Waco Sentencing Memorandum






v. : Criminal No. W-93-CR-046









RENOS AVRAAM (11), and :


Defendants. :


On February 28, 1993, an American tragedy of epic proportions

took place near the community of Elk in Central Texas. The

following sets forth the Court's findings, made by a

preponderance of the evidence.

On, before, and after February 28, serious mistakes were made.

Defense arguments at trial were that serious mistakes in

judgment, particularly whether to proceed with execution of the

search warrant after the element of surprise had been lost, were

made by some in leadership roles of the Bureau of Alcohol,

Tobacco and Firearms. Those allegations are not before this Court

in this case, and are not deemed relevant in determining issues

now before the court.

The mistakes made by the Defendants now before the Court, and

their co-conspirators, however, were serious violations of

federal criminal law, and resulted in the homicide of four young

agents, the injury of numerous other agents, and the deaths of

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numerous residents of the building referred to during the trial

as the "Compound."

These Defendants, and other adult Branch Davidians, engaged in a

conspiracy to cause the deaths of federal agents. It was a part

of the beliefs of the Branch Davidians, expressed and taught by

their leader, that they must bring about a violent conflict with

federal agents, thereby forcing the agents to use deadly force

against them, and by dying in the ensuing battle to be

"translated" immediately to Heaven.

To this end, immense preparations were made. Huge sums were

fraudulently charged to many credit cards in order to acquire an

armory that would rival that of a National Guard unit's;

ammunition in an unbelievable quantity was acquired; para-

military uniforms and gear were purchased and created by Davidian

seamstresses; firearm training and fortification of the Compound

took place; the leader preached sermons to motivate his "army";and

finally preparations for the ambush of February 28 were completed.

At about 9:00 a.m. on that fateful morning, as agents attempted

to execute a lawful search warrant, the first shots were fired

from inside the front door of the Compound, wounding Agent

Ballesteros in his hand. Immediately thereafter, countless shots

were fired from many locations in different areas of the

Compound, and a gun battle lasting approximately two and one-half

hours ensued.

Thereafter, for 51 days these Defendants and their co-

conspirators defied federal authority and refused to surrender.

Finally, by a combination of suicide and murder inflicted by

Davidian upon Davidian, all but a handful of the Davidians were


Defendants Branch, Whitecliff, Castillo, Fagan, and Avraam stand

convicted of aiding and abetting in the voluntary manslaughter of

four federal agents, and in using or carrying a firearm during

the commission of an act of violence. Defendant Craddock stands

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convicted of possession of an unregistered grenade and in using

or carrying a firearm during the commission of an act of

violence. Defendant Riddle stands convicted of using or carrying

a firearm during the commission of an act of violence. Defendant

Fatta stands convicted of two counts of possessing illegal


The primary issue to be determined is whether the mandatory

consecutive sentence to be applied to the "using or carrying"

count is five years or 30 years. No previous decision deciding

this issue can be located by the Court or by counsel. Both the

Defendants and the Government have offered able briefs to aid the

Court in this determination. The task faced is to determine what

answer the Fifth Circuit Court of Appeals would give, in the

first instance and the Supreme Court, if it elects to answer, in

the second instance. This Court must decide this legal issue

without being influenced by the result that will be mandated, and

then apply the Sentencing Guidelines.

The first question to be answered is whether the Defendants can

be charged with using or carrying an enhanced weapon. Obviously,

Graeme Craddock was convicted of possessing an explosive device.

The others, however, were not, but there was credible evidence

that Riddle and Castillo actually possessed an enhanced weapon.

