Efraim Diveroli: Transcript of Sentencing Day Two - 9-1-11 - Gun Charge

Case 6:10-cr-00281-GAP-KRS Document 65 Filed 10/26/11 Page 1 of 28 PageID 622
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
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Case no.:
6:10-cr-281-ORl-31KRS
UNITED STATES OF AMERICA,
Plaintiff,
v.
EFRAIM DIVEROLI,
Defendant.
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Orlando, Florida
September 1, 2011
1:30 p.m.
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Transcript of the sentencing (day two)
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before the Honorable Gregory A. Presnell
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United States District Judge
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Appearances:
Counsel for Plaintiff:
J. Bishop Ravenel
Counsel for Defendant:
Cynthia Hawkins
Court Reporter:
Diane C. Peede, RMR, CRR

United States Courthouse
401 West Central Blvd., #4600
Orlando, Florida 32801
(407) 615-0305
Proceedings recorded by mechanical stenography, transcript

produced by computer.
Diane Peede, RMR, CRR (407) 615-0305

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P R O C E E D I N G S
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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:
MR. RAVENEL:
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Okay.
Appearances?
Good afternoon, Your Honor.
Ravenel for the United States.
Bishop
With me is Kevin McCann with
A.T.F.
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THE COURT:
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MS. HAWKINS:
All right.
And for the defendant?
Good afternoon, Your Honor.
Cynthia
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Hawkins on behalf of the defendant, Mr. Efraim Diveroli, who
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is seated to my right.
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THE COURT:
Okay.
All right.
Well, we're here
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today for the continuation and, hopefully, conclusion of the
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sentencing in this case.
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had a significant amount of testimony and argument, and I
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think we basically determined the guideline score and covered
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the various legal and factual issues regarding the matter,
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and then I wanted to take some time to think about it and to
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review some of the legal issues involving this matter, which
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I've done.
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The last time we got together, we
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?
MR. RAVENEL:
THE COURT:
MS. HAWKINS:
No, sir.
Ms. Hawkins?
No, Your Honor.
No.
We're ready
to -- prepared to argue about variance at this point.
THE COURT:
MS. HAWKINS:
THE COURT:
MS. HAWKINS:
Okay.
Shall I proceed, Your Honor?
Yes, please.
May it please the Court.
The Court
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has already determined the guidelines level, and we
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acknowledge that.
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doesn't end the inquiry.
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aware, it has the discretion to grant a variance, and we're
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going to ask the Court to do that based on the following
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reasons:
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for having the magazine overrepresents what this defendant
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did.
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We understand that, but that, of course,

At this point, as the Court is
The first reason is that the six-level adjustment
He -- those weapons that the government brought to
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the meeting could have -- they could have brought magazines
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that had five or ten rounds in the magazines.
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those -- they come with those kind of magazines, yet the
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government chose to bring magazines that would handle 15-plus
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rounds, and that's -- that was not the defendant's choice.
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He did not bring the guns.
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did not bring the magazines.
Those come for
He did not request the guns.
He
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.
weren't fully automatic military assault-type rifles.
They
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
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defendant.
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The defendant maintains that he didn't see the
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magazines.
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Court has credited, and yet it's still a factor that that was
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not his intent and he had nothing to actually do with it.
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didn't request them.
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I understand we have the testimony here that the
He
He didn't even see them.
We understand that the defendant did go to the
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range one time.
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done that, and he fired a weapon to test his magazines; but
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the other time, it came out in the testimony, when he went to
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the Everglades that he used a black powder rifle, which is
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not an illegal weapon.
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That's been documented.
He shouldn't have
He was entitled to use that.
So, given all of those facts together, it's our
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contention that this is an atypical A.T.F. case.
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your typical A.T.F. case, Your Honor.
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It is not
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 Mr. Diveroli intended to make by picking
up and putting back down these guns that the government
brought.
He wasn't coming to the Middle District to sell
weapons.
He wasn't coming to do anything violent or assist
in anything violent.
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.
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He was coming to do what he perceived
It's been our contention all along that that's the
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gravamen of his offense, that he went to the Wal-Mart and
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bought the ammunition that day.
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I mean, he pled guilty, Your Honor.
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He did that.
That's why --
This defendant waived speedy indictment.
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in immediately.
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case.
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We came
We said, "Look, don't do any work on this
He's going to plead.
He's going to cooperate."
He waived speedy indictment.
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trial.
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not make the government work, Your Honor, because he knew
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that he had to take responsibility for the ammunition and for
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picking up those weapons, and he has done that.
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He waived everything.
He waived speedy
He's been cooperative.
So that's our position.
He did
It's not a typical A.T.F.
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case, particularly because the agent provided the weapons and
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not at his request, as well as the magazines.
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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
Middle District and he demurred at first.
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.
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The agent admitted
My client wanted to -- he said, "Come down to
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Miami.
Come to Fort Lauderdale.
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Jupiter," several times, but the agent kept saying, "No.
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need to come up here."
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I'll meet you in, you know,

