Case 1:16-cr-02389-JCH Document 53 Filed 10/31/17 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, )

)
Plaintiff, )
)
vs. ) CRIMINAL NO. 16-2389 JCH
)
)
ANTHONY GAMBINO, )
)
Defendant. )

UNITED STATES SENTENCING MEMORANDUM

The United States hereby submits this sentencing memorandum in the above-referenced

case. As grounds therefore, the United States provides the following:

CASE SUMMARY

The defendant pleaded guilty to a two-count indictment charging a violation of 18 U.S.C.

922(g)(1), felon in possession of a firearm, and a violation of 18 U.S.C. 704(b), stolen valor.

The defendant pleaded without the benefit of a plea agreement. The advisory guideline range

of imprisonment is 30 to 37 months. Presentence Report (PSR) at 85. The United States

objects to neither the facts stated in the PSR nor the PSRs calculation of the advisory guideline

range. The United States seeks a sentence at the high end of the guideline range.

ARGUMENT

The defendants request for a dramatic downward variance to probation rests on two

assertions: (1) that his criminal conduct was caused by a personality disorder; and (2) that he

possessed the firearms for a lawful purpose. These assertions, however, are lacking in

evidentiary support or are demonstrably untrue. The defendant has made no supportable

argument justifying a downward variance. Indeed, because this is not a simple felon in
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possession case, but is rather in essence a fraud case with stolen valor at its core, the United

States would argue that only a sentence at the high end of the guidelines range is sufficient, but

not greater than necessary, to satisfy the sentencing objectives set forth in 18 U.S.C. 3553(a).

The United States therefore recommends a sentence of 37 months imprisonment.

A. The offense conduct was not caused by a personality disorder.

The defendant asserts that the offense marks a profound deviation from his law abiding

life which is solely attributable to his diagnosed personality disorder. (Def.s Sentencing

Memo. at 10.) The first part of this equation is patently untrue. The offense does not mark a

deviation from the defendants law-abiding life for the simple reason that the defendant has not

led a law-abiding life. As the PSR demonstrates, the defendant has prior arrests for commercial

burglary, fraud, failure to appear, menacing with a deadly weapon, driving under the influence,

unlawful carrying of a firearm, and theft. (PSR, 40-50.) The defendant is also $30,012 in

arrears on his child support obligations. (PSR, 59.) In November 1993, the defendant

received an other than honorable discharge from the United States Marine Corps after it was

discovered he fraudulently enlisted under his brothers name. (PSR, 81.) Since then, the

defendant has fraudulently and unlawfully held himself out to be a 16 year combat Marine

injured in the line of duty. (PSR, 64.) The defendants criminality has been consistent and

virtually continuous since before his fraudulent enlistmentquite the opposite from a law-

abiding life.

Second, there is absolutely no evidence showing that the defendants claimed narcissistic

personality traits caused him to unlawfully possess firearms. The defendant argues specifically

that his narcissistic personality traits caused him to mistakenly believe[] that, because of the

passage of time, he was legally allowed to possess firearms. (Def.s Sentencing Memo. at 14.)

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Standing alone, there is no obvious connection between narcissism and ones understanding of

the law. It is quite possible to have a personality disorder, or even a mental illness, and

nonetheless to understand ones legal obligations. The defendant provides no evidence or

authority establishing either theoretically or in the defendants particular case a correlation

between a narcissistic personality and a diminishment in understanding ones legal obligations.

The defendant does not explain, nor is it otherwise apparent, what it is about narcissism that

makes one not able to understand ones legal obligations. The defendant also does not explain

why a narcissistic person, compared to the average person, would be more likely to possess a

firearm in violation of the law. Indeed, the defendants own conduct appears to prove

otherwise; since his arrest, notwithstanding his supposed narcissism, the defendant has stopped

passing himself off as a war hero and has not acquired any firearms. The defendant, even

without treatment, is capable of behaving in conformance with the law, if he so chooses. The

defendant simply wants us to believe that his supposed narcissism caused him to unlawfully

possess firearms in violation of the law, notwithstanding the complete lack of evidence or even

logic supporting such a conclusion. The Court should resist the defendants invitation to

engage in such magical thinking.

If it is true that the offense conduct was solely attributable to defendants claimed

narcissistic personality traits, then the Court deserves to know what other criminal conduct

narcissism causes. In fashioning a sentence that protects the public from further crimes of the

defendant, it would be important to know, for instance, whether narcissism makes one more

likely to commit murder or rape or other heinous crimes. It also would be important for the

Court to know whether the defendants narcissistic personality traits will continue to cause the

defendant to commit any other crime even while he is undergoing treatment; if that is the case,

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then the defendant should be incarcerated for at least as long as it is necessary to cure him in

order to protect the public from his further crimes.