(There is no evidence that any short-barrelled firearms were


By its verdict convicting the Defendants of violating Section

924(c)(1), the jury found that they were members of a conspiracy

to murder federal agents and that they used or carried a firearm

during and in relation to this crime of violence. To determine

the appropriate sentence to impose, it is incumbent upon the

Court to determine the facts as to the type of firearm or

destructive device used or carried by the Defendants by a

preponderance of the evidence. _McMillan v. Pennsylvania_,

477 U.S. at 91; _United States v,_

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_Casto,_ 889 F.2d 562, 570

(5th Cir.); _cert. denied_, ____ U.S. ____, 110 S.Ct. 1164

(1989). Under the statute, the term "used" is not confined to

situations where a court must find actual or constructive

possession. _United States v. Long_ 905 F.2d 1572, 1576 & n. 6

(D.C. Cir.) ("use is properly susceptible of a broader

interpretation than "carry"), _ cert. denied_, ___U.S.___, 111

S.Ct. 365 (1990); _United States v. Edun_, 890 F.2d 983, 987

(7th Cir. 1989).

In its most widely understood application, the terms "used" or

"uses" embrace the discharge of, assault with, or brandishing of

a firearm during the commission of a felony or to avoid subsequent

arrest. _See_, _e.g._, _Busic v. United States_, 446 U.S. 398

(1980) (attempted robbery at gunpoint and discharging pistol in

battle with DEA agents); _United States v. Molina-Uribe_, 853

F.2d 1193 (5th Cir. 1988)(killing undercover DEA agent with his

own weapon during a drug buy), _cert. denied_, 489 U.S. 1022

(1989); _United States v. Alvarez_, 755 F.2d 830 (11th Cir.)

(killing one undercover ATF agent and wounding another during

drug transaction), _cert. denied_, 474 U.S. 905 (1985); _United

States v. Chilcote_, 724 F.2d 1498, 1505 (11th Cir.)(pointing

pistol at DEA agent attempting to effect arrest), _cert. denied_,

467 U.S 1218 (1984). The courts have, however, repeatedly held

that a "defendant can use a firearm within the meaning of [ASCII

character 21, paragraph symbol, deleted] 924(c)(1) without

firing, brandishing or displaying it." _United States v. Ross_,

920 F.2d at 1536, quoting _United States v. McKinnell, 888 F.2d

660, 674-75 (10th Cir. 1989); _United States v. Thomas, 12 F.3d

1350, 1361-62 (5th Cir. 1993) (firearm found in a zippered bag in

second floor closet) _see_ _e.g._, _United States v. Brown_, 915

F.2d 219, 225 (6th Cir. 1990); _United States v. Lyman_, 892 F.2d

751, 753 (8th Cir. 1989) (quoting legislative history), _cert.

denied_, ___ U.S. ___, 111 S.Ct. 45 (1990); _United States v.

Rosado_, 866 F.2d 967, 969 (7th Cir.), _cert. denied_, ___ U.S.

___, 110 S.Ct. 117 (1989).

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In fact, where firearms are not found on the person of the

Defendant, but are found on the premises "readily available in

strategic locations," the courts have applied the "fortress

theory" in sustaining convictions and sentences for violations of

Section 924(c)(1). _United States v. Wilson_, 884 F.2d 174, 177

(5th Cir. 1989) (where predicate offense was a drug violation);

_United States v. Robinson_, 857 F.2d 1006, 1010 (5th Cir. 1988)

(same); _see United States v Matra_, 841 F.2d 837, 843 (8th Cir.

1988) (same). In the above cases, the evidence established that

the firearms were intended to protect drugs or otherwise

facilitate drug transactions, and accordingly, the firearms were

considered to have been used by the defendant(s) "during and in

relation to" the underlying drug trafficking crime.

In _Matra_, the defendant argued that the language of {ASCII

character 21, paragraph symbol, deleted} 924(c)(1) precluded

conviction unless the United States established that the defendant

actually possessed weapons during the drug transaction. In

rejecting such a narrow interpretation of {ASCII character 21,

paragraph symbol, deleted} 924(c)(1) the Court of Appeals for the

Eighth Circuit used a military analogy to support its holding. As

the Court noted, military installations keep weapons readily

available to defend against potential enemy attack; so, too, may

weapons be kept ready to protect a drug house, thereby

safeguarding and facilitating illegal drug transactions. Matra's

house was described as a veritable fortress, having only one

usable entrance, which could easily be guarded from a second-

story window. The Court found that although Matra did not have

actual possession of the machinegun or the other firearms, he did

have ready access to them. Even though Matra did not brandish or

discharge a weapon, the court concluded that the weapons were an

integral part of his criminal undertaking and their availability

increased the likelihood that the criminal undertaking would

succeed. In the court's view, it would defy logic and common

sense to

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conclude Matra did not "use" the machinegun within the

meaning of 924(c)(1) during and in relation to his underlying offense.

