LETTER by Adedayo Ilori addressed to Judge Mary Kay Vyskocil from Sanford Talkin dated… — USA v. Ilori et al (Dkt. 129)

Record facts

U.S. District Court for the Southern District of New York · No. 1:21-cr-00746-MKV · Doc. 129 · 2023-06-09 · Docket on CourtListener

Summary

A letter from defense counsel Sanford Talkin to the Honorable Mary Kay Vyskocil in United States v. Adedayo Ilori, 21 Cr. 746 (MKV), dated June 9, 2023 and filed as Document 129 in the U.S. District Court for the Southern District of New York. The letter reports the status of the defendant's sentencing issues at the court's request and asks for about three weeks to review the trial record. It states that the presentence investigation report calculates a total offense level of 40 while a tally of the guidelines calculation gives 38. It lists issues the defendant says he has not yet had the opportunity to address, including an objection to a loss figure derived from intended rather than actual loss, an objection to the more-than-10-victims enhancement on the ground that the Small Business Administration was the only victim, and an objection to an authentication feature enhancement.

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June 9, 2023 
Honorable Mary Kay Vyskocil 
United States District Judge 
Southern District of New York 
500 Pearl Street 
New York, New York 10007 
 
VIA ECF 
Re: 
United States v. Adedayo Ilori  
21 Cr. 746 (MKV) 
Dear Judge Vyskocil: 
 
 
Pursuant to the Court’s request at the last status conference in the above referenced case, 
defendant Adedayo Ilori (“Ilori”) respectfully submits this letter to report the current status of his 
sentencing issues and requests. As the Court is aware, the parties have previously filed their 
respective sentencing submissions and this letter will only address topics not raised in the 
submissions. I respectfully request time to review the trial record, including all exhibits, in order 
to determine whether the issues identified below require further briefing.   
 
Total Offense Level 
 
 
As an initial matter, the Presentence Investigation Report (“ PSR”) calculates Ilori’s Total 
Offense Level to be 40 (PSR ¶ 70, 75).  However, a review and tally of the United States 
Sentencing Guidelines (“Guidelines”) calculation set forth in paragraphs 74 reveals that the point 
total, and corresponding Total Offense Level is 38, not 40. 
 
Request for a Fatico Hearing 
 
 
Ilori concedes that he is not entitled to a Fatico Hearing regarding factual issues that were 
fully litigated during the trial of the instant case.  See United States v. Guang, 110 F.3d 110, 122 
(2d Cir. 2007).  Below, Ilori lists the sentencing issues that he has not had the opportunity to 
address to date: 
 
Loss Amount (¶ 67) 
 
Case 1:21-cr-00746-MKV     Document 129     Filed 06/09/23     Page 1 of 2

 
As stated in his sentencing submission, Ilori objects to a loss determination derived 
from “intended loss” rather than “actual loss.”  In the event that the Court does apply the” intended 
loss” approach, he objects to the inclusion of two items listed in Government Exhibit 750 in his 
loss calculation, (1) Source 4 Jet Corp./ William Jamison and (2) Creative Media Software 
Solution Inc./Thomas Hockenberry.  He submits that inclusion of these items in loss calculation 
has not been sufficiently addressed so as to preclude a Fatico Hearing.   
 
More than 10 Victims Enhancement (¶ 68) 
 
 
Defendant submits that that the Small Business Administration was the only victim.  
Therefore, the 10 or more victims enhancement is not applicable.  
 
Access Device/Authentication Feature Enhancement (¶ 70) 
 
 
To the extent that this enhancement is applied regarding authentication features, 
defendant objects.  Application Note 10 to Guidelines § 2B1.1(b)(11) states that the application 
definition of an authentication feature is set forth in 18 U.S.C. § 1028(d)(1) and this definition 
requires that feature “be used by an issuing authority.”  An “issuing authority” must be “a 
governmental authority entity or agency that is authorized to issue identification documents.”  18 
U.S.C. § 1028(d)(6)(A).  Ilori asserts that any authentication features that are relevant to his case 
were not issued by a governmental authority.   
 
Additional Concern 
 
 
Ilori has requested that he not be sentenced prior to receipt of the sealed portion of his trial 
transcript. I have initiated the process of obtaining those minutes by submitting an “Auth 24” 
request on the E-voucher system for Court authorization of payment to the Southern District 
Reporters.     
 
Conclusion 
 
 
Taking into account the time requirements of other commitments, I estimate that review of 
the record, exhibits and related materials will take approximately three weeks.  I am in possession 
of the trial minutes, save the sealed proceeding, and exhibits.  Additionally, to facilitate prompt 
resolution of the above identified sentencing issues, the government has agreed to identify any 
discovery materials that they are aware that address the concerns raised by defendant.  
 
 
Thank you for Your Honor’s consideration of this letter and I await direction based on the 
information reported herein.   
  
Very truly yours, 
 
 
 
 
 
 
 
Sanford Talkin 
Sanford Talkin 
 
cc: 
AUSA David Felton (by ECF) 
 
AUSA Juliana Murray (by ECF) 
Case 1:21-cr-00746-MKV     Document 129     Filed 06/09/23     Page 2 of 2

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