You
So we would ask that there be a variance from that

three levels as well.
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Other factors, Your Honor:
The relative youth of
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Mr. Diveroli, the fact that he had just horrible addictions
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to drugs and alcohol and gambling that really resisted
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treatment.
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finally, and as I think his mother said, she was glad that he
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got put in jail this time, because she knew he was alive.
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I mean, he was inpatient several times.
But,
And he's spent over a year in jail now, Your Honor,
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being clean.
He's been getting treatment for his mental
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problems.
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that first -- I first met when I met him in the lockup in the
He's a completely different person than the person

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Orange County Jail.
He's come a long way and it was -- and
he really needed that.
call that we heard between he and his father was early on.
That was when he was down in Miami.
nine months ago, at least.
And as his mother told the Court, the
THE COURT:
MR. RAVENEL:
He was in the Orange County Jail.
MS. HAWKINS:
Okay.
He was here.
I'm sorry.
I misread the date
on that one, but it's been some time ago.
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No.
That's been eight or
THE COURT:
Well, remember the guy from Orange
County testified.
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MS. HAWKINS:
Yes, sir, I remember that now.
Maybe
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it was right after he got back, but I know it's been some
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time ago.
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just in her conversations with him on the phone and in
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person, that from when he first got arrested and locked up on
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this case, how it's changed dealing with him.
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calmed down.
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and expressed his remorse many, many times.
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another factor.
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Honor.
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And my point being that his mother indicated that,
He's just
He's -- he's just been very responsive to her

So he -- that's
He does have strong family support, Your
And in that call to his father, it's pretty clear
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he has a different relationship with his dad than he does
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with his mom; but the way that we interpret that call was
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that he was trying to get his dad to cooperate with the


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agents and that's what he was saying.
something legal.
"I want you to do
It's with the government.
Make the call."
And even the agent that I questioned admitted that
he had heard that Chang was being investigated.
know exactly for what or how much effort was being put into
it at that time.
That's all he was trying to do.
He didn't
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
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very sweet to him.
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being a good and -- a person going out there and working hard
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and paying taxes and trying to contribute to society.
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good qualities, Your Honor.
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been in jail, and it's worked for him.
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thing, and he knows that now.
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So this is a person that is capable of
He has
This is the first time he's ever

It was the right
On the issue of concurrent as opposed to
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consecutive sentence, Your Honor, one of the major points
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that stands out in our review of the cases, if the Court
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gives a concurrent sentence, he will be able to be admitted
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to drug and alcohol treatment.
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a gun case -- because gun cases make a difference in your
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acceptance into that program.
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contract out of the Southern District, the unjust enrichment
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theory of fraud that they had.
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gun count, we're very concerned that he will not qualify for
If he gets additional time on
His other conviction is the
And if he gets time on the

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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.
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He has been in jail on this case for a year, over a

year now.
Also, the length of the sentence matters a lot
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here, because, at least in my estimation, and I'm sure the
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Court has its own opinion, but there seems to be a fairly
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good likelihood that the Southern District of Florida case
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could be reversed.
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went to trial an appeal bond, and -- the Eleventh Circuit
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Court of Appeals.
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have in terms of the fraud.
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report that the government filed, there's indication there
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that the ambassador in Albania knew this was Chinese
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ammunition.
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They've granted the co-defendant that
And it's a very novel theory that they

Even in the 2008 Congressional
So you can tell that there's a problem with the
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case when you have 100-something counts and you let somebody
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plead to one five-year count.
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So my suggestion is that that case very well could
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go away.
So the length of this sentence matters a great,
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great deal to this defendant.