Such reasoning would clearly be applicable to the facts in this

case. The evidence established the existence of not only a

figurative but a literal fortress, manned by each of the

Defendants convicted on this count. Each either had actual or

constructive possession of the numerous fully automatic weapons

and hand grenades present in the Compound before February 28,

1993 and through the 51 day siege.

The Court heard the evidence at trial and recalls that from the

ashes throughout the Compound and the vehicles immediately around

it, 48 machineguns were found--46 complete firearms and 2 modified

lower receivers. An examination of these and other weapons found

at the Compound and admitted into evidence establishes that many

of these weapons were equipped with silencers. Additionally, four

live hand grenades -- destructive devices under Section 924(c) --

and numerous exploded fragments were discovered in the search of

the Compound after the fire. The testimony established that all

of these Defendants stood guard, with orders to fire should the

FBI agents attempt entry, and that guns were available at each

guard position. Numerous witnesses testified to the use of

automatic weapons during the February 28th firefight with ATF

agents and that was corroborated by the identification by Special

Agent James Cadigan, a firearms expert, of fully automatic weapon

fire on the video recordings made on that date.

The fortress theory demonstrates by analogy that when evaluating

whether a firearm was carried in relation to an offense, a

defendant's intentions as he engaged in the precise conduct that

comprised the predicate offense should not be the sole focus.

_United States v. Brown_, 915 F.2d 219, 224-25 (6th Cir. 1990).

Rather, the totality of circumstances

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surrounding the commission

of the crime must be examined:" the emboldened sallying forth,

the execution of the transaction, the escape, and the likely

response to contingencies that might have arisen during the

commission of the crime." _Brown_, 915 F.2d at 226. In fortress

type cases, the sheer volume of weapons makes reasonable

the interference that the weapons involved were carried in

relation to the predicate offense since they increase the

likelihood that the offense will succeed. _Wilson_, 884 F.2d at


Additionally, a defendant may be convicted of a violation of

{ASCII character 21, paragraph symbol, deleted} 924(c)(1) under

the doctrine of _Pinkerton v. United States_, 328 U.S. 640

(1946), where a co-conspirator carried a firearm in the

furtherance of the criminal scheme and that action was reasonably

foreseeable. _United States v. Elwood_, 993 F.2d 1146, 1151 (5th

Cir. 1993) (defendant convicted of Section 924(c) violation where

his codefendant carried the weapon). _United States v. Capote-

Capote_, 946 F.2d 1100, 1104 (5th Cir. 1991)(defendant found to

have possessed machinegun even though not present in area where

it was found). _See_ _United States v Johnson_, 886 F.2d 1120,

1123 (9th Cir. 1989), _cert. denied_, 494 U.S. 1989 (1990);

_United States v. Golter_, 880 F.2d 91, 93-94 (8th Cir. 1989);

_United States v. Gironda_, 758 F.2d 1201, 1214 (7th Cir.),

_cert. denied_, 474 U.S. 1004 (1985); _see also_ _United States

v. Cummings_, 937 F.2d 941, 944 (4th Cir.) (collecting cases),

_cert. denied_, ___ U.S. ___, 112 S.Ct. 395 (1991).

The evidence at trial established and the Court finds that

Defendants Ruth Riddle and Renos Avraam had actual possession of

a machinegun between February 28th and April 19th and that Graeme

Craddock had actual possession of a destructive device on April

19th. It was further established that the weapons were displayed

openly at the "chapel" and actually issued to members with all

the "congregation" present. Weapons and violent confrontation

were an integral part of the Message, and they were actually used

to confront

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and repel law enforcement agents on February 28th

and April 19th. Consequently, all of the Defendants convicted on

Count Three should be held accountable under _Pinkerton_ for

using and carrying machineguns, destructive devices and silencers

during their conspiracy to murder federal officers.

