USA v. Ortiz et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
V.
DAJOUR WESTON,
Defendant.
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WILLIAM F. KUNTZ, II, United States District Judge:
MEMORANDUM & ORDER
23-CR-338 (WFK)
On May 15, 2024, Defendant pied guilty to the sole count of a single-count Indictment, charging
him with being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(l),
924(a)(8). Plea Agreement ,r I, ECF No. 43; see generally Indictment, ECF No. 16. The Comi
now sentences Defendant and provides a complete statement of reasons, under 18 U.S.C.
§ 3553(c)(2), of those factors set forth by Congress in 18 U.S.C. § 3553(a). For the reasons set
forth below, Defendant is hereby sentenced to sixty-three (63) months' imprisonment; two years'
supervised release with both the standard and special conditions of supervision; and a $100.00
mandatory special assessment.
I. Background
Factual Background
On July 24, 2022, Defendant and co-defendant Messiah Ortiz entered Alpha Restaurant
and Lounge in Astoria, Queens. Sealed PSR 'if 10. At the time, Defendant was on probation for a
state conviction in Georgia for Aggravated Assault. Id. 'ii 9. While inside Alpha Restaurant and
Lounge, Defendant and Ortiz began arguing with another person ("Individual-I"). Id. As the
argument escalated, Ortiz left the lounge to retrieve a gun from his car. Id. ,r,r 10-11.
When Ortiz returned, the crowd had moved outside, at which point Ortiz handed the gun
to Defendant. Id. The argument continued on the corner of 41 st Street, where Individual-]
violently gestured in Defendant's direction with what appeared to be a firearm. Gov't Sent' g Mem.
at 2. Defendant then drew the gun in his possession and aimed it at Individual-1. PSR i! 12.
Individual-I fired a single shot, hitting Defendant. Id. Individual-I then turned and fled. Id.
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After Defendant was shot, Ortiz took the gun from Defendant and ran after Individual- I,
firing approximately eight shots in Individual-1 's direction. Gov't Sent'g Mem. at 2. Ortiz's shots
hit two parked vehicles and narrowly missed a passing car. Id at 5. Afterwards, Ortiz ran to his
car and fled the area. Id at 6. Defendant was dropped off at Mount Sinai Hospital in Queens. Id.
The shooting was captured by multiple video cameras. Id at 2.
Officers from the New York Police Department ("NYPD") collected nine rounds of
ammunition from the scene, comprising (1) eight .9mm Federal Cartridge Company casings, and
(2) one .380 caliber Federal Cartridge Company casing. PSR ,i 12.
Procedural History
On July 25, 2022, Defendant was charged with firearm possession in Queens County
Superior Court. PSR ii 41. On August 22, 2023, a United States grand jury sitting in the Eastern
District of New York returned a single-count Indictment against Defendant and co-defendant
Ortiz. Indictment, ECF No. 16. On May 15, 2024, Defendant pied guilty to the sole count of the
Indictment, charging him with being a felon in possession of ammunition, in violation of 18
U.S.C. §§ 922(g)(l) and 924(a)(8). Plea Agreement ,i 1, ECF No. 43. Pursuant to the plea
agreement, Defendant agreed not to file an appeal or otherwise challenge his sentence if the
Court imposed a term of 87 months' imprisonment or below. Id. ,i 4.
II. Legal Standard
Congress set fmth the procedures for imposing a sentence in a criminal case in 18 U.S.C.
§ 3553. Together with 18 U.S.C. § 3553, the United States Federal Sentencing Guidelines
operate as the "starting point and the initial benchmark" for a comt evaluating a criminal
sentence. Gall v. United States, 552 U.S. 38, 49 (2007). If and when a district court chooses to
impose a sentence outside of the Sentencing Guidelines range, the court "shall state in open court
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the reasons for its imposition of the particular sentence, and ... the specific reason for the
imposition of a sentence different from tha :cribed" in the Guidelines. 18 U.S.C.
§ 3553(c)(2). The court must also "state[] with specificity" its reasons for so departing "in a
statement of reasons form." Id The court's statement of reasons "shall be a simple, fact-specific
statement explaining why the guidelines range did not account for a specific factor or factors
under§ 3553(a)." United States v. Davis, 08-CR-0332, 2010 WL 1221709, at *1 (E.D.N.Y.