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THE COURT:
MS. HAWKINS:
How would that affect his sentence?

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 --
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THE COURT:
Miami?
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How would it affect his sentence in
MS. HAWKINS:
Well, here's what I'm saying.
Let's
say that the Court gave either a 46-month sentence here or a
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14-month sentence here, and the Miami case is vacated.
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gets -- it's the same count -- it's the same indictment
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that -- that he's charged in.
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He
If his co-defendant -- if the Eleventh Circuit says
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as a matter of law that this does not constitute an offense
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and they have freed him -- freed the co-defendant that went
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to trial on an appeal bond, which is pretty rare, they vacate
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that conviction.
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extreme -- if that's the holding, it could very well free him
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on that case and that conviction could be reversed.
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He files a 2255 and, I think, stands in
I say that -- that's why I filed Merrill's pleading
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in that case, so the Court could see there were some very
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real issues that could very well lead to that.
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there's -- you know, in my reading of the Miami indictment,
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there's a very real possibility that their theory of fraud
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won't fly.
It's very unusual.
And I think
It's a novel theory.


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My 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.
difference to him in the future if that happens.
that point up to the Court.
It could make a real big

So I bring
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.
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THE COURT:
Well, as we discussed the last time, I
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think that one of the difficult decisions I need to make here
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is to what extent should any sentence I give in this case be
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consecutive?
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table and is something we need to deal with.
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I mean, that's clearly an issue that is on the
MS. HAWKINS:
Yes, sir.
And actually that was my
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next point.
The case that I cited in my memo, the Royer
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case, I went back and looked at it, and what I was saying at
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page 905, there were two indictments there.
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Court was sentencing, I believe, the defendant on both of
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them at the same time.
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pattern.
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said this sentence will stand, because what the judge did in
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this case was give a three-level concurrent sentence on the
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first indictment, but ran that sentence completely -- I mean,
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it gave a three-level consecutive sentence on the first
Actually, this
So it's a slightly different fact
But at page 905, the court -- the appellate court

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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.
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 Miami case.
We're asking
And that's
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what the Royer case says you can do, because that's what they
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did; and the Second Circuit said that's -- that's okay.
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That's a legal sentence.
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Can I answer any question about what I'm saying?

The Court looked like it might have a question.
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THE COURT:
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MS. HAWKINS:
No.
I think you've covered it.
Okay.
There are, again -- as I
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stated the last time, there are a couple of cases in older
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cases.
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cases from 1992 in the -- I think the Ninth Circuit and the
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Eighth Circuit that are contrary to that.
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latest case on the subject in terms of being able to run the
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two indictments, total sentences, concurrent; and I didn't
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find anything in the Eleventh Circuit.
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The Royer case is 2008.
There are a couple of older
But this is the
And, again, we're asking that the -- another reason