Next, the jury, by convicting on Counts Three, Seven, Nine and

Ten, found that some of the Defendants used or carried 30-year

enhanced weapons during the period of the conspiracy, and the

Court concurs.

As already mentioned, there were numerous machine guns, hand

grenades and silencers found in the ashes of the Compound; an

expert witness clearly identified automatic weapon fire from the

video tape admitted in evidence; and the agents on the scene

corroborated these facts.

Finally, it is clear that the use of fully automatic weapons,

and probably grenades and silencers, was foreseeable and foreseen

by all of the Defendants, who were taught, who planned, and who

practiced for just such an outcome.

Accordingly, the Court finds that those Defendants did, for

sentencing purposes, use and carry such enhanced weapons.

The second question is whether the portion of 924(c)(1) that refers to enhanced

weapons is an enhancement provision or a separate offense. The

statute is as follows (for a first-time offender of this


(c)(1) Whoever, during and in relation to any crime of

violence or drug trafficking crime (including a crime of

violence or drug trafficking crime which provides for an

enhanced punishment if committed by the use of a deadly

or dangerous weapon or device) for which he may be

prosecuted in a court of the United States, uses or

carries a firearm, shall, in addition to the punishment

provided for such crime of violence or drug

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trafficking crime, be sentenced to imprisonment for five

years, and if the firearm is a short-barrelled rifle,

short barrelled shotgun to imprisonment for ten years and

if the firearm is a machinegun, or a destructive device,

or is equipped with a firearm silencer or firearm muffler,

to imprisonment for thirty years ...

The Defendants primarily rely on _United States v. Correa-

Ventura, 6 F.3d 1070 (5th Cir. 1993) and in particular footnote

35, which states:

We do note (without deciding) that a different situation

may be presented when the evidence tends to prove the use

of more than one weapon, and the firearms proven fall within

different classes of Section 924(c)'s proscribed weapons. For

example, if a firearm violation is asserted, and evidence is

introduced as to both shotguns and rifles (with a mandatory

5-year imprisonment penalty) and revolvers with silencing

equipment (resulting in a 30-year imprisonment), the jury

may well be required to agree on which type of weapon was

used in order for the court to assess the appropriate

penalty. In that instance, a unanimity instruction as to

the class of weapon may be necessary, since the legislature,

in amending Section 924(c) to provide varying penalties for

certain classified firearms, appears to have indicated its

intent that a unanimous verdict be reached with respect to

the given class of firearms. _United States v. Sims_, 975

F.2d 1225, 1235-36 (6th Cir. 1992), _cert. denied_, ___

U.S. ___, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993).

It is argued that it is simply contrary to fair play for there

to be no requirement that a jury determine whether a weapon used

or carried was an enhanced one, especially when the punishment

increases from 5 years to 30 years. Title 21, section 841

however, contains enhancing provisions based on the quantity of

controlled substances involved, and the quantity can increase the

sentence to a mandatory minimum of 20 years or a mandatory life

sentence if a death or serious bodily injury occurs or if the

defendant has two previous convictions under that section. These

provisions are clearly sentence enhancing provisions, and are as

profound in their impact as is 924(c)(1). _United States v.

Royal_, 972 F.2d 643

page 9

(5th Cir. 1992).

It should be pointed out that {ASCII character 21, paragraph

symbol, deleted} 924(c)(1) (then entire statute) does define a

separate crime and is not merely an enhancement provision.

_United States v. Correa-Ventura_, 6 F.3d 1070, 1083 n.22 (5th

Cir. 1993). That premise was the basis of this Court's Order

validating Count Three despite the absence of a guilty finding

on Count One. Section 924(c)'s dependence upon an underlying

crime (in most cases), however, "contributes to the appearance

that it is akin to a penalty enhancement provision." _Correa-

Ventura_ at 1083.

