Robert Guerrero May Face 3.5 to 15 Years in Lock-up at Rikers: But Not Until After Mayweather Bout


By Bryanna Fissori
Legal Analyst

Last week welterweight boxing champion Robert Guerrero (31-1-1) made a mistake that has many saying that despite his winning record, he has been hit in the head too many times.

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Guerrero has been charged with illegally traveling with an unloaded Smith and Wesson M&P .40-caliber handgun and three unloaded 15 round capacity bullet magazines. It is obvious that Guerrero was unaware that the action would get him in trouble as the items were discovered in a routine pre-flight baggage check at John F. Kennedy Airport in Queens, New York. After he showed the locked gun box to a Delta agent, the police were called. There is no report of why he was carrying the weapon.

A California native, Guerrero is reported to have a valid license to carry the gun in the Golden State. Unfortunately, such licenses do not have reciprocity between states. If convicted on the charges he will very likely be facing significant prison time, especially given the strictness gun laws in New York.

Earlier in 2013 the State upped the penalties for unlawful possession of a firearm through the “New York Secure Ammunition and Firearms Enforcement Act (SAFE).”

SAFE was a big platform issue for New York New York Governor Andrew Cuomo during his most recent tenure, though within the last several weeks quotes having been circulating through main-stream media sources that elude to the Governor Administration distancing themselves from the Act, “Much of what’s in the law was drafted by people connected to Mayor Bloomberg and the Brady Center, not by the governor’s staff,” the (Cuomo administration) source said. “That’s why there are so many problems with it.’’

Under New York Penal Law 265.03 regarding Criminal Possession of a Weapon in the Second Degree (CPW2), even though people flying through New York airports may be properly checking their weapon unloaded in an approved case, the fact that they do not have a license to carry the weapon in the state the crime is punishable by a mandatory minimum of 3.5 years in prison even without a previous record. Maximum time is 15 years. The CPW2 charge is typically reserved for loaded weapons, but under the New York law, if the gun is capable of being loaded it is considered loaded.

Given the recent crack-down in New York gun laws, as a high-profile athlete, Guerrero could potentially be used as an example by the state’s legal system, representing that no one gets off easy for this type of violation. All signs currently point to a conviction of the defendant, though he may be able to find sympathetic prosecutors if he can convince them that it was an obviously innocent mistake that caused no harm. If things go in his favor, the best the boxer is likely to do is get the charges reduced to a lesser offense. Unfortunately Rule #1 for any defense is that “ignorance is not a defense.”

There are a few (very few) cases where the defendant has succeeded in similar circumstances without the lockup time, one of which was reported last month by a New York Criminal Law blog, though no details on the defense were given. In that case the defendant was given an adjournment in contemplation of dismissal (ACD). This basically means that if he/she doesn’t make the same mistake again in the next six months to a year, the case is dismissed.

Temporary relief comes to Guerrero and boxing fans in that his hearing on the charges is not scheduled until May 14. This means that the highly anticipated bout against Floyd Mayweather Jr. on May 4 will continue as planned.

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