that the cases -- the Miami 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 Miami 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
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last week that I wanted to cover was the question of, you
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know, there should be some punishment for this additional
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offense; and I started to talk about that at the end of the
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hearing last week and I said there has been.
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consequences for this particular offense.
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year in jail that he spent, he -- he lost his ability to
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cooperate and receive the probationary sentence that his
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co-defendants who cooperated in Miami received, and that was
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because of the arrest here.
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He has suffered
In addition to the
He also has forfeited a million dollar bond.
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That's in forfeiture now.
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of that, and they're suing -- there's litigation before the
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court in Miami to take the whole one million dollar in bond.
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They've already forfeited 100,000
The P.S.R. indicates this defendant is virtually
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bankrupt.
So he hasn't been able to work, obviously.
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hasn't been able to do anything.
He
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 Mr. 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."
would just ask the Court to remember his presentation and
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But I
what he said and how he said it last week.
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This is a person who has genuine remorse and he
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knows he did wrong.
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says the person that he was is either dead or almost dead;
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and he is a different person, Your Honor.
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changed quite a bit.
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He knows that he's trying to change.
He
He's already
He's been in jail for over a year.
He is redeemable.
He has good qualities.
He's
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been a charitable person.
I gave those documents to the
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court.
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back to 2007 or even earlier.
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his employees -- $10,000 for a funeral for the parent.
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mean, he did try to help people.
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good qualities, and we ask the Court to factor that in and
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show some mercy to this defendant.
Even this is before he was in this any trouble, going

He, you know, paid for one of
He can be redeemed.
I
He has
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We would ask that the Court vary at least eight
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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, Ms. Hawkins.
MS. HAWKINS:
Yes, sir.
MR. RAVENEL:
May I respond, Your Honor?
THE COURT:
MR. RAVENEL:
Sure.
I'll take her points in order, Your
Honor.
that's appropriate in this case.
regarding the magazine -- the magazines that were brought
10
With respect to a variant sentence, we don't think

Her first argument was
along with the firearms.
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The agent testified that those magazines were
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consistent with magazines that are typically used with those
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weapons.
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of magazines being manufactured for those weapons that were
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smaller than what the sentencing guidelines would set forth
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as high-capacity magazines or at least that they were the
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type of magazines that you would expect to be manufactured
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with those guns.
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that were bigger than you normally would expect to be used
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with those firearms.
I believe the agent testified that he wasn't aware
So it wasn't like he selected magazines
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You also know that those firearms were brought by
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that undercover because they were consistent with the other
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firearms that Mr. Diveroli mentioned liking to use.
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that a week earlier he used an AR-15 with a 100-round drum
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while he was on bond in the Southern District.
You know
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.
also invited the undercover to shoot a machine gun in the
Southern District of Florida.
that, shooting a fully automatic machine gun, his guidelines
10
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He
Had he been successful with
would have been higher than the guidelines he faces.

With respect to whether there was a legitimate deal
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he was trying to enter into, we don't believe it was.
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entering or attempting to enter into that transaction that
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regarded items on the United States' munitions list that he
15
had another contract to import from Korea, something he could
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not do as a banned party at the time.
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He was
Counsel mentioned his conduct in the judicial
18
proceedings.
We don't believe that offers him any mitigation
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in this case.
You know that a little over a month after he
20
was sentenced in South Florida, after his attorney in this
21
case went down, represented to the court as an officer of the
22
court facts about his case which are inconsistent with the
23
facts in his Plea Agreement, essentially along the lines of
24
that he was entrapped and things of that nature and that he
25
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
10
we believe he attempts to encourage his father, the same
11
person that co-signed on that bond.
12
said he had a different relationship with his father.
13
the relationship was sufficiently strong to where the father
14
co-signed on that bond that's now forfeited.
15
attempting to encourage his dad to do something that
16
certainly his dad didn't feel comfortable with, which appears
17
to be illegal.
18
And I notice counsel

Well,
And he's
Counsel's mentioned that so much of what he's done
19
is the product of addiction; but yet you know that since
20
October of 2010, he's been incarcerated and six months later
21
is when he placed that call to his father.
22
demeanor, how he treated his father, and what he asked his
23
father to do.
And you saw his
24
Counsel mentioned that you should credit his
25
statement to the Court, and I would submit to you he's


18
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.
different tact, but it was the same purpose.
his father in a way that he thought would encourage the
result that he wanted, and that's a reduced sentence.
He took a
He talked to
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.
10
We've already submitted argument as to why we
11
believe a consecutive sentence is required.
12
there's -- I can respect the Court's comments about the
13
application note to the guidelines.
14
particularly clear, but we think the statute is clear.
15
Certainly,
I don't think that's
In any event, we don't think a concurrent sentence
16
is appropriate in this case.
17
altogether.
18
in the Southern District, which is the maximum he could
19
receive without the United States Attorney moving for that
20
third point.
21
It's a different crime
You know he received two points for acceptance
Since his conviction -- since his sentencing in the
22
Southern District, there's been no change.
23
to try to manipulate people to benefit himself, which is what
24
got him in all this trouble in the first place.
25
He's continuing
With respect to the drug treatment, I would suggest


