5 takeaways from court ruling on Bongiovanni presentence report

U.S. District Court Judge Lawrence Vilardo ordered revisions to the presentence report for former Drug Enforcement Administration Agent Joseph Bongiovanni.

A jury last year convicted Bongiovanni on seven of 11 charges, including four counts related to the Ronald Serio and Michael Masecchia drug-trafficking organization.

The revisions will lead to a sentencing range that recommends about a decade in prison for Bongiovanni, longer than he wants, but shorter than prosecutors will seek.

Here are five things to know about the judge's decision:

The numbers

Judge softens sentencing range in Bongiovanni case, but ex-DEA agent could face decade in prison

The offense level score calculated for sentencings ranges from 1 for the least severe offenses to 43 for the worst crimes. Higher offense level scores lead to longer prison sentences. The initial presentence report calculated a score of 38. Bongiovanni wanted 16. Prosecutors called for 43. Vilardo's decision puts the number at 31.

Deciding the extent of drugs

Bongiovanni's offense level is largely driven by the amount of drugs “reasonably foreseeable” for him to know about.

Vilardo rejected the prosecution request to include all of the drugs that witnesses testified about, but also rejected the defense request that cocaine not be considered.

Vilardo found no evidence that Bongiovanni willfully caused fentanyl to be distributed, but found that up to 110 pounds of marijuana and 4½ pounds of cocaine were foreseeable to him.

A DEA agent was cleared of accepting a bribe from Peter Gerace. So how could Gerace be convicted of bribing him?

Little Gerace effect 

Three of Bongiovanni’s convictions relate to Pharaoh’s Gentlemen’s Club owner Peter Gerace Jr., for internal DEA memos he wrote or for what he told investigators about his past contact with the Cheektowaga strip club owner.

But the offense-level calculation is driven more by what Bongiovanni did for Masecchia and Serio than what he said or wrote about Gerace.

Firearms

Vilardo agreed with probation officials that Bongiovanni's offense level should be higher because of firearms.

"The Court finds that Bongiovanni could have reasonably foreseen that members of the Serio DTO whom he agreed to protect possessed firearms in connection with the narcotics conspiracy," Vilardo said in his decision. 

The agent was no manager

Prosecutors called Bongiovanni a supervisor of the criminal activity.

But Vilardo said the evidence suggested Bongiovanni controlled nobody, not even Louis Selva, the longtime friend of Bongiovanni’s who testified against him.

"The government confuses evidence that Bongiovanni provided advice to Selva about how to evade detection with evidence that Bongiovanni controlled Selva," Vilardo said.