Mar. 29, 2010) (Weinstein, J.) (internal citation omitted).
When determining the appropriate sentence, the court must consider seven different
factors: (I) the nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence imposed; (3) the kinds of sentences available; (4) the
kinds of sentence and the sentence range established by the Guidelines; (5) any pertinent policy
statements issued by the United States Sentencing Commission; (6) the need to avoid
unwarranted sentence disparities among similar defendants found guilty of similar conduct; and
(7) the need to provide restitution to victims of the offense. See 18 U.S.C. § 3553(a). The Court
now addresses each factor in tum.
Ill. Analysis
A. The Nature and Circumstances of the Offense and the History and Characteristics
of Defendant
The first§ 3553(a) factor requires the Court to evaluate "the nature and circumstances of
the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(l).
I. Family and Personal Background
Defendant was born on Janumy 10, 1997, in Sleepy Hollow, New York. PSR ,r 44.
Defendant has a close relationship with his mother, who is a registered nurse. Id. As a child,
Defendant witnessed his father physically abuse his mother. Id ,r 46. When Defendant was six
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years old, his father was sentenced to twelve years in federal prison on drug-related charges,
after which he was deported to his native country of Jamaica. Id. ,r 44. Defendant's father's
incarceration impacted the family emotionally and financially. Id. ,r 46. Defendant has not
spoken to his father in ten years and reports being resentful of his absence. Id. ,r,r 44, 46.
Defendant has tlu·ee maternal siblings. Id. ,r 45. Defendant's mother and siblings are
aware of the instant offense and are supportive of him. Id. ,r,r 44--45. Defendant has never been
married, and he has no children. Id. ,r 48. Defendant has been in a romantic relationship with his
current partner since 2021; she is aware of the instant offense and is supportive of him. Id.
2. Educational and Employment History
Defendant attended Ossining High School in Ossining, New York from 2011 to 2013. Id.
,r 62. He was expelled in 2013 after being arrested for unspecified reasons. 1 Id. In 2015,
Defendant obtained his General Educational Development ("GED") diploma from Susan Miller
Dorsey Senior High School in Los Angeles, California. Id. ,r 61.
In 2012, Defendant worked as a patt-time grocery bagger. Id. ,r 66. In 2016, he began
freelance modeling, which he continues to do today. Id. ,r,r 63, 66. From 2019 to 2022,
Defendant co-owned a record label. Id. ,r 65. At present, Defendant co-owns Mood Swings
LLC, a clothing brand based in Los Angeles. Id. ,r 64.
1 No corresponding arrest appeared on Defendant's NCIC criminal records report. PSR ,r 62 n. l.
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3. Prior Convictions
Defendant has several prior convictions. In 2017, Defendant was sentenced to ten years'
probation for Aggravated Assault because he shot an individual in the thigh. Id. ,r 32. In 2018,
Defendant was sentenced to two years' probation for Intent to Distribute a Controlled Dangerous
Substance in the Third Degree. Id ,r 31.
4. Physical and Mental Health
In 2019, Defendant was hit by a car when he was riding a motorcycle. Id ,r 52.
Defendant underwent surgery for his injuries and does not experience residual pain from the
accident. Id. During the instant offense, Defendant was shot in the stomach. Id. ,r 51. Bullet
fragments remain his liver; he has stomach and back pain from this injury. Id
5. Substance Abuse
Defendant began using marijuana at age 12. Id ,r 57. While on pretrial release, he has
tested positive for marijuana at least three times. Id Defendant began misusing Promethazine,
Percocet, and Codeine at age 21; he stopped using these drugs due to his arrest for the instant
offense. Id. ,r 59.
6. Nature and Circumstances ofthe Offense
The Comi's previous statements address the nature and circumstances surrounding the
instant offense. See supra Part I.
B. The Need for the Sentence Imposed
The second § 3553(a) factor instructs the Court to consider "the need for the sentence
. imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D) to provide the defendant
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with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner." 18 U.S.C.§ 3553(a)(2).
