORDER

On July 25, 2006, pre-sentence conferences were held in the above-captioned matters with counsel for the Government and individual counsel for the Defendants in attendance. At the conference, the Government interjected an objection to the calculation of the Defendants' base offense levels in the respective pre-sentence investigation reports ("PSR"). The Government argued that U.S.S.G. § 2K1.2(b)(5) was applicable and a corresponding four-level enhancement to the Defendants' offense levels should be applied. On August 25, 2006, a sentencing hearing was held in the above-captioned matters regarding the potential enhancement pursuant to §2K1.2(b)(5). Following the hearing, the Government and Defendants filed submissions regarding the applicability of §2K1.2(b)(5).*fn1 For the following reasons, we shall sustain the Government's objection and apply §2K1.2(b)(5) to the Defendants' base offense levels.*fn2

FACTUAL BACKGROUND/PROCEDURAL HISTORY

On April 3, 2006, Defendants John A. James, Jr. ("James") and Jessey Colon ("Colon") appeared before this Court and pled guilty to Count Three of the Indictment filed in this case, which charged them with a violation of 18 U.S.C. § 922(j) and (2), aiding and abetting the possession and disposition of stolen firearms and ammunition. The charges against the Defendants stemmed from a January 29, 2005 burglary and theft of firearms from Ackley and Sons, a federally licensed firearms dealer, in Tioga County, Pennsylvania.

At the previously referenced sentencing hearing, the Government introduced Government Exhibit 1, which was an extremely detailed statement of the offense conduct committed by Defendants James and Colon and their three co-Defendants. John Malloy ("Malloy"), Joseph Wojtiw ("Wojtiw"), and John Malkowski ("Malkowski"). For the purposes of this Memorandum and Order only a brief summary of the offense conduct, particularly as it relates to James and Colon, is necessary.

After committing the burglary and theft of one hundred and eighty eight (188) firearms at Ackley and Sons on January 29, 2005, the five Defendants traveled to Philadelphia. The firearms and ammunition were transported by them to a leased garage in Philadelphia where the serial numbers were ground off the firearms by Malloy and Wojtiw. James received, from Wojtiw, two Glock handguns with obliterated serial numbers and $1,000.00 in cash. Colon received, form Wojtiw, one handgun with an obliterated serial number and $3,000.00 in cash. The balance of the weapons were distributed to the other co-Defendants and to an individual in Philadelphia.

DISCUSSION

§2K1.2(b)(5) states as follows:

If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels. If resulting offense level is less than level 18, increase to level 18.

Accordingly, §2K1.2(b)(5) is applicable in two distinct circumstances:

(1) where the defendant possessed the firearm in connection with another felony offense, and

(2) where the defendant possessed or transferred the firearm knowing, intending or having reason to believe it would be used or possessed in connection with another felony offense.

The Government concedes, and we wholly agree, that the first clause of the subsection is not applicable because although possessing a firearm with an obliterated serial number is a felony offense in violation of 18 U.S.C. §922(k), the Probation Officer has already applied a two-level enhancement to the James and Colon's base offense level pursuant to §2K1.2(b)(4) for their own prohibited possession of the weapons. The Government recognizes that to add an additional four-level enhancement by construing the possession of the firearms with obliterated serial numbers as "another offense" under §2K1.2(b)(5) would be an impermissible double-count under the Sentencing Guidelines. Therefore, for the four-level enhancement pursuant to §2K1.2(b)(5) to apply to James and Colon's base ...


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