19
that's just another ploy to get a reduced sentence, to allow
him to escape incarceration earlier than he would otherwise
be allowed to.
incarcerated hasn't affected his personality at all, based on
that jail call.
And you know that six months of being
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.
10
THE COURT:
11
MS. HAWKINS:
12
THE COURT:
Anything else, Ms. Hawkins?

No, Your Honor.
Okay.
Well, as you know, I have had
13
some time to reflect on this, and I have -- in the context of
14
the sentencing, I've received a lot of information.
15
addition to the P.S.R., I have all those documents that I
16
reviewed before the first sentencing, including the
17
correspondence and memoranda from counsel, counsel's argument
18
and testimony.
In
19
So, in terms of the determination of an appropriate
20
sentence, we obviously begin with the guideline score and use
21
that as a baseline for the overall process when we consider
22
the 3553(a) factors; and I have already determined and still
23
believe that the 22/II score is appropriate in this case.
24
25
With respect to the legal framework of the

guidelines and the statute, it seems to me that for the

20
statute to be given any effect, a portion of this sentence
has to be consecutive to the Miami sentence.
other way to logically read the statute and the guidelines.
I don't see any
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
10
that my sentence of Mr. Diveroli for the underlying offense
11
here can be concurrent to the Miami sentence or consecutive
12
to it or a combination of those.
13
So that's the legal framework that I have
14
structured in my mind as being appropriate for the further
15
consideration of the 3553(a) factors.
16
So let me turn to those.
Let me first discuss the
17
nature and circumstances of the offense.
18
there's any question but that firearms in this country are a
19
serious problem.
20
resulted in a hodgepodge of legislation; but, clearly, the
21
defendant violated that law, and I take that violation as
22
being a serious one.
23
I don't think
Our country's efforts to deal with it have
Ms. Hawkins argues that it was basically a
24
technical offense, that he simply picked up and looked at
25
guns that were brought to him by the government, by the


21
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.
knowledge of weapons is that these guns routinely and
normally carry a magazine that would qualify under the
10
11
My understanding of the evidence as well as my practical
guideline and the statute for large capacity.

So, you know, I think it's more than a technical
12
violation, but I do recognize as some mitigating factor the
13
fact that Mr. Diveroli allowed himself to get talked into
14
coming up here and was dumb enough to pick up guns that he
15
had no intention of shooting.
16
So, on balance, I think the offense is serious,
17
perhaps some slight mitigation in terms of my Booker
18
discretion.
19
Next, I turn to the defendant.
Of course, the
20
offense and the defendant are generally captured in the
21
guideline score; but the case law is clear now that I need to
22
look at this particular offense and this particular defendant
23
as an individual and try to consider the complexity of
24
individual conduct and experience in determining an
25
appropriate sentence, and Mr. Diveroli is a difficult case.


22
Ms. 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.
bring that to the bench, and I think the lawyers are well
aware of it.
That's just my nature.
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
10
defendants I see here are people who are here, in large part,
11
because of the deprivation suffered in their early years.
12
Mr. Diveroli did not grow up in a deprived home.
13
He had the advantage of a good, strong family.
14
advantage of the opportunity for a good education.
15
obviously intelligent.
16
away and betraying his family's trust in the process.
17
He had the
He's
And he ended up throwing all that
So it's hard to see that, as mitigation, I
18
recognize that he may have a good heart.
19
charitable work.
20
who is the real Efraim Diveroli?
21
to me and expressed his remorse or is it the one we heard on
22
the telephone talking to his father in a manner that, as I've
23
said before, was shocking?
24
25
He has engaged in
And the real question to me comes down to,
I don't know.
Is it the one that talked
I really don't know.
I doubt that
Mr. Diveroli knows.