The Court's sentence recognizes the seriousness of Defendant's conduct. Defendant
possessed a firearm knowing he was a previously convicted felon and then brandished it during
• an altercation in a crowded residential neighborhood. His co-defendant used this same gun to
open fire on Defendant's assailant. The Court's sentence will deter Defendant and others from
engaging in similar conduct, justly punish Defendant for his crimes, and protect the public from
Defendant's actions. Accordingly, the Court's sentence is "sufficient, but not greater than
necessary" to comply with the purposes set forth in this factor. 18 U.S.C. § 3553(a).
C. The Kinds of Sentences Available
The third§ 3553(a) factor requires the Court to detail "the kinds of sentences available"
for Defendant. 18 U.S.C. § 3553(a)(3). Defendant pled guilty to one count of being a Felon in
Possession of Ammunition in violation of 18 U.S.C. §§ 922(g)(l), 924(a)(8). Plea
Agreement ,i 1.
Defendant faces a maximum term of fifteen years' imprisonment and no minimum term.
18 U.S.C. § 924(a)(8). Defendant also faces a maximum term of three years' supervised release.
18 U.S.C. § 3583(b)(2). If a condition of release is violated, Defendant may be sentenced to up
to two years' imprisonment without credit for pre-release imprisonment or time previously
served on post-release supervision. 18 U.S.C. §§ 3583(b), (e). Defendant is eligible for a term
of probation of one to five years. 18 U.S.C.§ 3561(c)(1). Unless extraordinary circumstances
exist, the Court must impose one of the following as a condition of probation: a fine, restitution,
or period of community service. 18 U.S.C. § 3563(a)(2).
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In addition to facing terms of imprisonment and supervised release, Defendant faces a
maximum fine of$250,000.00. 18 U.S.C. § 3571(b). Although Defendant is able to pay a fine,
defense counsel asks the Court to refrain from imposing one "[d]ue to [Defendant's] present
financial circumstances and likely term of incarceration." Def. Sent'g Mem. at 1. The
Government may seek forfeiture in accordance with 18 U.S.C.§ 924(d)(l) and 28 U.S.C.
§ 2461 (c); see also Indictment ,r 2. The Court is required to impose a mandatory special
assessment of$100.00 per count pursuant to 18 U.S.C. § 3013(a)(2)(A).
D. The Kinds of Sentence and the Sentencing Range Established for Defendant's
Offense
The fourth§ 3553(a) factor requires the Court to discuss "the kinds of sentence and the
sentencing range established for ... [t]he applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines." Id § 3553(a)(4)(A).
Defendant pied guilty to one count of Felon in Possession of Ammunition in violation of
18 U.S.C. § 922(g)(l). Plea Agreement,r 1.
The parties disagree as to which Guidelines provision applies here. According to
Probation, the applicable guideline is U.S.S.G. §2K2.l(c)(l)(A), which directs the Court to
U.S.S.G.§2Xl.1-the Guidelines provision for Attempt, Solicitation, or Conspiracy-in the
event: (1) "the defendant used or possessed any firearm or ammunition ... in connection with
the commission or attempted commission of another offense"; and (2) the resulting offense level
is greater. Pursuant to U.S.S.G.§2Xl.l(c), "[w]hen an attempt, solicitation, or conspiracy is
expressly covered by another offense guidelines section," the Court must "apply that guideline
section." Probation contends the instant offense is expressly covered by U.S.S.G. §2;\2.1, the
Guideline for Assault with Intent to Commit Murder and Attempted Murder. Applying U.S.S.G.
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§2A2.1, Probation argues Defendant has a base offense level of33 because "the object ofthe
offense would have constituted first degree murder."
According to the Government and defense counsel, the cross-reference to U.S.S.G.
§2A2.1 for Assault with Intent to Commit Murder and Attempted Murder does not apply here.
Def. Obj. to PSR at 1, ECF No. 75. The Government and defense counsel contend the
appropriate Guidelines provision is U.S.S.G. §2K2.l(a)(2), under which Defendant has a base
offense level of 24 because he committed the instant offense after sustaining at least two felony
convictions ofeither a crime ofviolence or a controlled substance offense. The Government and
defense counsel believe a four-level enhancement under U.S.S.G. §2K2.l(b)(6)(B) applies for
possession ofa firearm in connection with another felony offense. This results in an offense
level of28.
