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United States v. Gomez

May 11, 2009


The opinion of the court was delivered by: Paul S. Diamond, J.

Diamond, J.


On February 16, 2007, Defendant Reymond Gomez pled guilty to organizing a firearms straw purchasing conspiracy. In calculating Defendant's Guidelines offense level, I determined that because, after he was charged, Defendant threatened to murder a federal judge: (1) I would not apply a three-level reduction for accepting responsibility and timely pleading guilty under § 3E1.1; and (2) I would apply a three-level official victim enhancement under § 3A1.2. See U.S.S.G. §§ 3E1.1, 3A1.2(a) (effective Nov. 1, 2005). At Defendant's April 22, 2009 sentencing hearing, I stated that I would issue this Memorandum, so that I could more fully set forth the reasons for these determinations. See United States v. Vargas, 477 F.3d 94, 101 (3d Cir. 2007) ("[B]ecause district court judges render sentencing decisions orally and spontaneously from the bench after the presentation of numerous arguments, we do not expect them to deliver a perfect or complete statement of all of the surrounding law.") (quotations omitted).


On December 12, 2006, the grand jury charged Defendant with: conspiracy to make false statements to a federal firearms licensee (Count 1, 18 U.S.C. § 371); aiding and abetting the making of false statements to a federal firearms licensee (Counts 8-16, 18 U.S.C. §§ 924(a)(1)(A), (2)); and being a convicted felon in possession of a firearm (Count 32, 18 U.S.C. § 922(g)(1)). The charges stemmed from Defendant's operation of a firearms straw purchasing scheme. Defendant pled guilty to these offenses on February 17, 2007. (Doc. Nos. 96, 97.)

A. Defendant's Threat to Kill a Federal Judge

On August 7, 2006, Defendant appeared before the Honorable Arnold C. Rapoport for a detention hearing. Judge Rapoport granted the Government's Motion for Pretrial Detention and denied Defendant bail. (Doc. No. 11.) As Probation describes, during the defendant's first night on the [cell] block, he began talking with another inmate about his (Gomez's) case. The next day, the inmate ran into Gomez while the defendant was jogging around the cellblock. The defendant began talking about not wanting to do all the time he was facing in jail, and ab[o]ut having his bail denied. The defendant then stated "The next time I go over there, if I get the chance, I'm going to grab a U.S. Marshall's gun and shoot the Judge." Although the inmate told the defendant he was crazy, Gomez told the inmate he did not care. The defendant stated "I'm telling you."

PSIR ¶ 31.

After learning of Defendant's threat, the Government began an investigation. Gov't Supp. Br. at 2. While that investigation continued, Defendant indicated that he wished to cooperate with the Government. Gov't Supp. Br. at 2-3. The prosecutor informed Defendant that "to even consider any cooperation, [Defendant] would have to acknowledge [the threat]." Tr. Apr. 22, 2009 at 12. After signing a proffer letter, Defendant admitted both to committing the charged offenses and threatening to murder Judge Rapoport. Gov't Supp. Br. at 3.

B. The Plea Agreement

Defendant agreed to plead guilty to all charges, and, with the Government, stipulated that for the purpose of determining the defendant's Sentencing Guidelines range . . . [Defendant] shall be treated as if [he] had been convicted of an additional count charging this offense:

That while in Lehigh County Prison after the defendant was detained pretrial by a United States Magistrate Judge, the defendant did state that he wanted to steal the firearm of a United States Marshal to shoot the judge, in violation of 18 U.S.C. § 115(a)(1)(B).

Plea Agreement ¶ 10; see also 18 U.S.C. § 115(a)(1)(B) (making it a crime to "threaten[] to assault, kidnap, or murder a . . . United States judge . . . with intent to retaliate against such . . . judge . . . on account of the performance of official duties").

The Parties stipulated that Defendant's threat constituted obstruction of justice, qualifying for a two-level increase in offense level under § 3C1.1. Plea Agreement ¶ 11. Even though the Guidelines provide that if the obstruction enhancement applies, a reduction for acceptance of responsibility is allowed only in an "extraordinary case," the Parties also stipulated that Defendant was entitled to a three-level decrease in offense level because he had demonstrated an acceptance of responsibility and had timely notified the Government of his intention to plead guilty. See U.S.S.G. § 3E1.1, app. note 4; Plea Agreement ¶ 11.

C. Defendant's Initial Advisory Guidelines Calculation In its Presentence

Investigation Report, the Probation Department applied: (1) a base offense level of 20 (U.S.S.G. § 2K2.1(a)(4)(A)); (2) a four-level upward adjustment because the offenses involved between 8 and 24 firearms (U.S.S.G. § 2K2.1(b)(1)(B)); and (3) a four-level upward adjustment because Defendant was an organizer or leader of criminal activity that involved five or more participants (U.S.S.G. § 3B1.1(a)). PSIR ¶¶ 41-42, 44. In accordance with the Parties' stipulations, Probation applied a two-level upward adjustment for obstruction of justice and a three-level downward adjustment for acceptance of responsibility and timely pleading guilty. PSIR ¶¶ 45, 47. Probation also applied an additional three-level upward adjustment because Defendant's threat was motivated by Judge Rapoport's status as a government officer. U.S.S.G. § 3A1.2(a); PSIR ¶ 43.

Defendant objected to the three-level enhancement under ยง 3A1.2, arguing that: (1) it constituted impermissible double counting because it was based on the same conduct as the obstruction enhancement; and (2) it contravened the Plea Agreement, which did not contemplate any additional enhancement based on Defendant's threat. PSIR at 26-27. Defendant further argued that the enhancement was inappropriate because the Government "never indicted the defendant for ...

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