Court filing

Response in Opposition by USA as to Denis Casseus re 62 Motion for compassionate release — USA v. Casseus (Dkt. 70, M.D. Fla.)

Filed February 21, 2024 in USA v. Casseus; one of 53 filings from this case.

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Court	U.S. District Court for the Middle District of Florida
Filed	2024-02-21

U.S. District Court for the Middle District of Florida · No. 2:23-cr-00009-KCD-DNF · Doc. 70 · 2024-02-21 · Docket on CourtListener

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

UNITED STATES OF AMERICA

CASE NO. 2:23-cr-9-TPB-KCD

DENIS CASSEUS

UNITED STATES’ RESPONSE IN OPPOSITION TO
DENIS CASSEUS’S MOTION FOR COMPASSIONATE RELEASE

The United States opposes Denis Casseus’s motion for compassionate release.
Doc. 62. Denis Casseus has no medical or family circumstances that are
extraordinary and compelling, and, in any event, the 18 U.S.C. § 3553(a) factors do
not support his early release from incarceration.
I.
Background
On October 20, 2023, this Court sentenced Denis Casseus to serve 24 months
of imprisonment after he pleaded guilty to two counts of bank fraud, in violation of
18 U.S.C. §§ 1344 and 2, and one count of illegal monetary transaction, in violation
of 18 U.S.C. §§ 1957 and 2.1 Doc. 30 and 59. The charges were based on the
defendant submitting two fraudulent PPP loan applications to a financial institution
on behalf of two purported businesses, of which Denis Casseus claimed to be the
president and registered agent, seeking PPP loans through the SBA. Doc. 30. The