23
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.
I don't know.
Maybe he was being sincere.
I hope it's the latter, but
So, in terms of the personal characteristics, it's
hard for me to, on balance, see a lot of mitigation.
some.
court, that he is indeed a changed person.
case.
Maybe
I'll give him some, based on his statements here in
10
I hope that's the
The other somewhat objective factor under the
11
statute is deterrence.
12
mirror image of the seriousness of the offense.
13
serious the offense, the greater the need to deter others
14
from committing similar conduct.
15
Deterrence, to me, is basically a

The more
Protection of the public from further crimes of the
16
defendant.
17
life and his drug problem, I think he's smart enough to not
18
re-offend.
19
I think he's smart enough to know better; but that assumes
20
that he can control the demons that cause him to rely on
21
drugs and gambling, which obviously affect one's ability to
22
reason and act in a positive manner.
23
big if.
24
25
You know, if the defendant can get control of his
I mean, that's just the logical way I look at it.
So, there again, it's a
I think there's some mitigation there that we are

not going to need to protect the public from Mr. Diveroli

24
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.
maybe that's part of my inherent optimism about humanity.
I could be wrong.
Again,
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
10
11
sentencing process, is an effort to do that.

Frankly, I believe it takes a human being to make
12
that judgment call; and I was always opposed to the mandatory
13
guidelines for that reason.
14
ways, but I think that's the way we are made and the way it
15
needs to be done.
16
It makes my job harder in some
So, having said all that, I think that in terms of
17
concurrent/consecutive, that a sentence, a guideline
18
sentence, for example, of 46 months concurrent with Miami
19
would do two things:
20
for this offense unless his Miami conviction is later thrown
21
out, for some reason, which I think is a huge if; and,
22
secondly, it wouldn't give effect to the statute, 3147, which
23
clearly suggests that a three-level portion of this offense
24
should be consecutive, and that three-level portion is about
25
one year, twelve or thirteen months.
One, it would not punish Mr. Diveroli

25
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 Miami sentence, 24 months
to run consecutive.
for any reason, the 24-month consecutive is broken down into
twelve months for the offense and twelve months for the
enhancement under 3147.
8
9
And, for the record, if you need this
So, in essence, when you boil it all down, for this

offense, he's receiving one year in prison for the offense,
10
the weapons offense, and one year for having done it while he
11
was on supervision in Miami.
12
I think, depending on your perspective, one could
13
view that sentence as harsh or lenient.
14
it's what I think is appropriate.
15
I don't know, but
So, having considered all of this, it's the
16
judgment of the Court that the defendant, Efraim Diveroli, is
17
committed to the custody of the Bureau of Prisons to be
18
imprisoned for a term of 48 months, 24 months of which are
19
concurrent to the sentence imposed in Miami and 24 months to
20
run consecutive to that sentence.
21
Upon release from prison, Mr. Diveroli, you'll be
22
placed on supervised release for a term of two years.
The
23
mandatory drug testing requirements of the Violent Crime
24
Control Act are imposed; and, if you want, I will put in a
25
recommendation to the B.O.P. that you receive drug treatment,


26
but that's up to you.
MS. HAWKINS:
Yes, sir, we do.
THE COURT:
While on supervised release, you must comply with
Okay.
I'll make that recommendation.
the standard conditions adopted by this court.
you must participate in a substance abuse program, follow
your Probation Officer's instructions in that regard.
8
9
10
In addition,
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.
11
You must cooperate in the collection of D.N.A.
12
The fine is waived.
It is ordered that you pay the
13
United States a special assessment of $100, which shall be
14
due immediately.
15
16
Are there any asset forfeiture issues still

remaining?
17
MR. RAVENEL:
18
THE COURT:
19
Just the items in the Plea Agreement.