The Supreme Court recently set forth the elements of an offense

under 18 U.S.C. 924(c)(1):

Section 924(c)(1) requires the imposition of specified

penalties if the defendant, `during and in relation to any

crime of violence or drug trafficking crime[,] uses or

carries a firearm.' By its terms, the statute requires the

prosecution to make two showings. First, the prosecution

must demonstrate that the defendant `use[d] or carrie[d] a

firearm.' Second, it must prove that the use or carrying was

`during and in relation to' a `crime of violence of drug

trafficking crime.'

_Smith v. United States_, 113 S.Ct. 2050, 2053 (1993).

Under the plain language of the statute, and the Supreme Court's

determination of the elements, the type of weapon is not an

element of the offense. 1 Because _Smith_ involved a machinegun,

the Supreme Court could have incorporated the type of firearm as

an element of the offense, but did not do so. The Supreme Court

just stated that the sentence for this offense is five years,

"[a]nd where, as here, the firearm is a `machinegun' or is fitted

with a silencer, the sentence is 30 years." _Smith_ at 2053.


1 It should be noted, however, that because the defendant in

_Smith_ was actually indicted for and convicted of using or

carrying a machinegun during a drug trafficking crime, the

particular issue facing this Court was not presented. The

indictment alleged that the defendant "knowingly used the

MAC-10 and its silencer during and in relation to a drug

trafficking crime." _Smith_ at 2053.

page 10

As recently as March 10, 1994, the Fifth Circuit accepted this

two part test enunciated by the Supreme Court, and noted that

_only_ those two elements are required. _United States v.

Singleton_, 16 F.3d 1419, 1423 (5th Cir. 1994) (citing _Smith_).

It is axiomatic that a legislature may establish various factors

which, should the sentencing court find to exist, subject a

defendant convicted under the statute to a minimum mandatory

sentence, and there is no constitutional requirement that these

sentencing enhancing factors be submitted to a jury.

For example, in _United States v. Royal_, 972 F.2d 643 (5th Cir.

1992), the defendant was charged and convicted by a jury in this

Court of violating 21 U.S.C. 841(a)(1) & 846. The indictment did not charge a

specific drug amount, and the jury was not instructed or

questioned as to amount. The proof at sentencing established that

the defendant had trafficked more than five kilograms of cocaine,

thus implicating a mandatory minimum sentence of ten years. The

defendant was sentenced to 30 years incarceration.

On appeal, the defendant argued that this Court erred in

enhancing his sentence because the government failed to indict

him for the quantity of drugs implicating the enhancement (i.e.,

over five kilograms). The government had filed a Penalty

Enhancement Information several days after the jury's verdict and

several months before sentencing. The Fifth Circuit affirmed the


This circuit is part of an overwhelming majority of courts

which have concluded that quantity is not an element of the

offense. [citations omitted] Rather, quantity is relevant

only at sentencing under 841(b). Royal does not allege that the

indictment did not adequately notify him of the charges

against him. Because quantity is not an element of the

offense of which he was convicted, he was not entitled to be

notified through the indictment that quantity would be

relevant to his sentencing. The notice he received [by the

government's Penalty Enhancement Information and the

Presentence Report] that the court would take quantity into

account when sentencing him was

page 11

sufficient to allow him to present evidence, if any,

disputing the government's evidence concerning quantity.

_Royal_ at 650.

This Court's holding is further supported by _McMillan v.

Pennsylvania_, 477 U.S. 79 (1986). In _McMillan the Supreme Court

upheld a Pennsylvania statute which provided that anyone

convicted of certain enumerated felonies was subject to a

mandatory minimum sentence of five years if the sentencing judge

finds, by a preponderance of the evidence, that the person

"visibly possessed a firearm" during the commission of the

offense. _McMillan_ at 81. The Supreme court rejected the

defendant's argument that the state must prove visible

possession beyond a reasonable doubt, and held the Pennsylvania

scheme to be consistent with due process. The Supreme Court

noted, however, that it was unable to lay down a bright line

test, and differences of degree might mandate different results

in other cases.