Finally, even if the defendants claimed narcissistic personality traits played some role in

the defendants offense conduct, to assert that the offense conduct was solely attributable to his

narcissism entirely strips the defendant of any human agency and therefore from any

accountability whatsoever for his crimes. The defendant cannot admit guilt at a plea hearing

and then argue at sentencing that his crimes are solely attributable to some force over which he

has no control. The defendants supposed narcissistic personality traitsa mere personality

disorder, not a biologically based disease of the mind like psychosis or schizophreniadoes

not render the defendant a soulless automaton, devoid of free will, incapable of knowing the

difference between right and wrong, truth and fiction. Justice is not served by defendants

attempt to characterize his criminality as a health condition, and on this basis to absolve or

mitigate his criminal responsibility. This position is as wrong as it is nave. Crime is almost

always a matter of choice, of moral differentiation, of a lack of self-control. Not every crime,

and certainly not this one, is a mere function of mental illness or addiction.

Most of the time, as in this case, crime is simply the result of poor decision-making and a

lack of moral fiber. Deception of the type the defendant engaged in is not a mental defect; it is

a moral failing. The defendant knew exactly what he was doing when he passed himself off as

a Marine Corps war hero, and he was perfectly capable, even if less so than a non-narcissist, to

refrain from doing so. The defendant chose to deceive the world by pretending to be a war

hero. The defendant chose to wear a Marines uniform, knowing he had no right to do so. The

defendant chose to wear a Purple Heart, knowing he had never been injured in combat. The

defendant chose to wear a Combat Action Ribbon, knowing he had never been in combat. The

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defendant, his poor decisions and his lack of moral fiber, not his alleged disease of the mind, is

what caused him to engage in the offense conduct. The offense conduct was not solely

attributable to the defendants claimed narcissistic personality traits; rather, it was attributable

to the defendants knowing and willful choices, to his own moral agency. The defendant must

be held accountable for his knowing and willful choices.

B. The defendants possession of the firearms was part of a fraud.

Next, the defendant argues that he possessed the firearms for a lawful purpose, namely,

for hunting and target practice. This, too, is untrue. Rather, the evidence shows that the

defendant possessed the firearms as part of a fraud to provide tactical and firearms training under

the false pretense that he was a decorated combat veteran.1 (Def.s Sentencing Memo. at 16-

17.)

As the PSR explains, the defendant came to the attention of law enforcement after

filming a promotional video for his company, Gambino Security and Safety Corp. (PSR, 6-

9.) The video depicted the defendant and others engaged in different types of tactical and

firearms training. (PSR, 6.) When law enforcement learned that the defendant was a

convicted felon, they used a ruse to contact the defendant and interview him for purposes of his

claimed ability to provide tactical training for a fictitious Middle Eastern company. As part of

his pitch to the fictitious company, the defendant claimed, without prompting, that he was a

combat veteran and showed off a photo in which he was wearing a Marine Corps uniform, a

Purple Heart, and a Combat Action Ribbon. (PSR, 8.) The defendant volunteered this false

1
We do not address the defendants discussion of United States Sentencing Guidelines (USSG) 2K2.1(b)(2), other
than to agree with the defendant that it does not apply and to add that, since it does not apply, there is no basis for
considering it as a basis for either a downward departure under the USSG or a downward variance under 18 U.S.C.
3553.

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information in order to enhance his chances of securing a valuable contract to provide tactical

and firearms training. Possession of the firearms was part and parcel of this fraud. The

defendant possessed the firearms for the unlawful purpose of providing firearms and tactical

training under fraudulent pretenses, namely, the pretense that the person providing the training

was a combat-tested and decorated Marine Corps veteran. And, this was not a fraud without

consequence. The defendant was not a combat-tested Marine Corps veteran and did not possess

the training or experience necessary to provide the services he was attempting to sell. Law

enforcement was fortunate to stop the defendant before he duped someone into hiring him to

provide services he was not even vaguely competent to providean eventuality that could have

resulted in loss of life.

C. A downward variance is not warranted.

Congress has directed sentencing courts to impose a sentence sufficient, but not greater

than necessary to comply with four statutorily defined purposes enumerated in 18 U.S.C.

3553(a)(2):

(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 with needed educational or vocational

training, medical care, or other correctional treatment in the most effective
manner . . . .

18 U.S.C. 3553(a)(2)(A)(D). Section 3553(a) further directs sentencing courts to

consider: (i) the guidelines; (ii) the nature of the offense and the defendant's character; (iii) the

available sentences; (iv) a policy favoring uniformity in sentences for defendants who commit

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similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. 3553(a)(1),

(3)(7).