All right.
The items set forth in the
Plea Agreement therefore are forfeited to the United States.
20
This is a guideline sentence, and I think I've
21
explained my rationale for the concurrent/consecutive aspects
22
of it.
23
The Court accepts the Plea Agreement.
24
The defendant is remanded to the custody of the
25
Marshal to await designation by the B.O.P.


27
1
2
Is there any objection to the sentence or to the

manner in which the Court has pronounced sentence?
3
4
MR. RAVENEL:
We would object to the concurrent
portion of the sentence, for the reasons I've stated.
THE COURT:
MS. HAWKINS:
10
11
12
Ms. Hawkins.
We would preserve our previously made
objections.
8
9
Okay.
We would also request a recommendation to the

B.O.P. for Miami or, if not Miami, some other area in
Florida.
THE COURT:
I'll recommend South Florida.
How
about that?
13
MS. HAWKINS:
14
THE COURT:
Yes, sir.
All right.
Mr. Diveroli, to the extent
15
permitted by your Plea Agreement, anyway, you have the right
16
to appeal this sentence within 14 days from today or 14 days
17
from the date the judgment is recorded, whichever is later.
18
If you fail to appeal within that period, it'll be a waiver
19
of your right to appeal.
20
The government can also appeal from this sentence.
21
You're entitled to the assistance of counsel in
22
taking an appeal.
23
provided for you.
If you cannot afford a lawyer, one will be
24
Is there anything else I need to address?
25
MS. HAWKINS:
No, Your Honor.
Can I just add to

28
what I said about my objection?
very clear and preserve any appellate rights.
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:
consecutive portion.
I want to make sure it's
And he's objecting to the 24-month

So we've got all our bases covered.
MS. HAWKINS:
I think so.
10
THE COURT:
11
(Proceedings terminated at 2:15 p.m.)
12
We
All right.
Thank y'all.
- - - - - - - -
13
Reporter's Certification
14
I certify that the foregoing is a correct transcript from the
15
record of proceedings in the above-entitled matter.
16
17
18
Date:
September 19, 2011
s/Diane Peede, RMR, CRR

Official Court Reporter
United States District Court
Middle District of Florida
19
20
21
22
23
24
25

Efraim Diveroli: Transcript of Sentencing Day Two - 9-1-11 - Gun Charge

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

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Transcript of the sentencing (day two)

before the Honorable Gregory A. Presnell

United States District Judge

Counsel for Defendant:

Diane C. Peede, RMR, CRR

Proceedings recorded by mechanical stenography, transcript

Case 6:10-cr-00281-GAP-KRS Document 65 Filed 10/26/11 Page 2 of 28 PageID 623

Lisa, if you would, call the

THE COURTROOM DEPUTY:

This is in the matter of the

United States of America versus Efraim Diveroli, case number

Good afternoon, Your Honor.

Ravenel for the United States.

With me is Kevin McCann with

And for the defendant?

Good afternoon, Your Honor.

Hawkins on behalf of the defendant, Mr. Efraim Diveroli, who

Well, we're here

today for the continuation and, hopefully, conclusion of the

sentencing in this case.

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

The last time we got together, we

So I appreciate y'all coming back.

counsel wish to say or anything that I need to know that's

Case 6:10-cr-00281-GAP-KRS Document 65 Filed 10/26/11 Page 3 of 28 PageID 624

not already on the table, so to speak?

to -- prepared to argue about variance at this point.

has already determined the guidelines level, and we

doesn't end the inquiry.

aware, it has the discretion to grant a variance, and we're

going to ask the Court to do that based on the following

for having the magazine overrepresents what this defendant

We understand that, but that, of course,

The first reason is that the six-level adjustment

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 -- 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.

did not bring the magazines.

Those come for

He did not request the guns.

He did not request them.

Case 6:10-cr-00281-GAP-KRS Document 65 Filed 10/26/11 Page 4 of 28 PageID 625

So, based on this, the six-level adjustment is

simply too harsh, because these were, of course,

semi-automatic weapons that the government brought.

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

of course, these other magazines became legal; but, again,

these were choices made by the government and not the

The defendant maintains that he didn't see the

not his intent and he had nothing to actually do with it.

didn't request them.