1 On October 20, 2023, the defendant’s partner, Ismaelle Manuel, was sentenced to a term of five years of
supervised release for committing three counts of bank fraud, in violation of 18 U.S.C. §§ 1344 and 2. United States
v. Ismaelle Manuel, Case No. 2:23-cr-3-TPB-KCD, Doc. 67. The total amount of PPP loan proceeds fraudulently
obtained by Ismaelle Manuel in the scheme was $411,417.00. United States v. Ismaelle Manuel, Case No. 2:23-cr-
3-TPB-KCD, Doc. 32.
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defendant falsely represented and certified that the PPP funds acquired from each of
the requested loans would be used to retain workers and maintain payroll or make
mortgage payments, lease payments, and utility payments on behalf of his
businesses. Id. In total, Denis Casseus’s false and fraudulent representations caused
the financial institution to approve and fund a total of $298,875.00 in PPP loans for
the two businesses. Id. The defendant was the sole signor on the bank accounts that
the PPP funds were deposited into. Id. Casseus conducted several online transfers
from each of the bank accounts of the businesses into his personal bank account.
Doc. 30. The defendant used the fraudulently obtained PPP funds that had been
transferred into his personal bank account to wire the funds to a title company, and
he used the funds towards the purchase of real property located in Cape Coral,
Florida. Id. Further, the money that Casseus wire transferred was the proceeds of
bank fraud, as Casseus used more than $10,000 in PPP loan funds towards the
purchase of his residence. Id.
The defendant was permitted to self-surrender on or before December 21,
2023. Doc. 58 and 59.
Denis Casseus is incarcerated at FPC Pensacola in Pensacola, Florida, is 45
years old, and is projected to be released on August 22, 2025. See BOP Inmate
Locator at https://www.bop.gov/inmateloc/ (last accessed on February 13, 2024).
Casseus has served almost nine weeks of the sentence imposed.
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The defendant has not sought any administrative remedy; therefore, Casseus
has not exhausted his administrative remedies. See Attachment A, Administrative
Remedy Generalized Retrieval, search conducted February 9, 2024.
On January 24, 2024, the defendant’s partner, Ismaelle Manuel, filed the
Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A) (Compassionate
Release), in the defendant’s name. Doc. 62.
On February 9, 2024, defense counsel for the defendant, Zeljka Bozanic, filed
a Motion to Reduce Sentence Based on Retroactive Application of Amendment 821
to the Sentencing Guidelines. Doc. 64.
II.
Memorandum of law
Pursuant to 28 U.S.C. § 1654, “[i]n all courts of the United States the parties
may plead and conduct their own cases personally or by counsel as, by the rules of
such courts, respectively, are permitted to manage and conduct causes therein.” The
defendant’s partner, Ismaelle Manuel, is not a party in this case. On January 22,
2024, Manuel signed the motion for compassionate release. Doc. 62 at 6. Further,
in her letter attached to the motion, Manuel acknowledges that she is submitting the
Motion for Sentence Reduction form with the attachment of the Proposed Release
Plan. Doc. 62-1 at 23. Therefore, the motion was not brought by Casseus and he
cannot be represented by his partner, who is a non-lawyer. Therefore, Manuel’s
motion for compassionate release filed for Casseus should be denied.
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Further, the motion for compassionate release does not establish a basis for
compassionate release in this case. The motion does not establish an extraordinary
and compelling reason to warrant such a reduction.
A district court has no inherent authority to modify a sentence; it may do so
“only when authorized by a statute or rule.” United States v. Puentes, 803 F.3d 597,
606 (11th Cir. 2015). One of those statutes is 18 U.S.C. § 3582(c)(1)(A), which
permits a court to reduce a term of imprisonment if the court determines that (1)
“extraordinary and compelling reasons warrant such a reduction,” (2) “such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission,” and (3) the § 3553(a) sentencing factors weigh in favor of a
reduction. Id.; see also United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021).
The Sentencing Commission’s applicable policy statement, set forth in USSG
§1B1.13, defines “extraordinary and compelling reasons” for purposes of section
3582(c)(1)(A), and it is binding on the courts. United States v. Bryant, 996 F.3d 1243,
1262 (11th Cir. 2021). Under section 1B1.13, “extraordinary and compelling
reasons” which may render a defendant eligible for a sentence reduction include any
or a combination of circumstances defined under the following categories: (1)
medical circumstances of the defendant; (2) advanced age plus length of term already
served; (3) family circumstances that result in the defendant being the only available
caregiver for a minor or incapacitated immediate family member; (4) sexual or
physical abuse of the defendant by an individual with custody or control of the
defendant during the term of imprisonment sought to be reduced; (5) other
Case 2:23-cr-00009-KCD-DNF Document 70 Filed 02/21/24 Page 4 of 12 PageID 300

circumstances similar in gravity to those in (1) through (4); and (6) an “unusually
long sentence,” if the defendant has served at least 10 years imprisonment and a
change in the law would produce a gross disparity between the defendant’s sentence
and the sentence likely to be imposed at the time the motion is filed. USSG
§1B1.13(b)(1)–(6).
If the court finds that an extraordinary and compelling reason exists, it still
may not reduce the defendant’s term of imprisonment under section 3582(c)(1)(A)
unless it also finds that the defendant’s release would not endanger the community
and that the factors listed in 18 U.S.C. § 3553(a) favor compassionate release. Tinker,
14 F.4th at 1237. If the defendant fails to establish any of the three requirements, the
court is not required to analyze the other requirements and cannot grant relief. See
United States v. Giron, 15 F.4th 1343, 1348 (11th Cir. 2021).
The defendant, as movant, bears the burden of establishing entitlement to
relief under section 3582. United States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014)
(addressing a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2)). The
defendant may move for compassionate release after “fully exhaust[ing] all
administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on
the defendant’s behalf or the lapse of 30 days from the receipt of such a request by
the warden of the defendant’s facility, whichever is earlier.” See United States v. Harris,
989 F.3d 908, 909–10 (11th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). The
exhaustion requirement is “mandatory, in the sense that a court must enforce the
rule if a party properly raises it.” Harris, 989 F.3d at 911 (internal quotation marks
Case 2:23-cr-00009-KCD-DNF Document 70 Filed 02/21/24 Page 5 of 12 PageID 301