In Gall v. United States, 552 U.S. 38, 50-52 (2007), the Supreme Court explained how

sentencing in the district court should proceed in meeting its statutory sentencing mandate.

First, a district court must accurately calculate the applicable Guidelines range. Id. After

considering the correct guidelines range, the district court must then consider all of the 18 U.S.C.

3553(a) factors to determine the appropriate sentence. Id. The district court must make an

individualized assessment based on the facts presented. Id. at 50. If the district court

determines that a sentence outside the guidelines is most appropriate, it must consider the extent

of the deviation and ensure that the justification is sufficiently compelling to support the degree

of the variance. Id.; see also United States v. Nolf, 30 F.Supp. 3d 1200, 1222 (D.N.M.

2014)(Browning, J.)(describing three-step sequence in sentencing proceedings).

Although the Guidelines ranges are no longer mandatory, both the Supreme Court and

the United States Court of Appeals for the Tenth Circuit have clarified that, while the Guidelines

are one of several factors enumerated in 18 U.S.C. 3553(a), they are entitled to considerable

deference. United States v. Tarango, ___ F. Supp. 2d ___, 2015 WL 10401775 * 9 (D.N.M.

Oct. 29, 2015) (Browning, J.) (citing Rita v. United States, 551 U.S. 338, 349 (2007)(Breyer,

J.)(The Guidelines as written reflect the fact that the Sentencing Commission examined tens of

thousands of sentences and worked with the help of many others in the law enforcement

community over a long period of time in an effort to fulfill [its] statutory mandate.); United

States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006)(Tymkovich, J.)(describing the Guidelines as

not just one factor among many), overruled on other grounds by Gall v. United States, 552

U.S. 38 (2007)(Stevens, J.), as recognized in United States v. White, 265 Fed. Appx. 719, 728 n.8

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(10th Cir. 2008)(Anderson, J.)(unpublished)). The Guidelines are significant, because they are

an expression of popular political will about sentencing that is entitled to due consideration ...

[and] represent at this point eighteen years worth of careful consideration of the proper sentence

for federal offenses. Id. (citing United States v. Cage, 451 F.3d at 593 (internal quotation

marks omitted)).

The defendant argues that a variance is justified in this case because of his long-standing

mental health problem and because he possessed the firearms for a lawful purpose. (Def.s

Sentencing Memo. at 2.) As discussed above, these circumstances do not warrant a downward

variance because the defendants claimed personality disorder did not cause the offense conduct,

as the defendant claims, and he did not possess the firearms for a lawful purpose. Moreover,

the defendants history and characteristics do not warrant a downward variance. The evidence

establishes that the defendant had a normal childhood, supportive parents, and all the same

opportunities for education and employment as the average person; there is no suggestion that he

suffered abuse or any circumstances that would make him unusually susceptible to a life of

crime. He has also had steady employment earning good money. The defendant wanted for

nothing and can blame only his lack of honor and bad character for living a life marked by

deception and criminality. Even if the defendant possesses narcissistic personality traits, the

evidence establishes that the defendant is readily capable of discerning right from wrong and has

sufficient self-control, when he so chooses, to refrain from unlawful conduct. Whatever the

reason, the defendant freely chose to engage in the offense conduct and only has himself to

blame for doing so. He deserves punishment accordingly.

Far from stating grounds for a downward variance, the foregoing establishes the kind of

history and characteristics that warrant a sentence at the high end of the advisory guideline range

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under 18 U.S.C. 3553(a). The nature of the offense was serious. Violation of 18 U.S.C.

922(g) is a serious crime that carries a potential penalty of ten years imprisonment. The

purpose of this statute is to keep guns out of the hands of those who have demonstrated that

they may not be trusted to possess a firearm without becoming a threat to society.

Scarborough v. United States, 431 U.S. 563, 572 (1977)(quoting 114 Cong. Rec. 13869 (1968)).

A person convicted of a felony is just such a person and is considered presumptively

dangerous under 18 U.S.C. 922(g). Lewis v. United States, 445 U.S. 55, 63-64 (1980). The

defendant in this case was a convicted felon and thus fell within that class of persons who

Congress deemed presumptively dangerous and a threat to society. Indeed, in the instant

case, the defendant possessed the firearms as part of an unlawful and fraudulent scheme to

engage in tactical and firearms training in the Middle East under the false pretext that he was a

decorated combat veteran. This fraud posed a serious threat to the public safety.

