efraim diveroli: transcript of sentencing day two - 9-1-11 - gun charge

8/18/2019 Efraim Diveroli: Transcript of Sentencing Day Two - 9-1-11 - Gun Charge

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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.

Case 6:10-cr-00281-GAP-KRS Document 65 Filed 10/26/11 Page 1 of 28 PageID 622


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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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


efraim diveroli: transcript of sentencing day two - 9-1-11 - gun charge

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