To determine whether a particular statute (or part of any

statute) creates an independent federal offense or is merely a

sentencing-enhancement provision is a matter of legislative

intent. _United States v. Jackson_, 891 F.2d 1151, 1152 (5th

Cir. 1989). The factors deemed helpful, but not controlling, in

making such a determination are whether: (1) punishment is

predicated upon conviction under another section; (2) the statute

multiplies the penalty received under another section; (3) the

statute provides guidelines for sentencing hearings; and (4) the

statute is titled as a sentencing provision. _United States v.

Affleck_, 861 F.2d 97,98 (5th Cir. 1988), _cert. denied_, 109

S.Ct. 1325 (1989).

The application of these factors to the sentencing portion of

924(c)(1) clearly demonstrates Congressional intent to make the

punishment provisions enhancement factors rather than essential

elements. While punishment is not predicated upon a conviction for

page 12

another offense, _United States v. Munoz-Fabela_, 896 F.2d 908,

909 (5th Cir.) _cert. denied_, 498 U.S. 824 (1990), it is clear

that the statute does require a finding by the jury of the

commission of another offense. _United States v. Ruiz_, 986 F.2d

905, 911 (5th Cir.), _cert. denied_, 114 S.Ct. 145 (1993). The

very language of the statute makes it clear that it does multiply

the punishment and that punishment is mandatory and to be imposed

consecutive to any sentence. Last, the unchanged title of 924, "Penalties," is an

indication that Congress intended the enhancement factors to be

just that, and not essential elements.

Finally, in _United States v. Harris_, 1959 F.2d 246 (D.C. Cir.

1992), the District of Columbia Circuit held that the jury need

not find that a defendant knew he possessed a machinegun for

purposes of a conviction under 924(c). 2 The D.C. Circuit "easily reject[ed]"

the defendant's argument that a particularized scienter is

required under 924(c) "because there is no requirement that every element of an

offense dealing with highly dangerous devices or substances have

scienter." _Harris_ at 258. The Court held:

[W]e assume that section 924(c) is violated only if the

government proves that the defendant . . . intentionally

used firearms in the commission of a drug trafficking

crime. The defendant's knowledge that the objects used to

facilitate the crime are `firearms' must be proven and

charged to the jury, as it was in this case. Deliberate

culpable conduct is therefore required as to the essential

elements of the crime--the commission of the predicate

offense and the use of a firearm in its execution--before

the sentence enhancement for use of a machinegun arises.

Harris and Smith argue, however, that in light of the

enhanced penalties involved, if a machinegun was used the

government must show that the defendant knew the precise

nature of the weapon and not merely that he knowingly used

a weapon in relation to a drug distribution offense. The

difficulty we see in appellants' position is that, assuming

that the essential elements of the crime (drug trafficking

and use of a firearm) already require


2 The court did find that scienter was required for a violation

of 26 U.S.C. 5485 (a)(6)-- just as the Supreme Court has recently found for 5861. _Staples v. United States_, 1994 U.S. Lexis 3773 (May 24, 1994).

page 13

a showing of mens rea, there does not seem to be a

significant difference in mens rea between a defendant who

commits a drug crime using a pistol and one who commits the

same crime using a machinegun; the act is different, but the

mental state is equally blameworthy. We are in neither case

confronted with an alter boy making an innocent mistake. This

case is similar to those involving arguments that criminal

penalties cannot be enhanced based on possession of different

kinds of illegal substances (drugs) without the government

showing that the defendant knew the exact nature of a given

illegal substance. That argument, correctly in our view, has

been rejected by other circuits. . . . The jury found

(pursuant to the district court's instructions) that both

Harris and Smith knowingly or intentionally possessed a

firearm, and that they did so intentionally to facilitate a

drug trafficking crime. . . . We, therefore, conclude that

appellants had the requisite mens rea under section 924(c).

_Harris_ at 258-259.