Moreover, the circumstances of the offense conduct were further aggravated by the

defendants false claim of being a Marine combat veteran who had been awarded the Purple

Heart and the Combat Action Ribbon, a violation of 18 U.S.C. 704(b). The Purple Heart is

awarded only to members of the armed forces who are killed or wounded in any action with an

opposing armed force of a foreign country in which the armed forces of the United States are or

have been engaged, or under similar circumstances involving action by an enemy force.

Executive Order 11016 (1962). The Combat Action Ribbon is authorized for wear only by

Marines who have actively participated in ground or surface combat. COMDTINST

M1650.25E Medals and Awards Manual (15 August 2016). By wearing a Purple Heart and a

Combat Action Ribbon, the defendant claimed to have met these criteria. By wearing these

decorations, the defendant fraudulently sought to bestow upon himself the solemn honor and

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meaning of these decorations. As one Gold Star mother observed, stolen valor is not a

victimless crime, because [o]ur Nations highest military honors are awarded to a staggeringly

small percentage of the overall population[,] and [e]ven measured against the one-half of one

percent who currently serve, the decimal point is followed by a bunch of zeros. Denise

Williams, The Stolen Valor Epidemic and Why Civilians Should Care. Chicago Now

(October 14, 2014). The defendant, having served alongside Marines for a few months, surely

understood the significance of a Purple Heart and a Combat Action Ribbonrarities even among

Marines. Yet he knowingly chose to steal honors that rightfully belong to an exceptionally

courageous few, some of whom paid for their Purple Heart with their lives.

Given the nature and circumstances of the offense and the history and characteristics of

the defendant, only a sentence at the high end of the guidelines range is sufficient to promote

respect for the law and to provide just punishment for the offense. The defendant not only

possessed firearms and ammunition in violation of the law, but he possessed an especially

dangerous weapon, namely, a semi-automatic weapon capable of accepting a high-capacity

magazine, and he possessed these weapons in connection with a fraud perpetrated under

especially despicable pretensesan effort to dishonor some of the highest military decorations

our Nation can bestow. These several aggravating factors warrant a severe punishment.

Only a sentence of 37 months is adequate to afford adequate deterrence and to protect the

public from further crimes of the defendant. The defendants fraud was not a spur of the

moment deviation from an otherwise lawful life, but rather the latest manifestation of the

defendants years-long theft of an honorable status he never earned. The defendants deception

spanned approximately two decades, and thus a lengthy sentence is required to ensure the

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defendant does not quickly return to the fraudulent life he painstakingly constructed over the

greater part of his adult life.

Finally, a sentence of 37 months is necessary to ensure the defendant receives the

correctional and psychological treatment he needs to cure him of his narcissistic tendencies and

to learn the value of good character, truth, and honor. This can take time. As Dr. Marshall

noted: Although personality disorders are generally not amendable to psychotherapy, once an

individual with a personality disorder becomes sufficiently distressed by the complications of

their behaviors they could benefit, given adequate motivation, from longer term weekly (18

month to three years) cognitive behavioral [therapy]. (Def.s Sentencing Memo. at 16.) To

be on the safe side, the defendant needs 37 months imprisonment to ensure he has sufficient

time to undergo the therapy Dr. Marshall indicates might be helpful. And, one thing is for sure:

there is next to no chance the defendant will receive the necessary therapy if he is sentenced to a

term of probation and resumes his life as a long-haul truck driver.

For all these reasons, the United States submits that only a high-end guidelines sentence

is sufficient, but not greater than necessary to comply with the statutorily defined purposes

enumerated in 18 U.S.C. 3553.

CONCLUSION

Given the totality of the undisputed facts detailed in the PSR and for the reasons stated

above, a sentence of 37 months imprisonment is no greater than necessary to satisfy the

purposes of 18 U.S.C. 3553(a). The nature and circumstances of the instant offense and the

history and characteristics of the defendant warrant a high-end guidelines sentence, as does the

need for a sentence that reflects the seriousness of the offense, affords adequate deterrence to

criminal conduct, promotes respect for the law, provides just punishment for the offense, and

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affords sufficient time for the defendant to receive necessary correctional and psychological

treatment.

Respectfully submitted,

JAMES D. TIERNEY
Acting United States Attorney

Electronically filed 10/31/2017

GEORGE C. KRAEHE
Assistant U.S. Attorney
P.O. Box 607
Albuquerque, New Mexico 87103
(505) 346-7274

I HEREBY CERTIFY that on the 31st day

of October 2017, I filed the foregoing
pleading electronically through the
CM/ECF system, which caused counsel
of record for defendant to be served
by electronic means.

Filed Electronically
GEORGE C. KRAEHE
Assistant U.S. Attorney

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