All parties agree certain reductions to the total offense level apply, including a two-level
reduction under U.S.S.G. §3El.1 (Acceptance of Responsibility) and a one-level reduction under
U.S.S.G. §3El. l(b) (timely notice to the Government of Defendant's intention to enter a guilty
plea). Plea Agreement ,r 2. As calculated by Probation, these reductions result in a total offense
level of30. PSR ,r 7 5. As calculated by the Government and defense counsel, these reductions
result in a total offense level of25.
Probation recommends a sentence of 108 months' imprisonment; followed by two years'
supervised release with a special condition; and a $100.00 mandatory special assessment. Sealed
Prob. Sent' g Rec. at 1, ECF No. 50-1. The Government recommends a Guidelines sentence of
63-78 months' imprisonment. Gov't Sent'g Mem. at 1. Defense counsel recommends a
sentence oftwenty-four (24) months' imprisonment and three years' supervised release. Def.
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Sent' g Mem. at 1. This Court appreciates the sentencing arguments raised by all parties and has
considered each in tum.
E. Pertinent Policy Statement(s) of the Sentencing Commission
The fifth§ 3553(a) factor requires the Court to evaluate "any pertinent policy
statement ... issued by the Sentencing Commission." 18 U.S.C. § 3553(a)(5). The parties have
not drawn the Court's attention to any applicable policy statements. Finding none on its own, the
Court proceeds to the next§ 3553(a) factor.
F. The Need to Avoid Unwarranted Sentence Disparities
The sixth§ 3553(a) factor requires the Court to consider "the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct." 18 U.S.C. § 3553(a)(6). On this point, defense counsel discusses the sentence
imposed on Defendant's co-defendant, Messiah Ortiz,who received 121 months' incarceration
and two years' supervised release. Mem. and Order as to Messiah Ortiz, ECF No. 57. Defense
counsel argues Defendant deserves a much lower sentence than Ortiz because Defendant "only
came to possess the firearm because it was handed to him" by Ortiz. Def.Sent'g Mem. at 7.
Unlike Ortiz, moreover, defense counsel states Defendant "never fired the weapon," and only
"appeared to raise the firearm in direct response to Individual l's apparent brandishing of a gun."
Id The Government disputes this characterization, stating Defendant "coordinated with Ortiz to
bring a firearm to the altercation, which [Defendant] later drew and aimed at Individual-I."
Gov't Sent'g Mem. at 9. Further, the Government argues the circumstances surrounding
Defendant's possession of the firearm were not substantially different from O1tiz's possession,
noting Defendant "followed Ortiz to the [car] as O1tiz retrieved the firearm and, only upon
seeing Ortiz exit the [car], doubled back to re-engage in the argument." Id
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For the reasons stated in this Memorandum and Order, and considering the other six
§ 3553(a) factors, the Comt's sentence takes these facts into account and avoids unwarranted
sentence disparities.
G. The Need to Provide Restitution
Finally, the seventh§ 3553(a) factor requires the Com1 to touch upon "the need to
provide restitution to any victims of the offense." 18 U.S.C.§ 3553(a)(7). Restitution is not
applicable in this case. 18 U.S.C.§ 3663.
IV. Conclusion
For the reasons set fo11h above, the Comt sentences Defendant to sixty-three (63)
months' imprisonment; two years' supervised release with both the standard and special
conditions of supervision; and a $100.00 mandatory special assessment. This sentence is
sufficient but no greater than necessary to accomplish the purposes of§ 3553(a)(2). The Comt
does not impose a fine given Defendant's present fipancial circumstances.
The Com1 expressly adopts the factual findings of the Sealed Presentence Investigation
Report and Addenda thereto, as corrected herein, to the extent those findings are not inconsistent
with this opinion.
Dated: December 11, 2025
Brooklyn, New York
HON. WILfrAM F. KUNTZ, II
UNITED STATES DISTRICT JUDGE
s/WFK
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