In an earlier era, before the surge of crime in this country

caused Congress to attempt to micro-manage sentences handed down

by federal courts, judges could actually weigh relative

culpability and exercise discretion in formulating appropriate

sentences. Such is not now the case. Based on this Court's review

and analysis of all available authorities, it is determined that

30 year sentences as to all Defendants convicted of Count Three

is mandatory.

_Obstruction of Justice_. U.S.S.G. 3C1.1.

Many of the Defendants object to the recommendation that two

points be added to the offense level for obstruction of justice.

U.S.S.G. 3C1.1, Application Note 3.i. provides that conduct prohibited by 18

U.S.C. 1510-1516 is an example of conduct to which this enhancement applies.

Title 18 1509provides:

Whoever, by threats of force, willfully prevents, obstructs,

impedes, or interferes with or willfully attempts to prevent,

obstruct, impede or interfere with, the due exercise of

rights or

page 14

the performance of duties under any order . . . of a court

of the United States shall be fined not more than $1,000.00

or imprisoned not more than one year or both.

* * *

It is clear that each of the Defendants, for 51 days, conspired

to prevent lawful authorities from executing a lawful search

warrant and did so by threat of force, specifically keeping

lawful authorities at bay by use of firearms. This enhancement

does apply, and the objections are overruled.

_Official Victim Adjustment_ U.S.S.G. 3A1.2

Several Defendants object to a three level increase in the

offense level under the Official Victim provision of U.S.S.G.

3A1.2. That section provides:

If ---

a) * * *

b) during the course of the offense . . . the defendant or

a person for whose conduct the defendant is otherwise

accountable, knowing or having reasonable cause to believe

that a person was a law enforcement or corrections officer,

assaulted such officer in a manner creating a substantial risk

of serious bodily injury, increase by 3 levels.

Each Defendant save Fatta was convicted of Court Three, which

required a finding of conspiracy to murder federal agents. Such

conspiracy and the ambush which resulted certainly constitutes an

assault of the type described. There is no question that the

Defendants knew the victims were law enforcement officers. Indeed

the conspiracy demanded that they be. This objection is


_Count Three Concurrent or Consecutive_

Many Defendants suggest that punishment for Count Three should

not be consecutive

page 15

because the jury did not convict on the predicate Count One. This

suggestion ignores the requirement that the jury find as to Count

Three that the predicate offense occurred, even though "through

mistake, compromise or lenity" it chose not to do so as to Count

One. _United States v. Powell_, 469 U.S. 57 (1984).

Additionally, the second sentence of Title 18 U.S.C. 924(c)(1) provides:

Notwithstanding any other provision of law, the court shall not

place on probation or suspend the sentence of any person

convicted of a violation of this subsection, nor shall the term

of imprisonment imposed under this subsection run concurrently

with _any other term of imprisonment_ including that imposed

for the crime of violence . . . in which the firearm was used

or carried. (emphasis supplied).

This objection is likewise overruled.

_Acceptance of Responsibility_ U.S.S.G. 3E1.1

All Defendants seek a three point reduction in the offense level

for acceptance of responsibility. No defendant now before the

Court admitted guilt, expressed remorse or in even any small way

attempted to meet the requirements of this section. These

objections are ludicrous and are overruled.

_Fatta's Objections_

Defendant Fatta suggests that adding 6 points for involvement of

fifty or more firearms is inappropriate since there were only 48

illegal machineguns accounted for. Under Application Note 1,

however, "firearm" includes any destructive device or silencer.

There were several of each, and added to the 48 machineguns, the

total exceeds 50. This objection is overruled.

Fatta also objects to a 2 point addition for the involvement of

a destructive device. Since there were enough silencers to make

the total above 50 without counting the live

page 16

grenades, then adding this two points does not double-count the

grenades, and this objection is also overruled.

Fatta's primary objection is the cross-reference to conspiracy

to murder.

U.S.S.G. 2K2.1(c) provides:


1) If the Defendant used or possessed any firearm or ammunition

in connection with the commission or attempted commission of

another offense, or possessed or transferred a firearm . . .

with knowledge or intent that it would be used or possessed in

connection with another offense, apply--

(A) 2X1.1 (Attempt, Solicitation or Conspiracy) in respect to

that other offense, if the resulting offense level is

greater than that determined above; . . .

2X1.1 provides:

(a) Base Offense Level: The base offense level from the

guidelines for the substantive offense, plus any adjustments

from such guideline for any intended offense conduct that

can be established with reasonable scrutiny.

The offense to which cross-reference would be applied is

conspiracy to murder federal agents, an offense for which Fatta

was acquitted. Fatta's argument is that by allowing cross-

reference to that offense, the sentencing guidelines stands the

law on its head. The first answer is that the guidelines, and the

cross-referencing provision, merely directs the Court to the

correct sentence within the statutory range. In this case, that

command would direct the Court to the upper limits of the

statutory range. The second answer is simply that that is the


The Second Circuit addressed this exact issue in _United States

v. Concepcion_, 983 F.2d 369 (2d Cir. 1992), _cert. denied_ in

_Frias v. United States_, ___ U.S. ___, 114 S.Ct. 163

page 17

(1993). In that case, the defendant was acquitted of an

underlying narcotics conspiracy, but convicted of possession of

a firearm by a felon and possession of an unregistered firearm.

The district court cross-referenced to conspiracy, the acquitted

offense. In pertinent part, the Second Circuit held:

Given the Commission's evident intent that the term `another

offense' include uncharged offenses, we are left with the

question of whether it also meant that term to include an

offense with which the defendant was charged but of which

he was acquitted. We conclude that it did. . . . Since an

`[a]cquittal d[id] not have the effect of conclusively

establishing the untruth of all the evidence introduced

against [a] defendant,' [citation omitted], and since

disputed facts for purposes of sentencing needed only be

established by a preponderance of the evidence, the

sentencing court was entitled to consider information that

the defendant had engaged in conduct that was the subject

of an acquittal. [citations omitted]

_Concepcion_ at 387-88.

In _United States v. Masters_, 978 F.2d 281 (7th Cir. 1992),

_cert. denied_, ___ U.S. ___, ___S.Ct. ___, 124 L.Ed2d 245

(1993), the Seventh Circuit similarly held, noting that judges

may take other crimes into account when sentencing even when the

defendant has been acquitted of those crimes: "An acquittal means

that the charge was not proven beyond a reasonable doubt; it does

not mean that the defendant didn't do it." _Masters_ at 286.

Therefore, the acquittal of Fatta on Count One does not preclude

the cross-reference recommended by the probation office in this

case. Moreover, even if the increase in this case could be

considered "astronomical," as in the _Concepcion_ case, this

Court does not believe a downward departure pursuant to 5K2.0 is appropriate.

Fatta was convicted by the jury of Conspiracy to Possess

Machineguns (Count 9) in violation of 18 U.S.C. 922(o), and Aiding and Abetting in

the Unlawful Possession of Machineguns (Count 10) in violation of

18 U.S.C. 922(o) and 18 U.S.C. 2.

Because of the large number of automatic

page 18

weapons and destructive devices in this case, the cross-reference

is particularly appropriate and a downward departure is not


It is also important that U.S.S.G. 1B1.3, dealing with

relevant conduct, provides:

(a) Chapters Two (offense conduct) and Three (adjustments).

Unless otherwise specified, . . . (iii) cross-reference in

Chapter Two . . . shall be determined on the basis of the


(1) . . .

(B) in the case of a jointly undertaken criminal activity

. . . all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal


that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course

of attempting to avoid detection or responsibility for that

offense. . . .

Lastly, Fatta was convicted of conspiracy to manufacture illegal

firearms, and under the circumstances, it was foreseeable and

foreseen by him that those weapons would be used in the manner

they were. Therefore, the cross-reference in this case is clearly

appropriate, and Fatta's objection is overruled.

SIGNED this __17th__ day of June, 1994.





page 19


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