omitted).
III.
Denis Casseus’s compassionate release motion
A. Exhaustion
Casseus has not exhausted his administrative remedies within the BOP.
Casseus has not sought a sentence reduction from BOP. In the motion filed by his
partner, she admits that the defendant did not submit a request for compassionate
release to the warden. Doc. 62. Because Casseus has failed to exhaust his
administrative remedies, his motion may be denied on that basis alone. See Harris,
989 F.3d at 911.
B. Extraordinary and compelling circumstances
Here, Denis Casseus requests a reduction of his sentence based on
extraordinary and compelling reasons. His partner indicated in the motion that the
caregiver of the defendant’s minor children has become incapacitated and he is the
only available caregiver for his children. Further in the motion, his partner states
that the request is due to his wife’s inability to withstand her mental health issues
while working and caring for their five children.2 Doc. 62. The motion further
provides that she is also going through back issues due to three major surgeries done
at once. From the medical documentation provided by Manuel, it appears that the
procedures occurred in 2021. Doc. 62-1 at 16-21. His partner stated that she is
unable to lift heavy objects, and the motion includes that the defendant wants to be

2 On October 20, 2023, this Court ordered Ismaelle Manuel to participate in a mental health treatment program
(outpatient and/or inpatient) and follow the probation officer’s instructions regarding the implementation of this
Court directive. United States v. Ismaelle Manuel, Case No. 2:23-cr-3-TPB-KCD, Doc. 67 at 5.
Case 2:23-cr-00009-KCD-DNF Document 70 Filed 02/21/24 Page 6 of 12 PageID 302

able to assist his family financially. Id. Section 1B1.13(b) permits a reduction of a
defendant’s sentence based on family circumstances when:
(3) Family Circumstances of the Defendant.—

(A) The death or incapacitation of the caregiver of the defendant’s
minor child or the defendant’s child who is 18 years of age or older and
incapable of self-care because of a mental or physical disability or a
medical condition.

(B) The incapacitation of the defendant’s spouse or registered partner
when the defendant would be the only available caregiver for the spouse
or registered partner.

(C) The incapacitation of the defendant’s parent when the defendant
would be the only available caregiver for the parent.

(D) The defendant establishes that circumstances similar to those listed
in paragraphs (3)(A) through (3)(C) exist involving any other immediate
family member or an individual whose relationship with the defendant
is similar in kind to that of an immediate family member, when the
defendant would be the only available caregiver for such family member
or individual. For purposes of this provision, “immediate family
member” refers to any of the individuals listed in paragraphs (3)(A)
through (3)(C) as well as a grandchild, grandparent, or sibling of the
defendant.

USSG §1B1.13(b)(3).

Casseus, or rather his partner who prepared and signed the motion for
compassionate release, has not shown that his partner and the mother of the children
is “incapacitated.” Instead, in the release plan submitted, his partner advised that
she and an adult daughter would be able to drive the defendant to any medical
appointments. Doc. 62-1 at 5. Further, in her letter to the Court, Manuel stated that
she has secured a job as a Med Tech/CAN from 10pm to 6am, and she advised that
she is able to take her son to school and get herself ready to go to class. Doc. 62-1 at
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22. Manuel stated that she will be starting classes in March 2024, as she had enrolled
in a program for business administration. Id.

While a tremendous burden has undoubtedly been placed on their children
and his partner due to their crime, that is always the case when parents choose to
commit crimes. See, e.g., United States v. Gonzalez, Case No. 17-cr-60223-BLOOM,
2021 WL 4066897, at *5 (S.D. Fla. Sept. 3, 2021) (“[L]oved ones are often adversely
impacted by a family member’s incarceration, and must make necessary and
inconvenient life adjustments during that individual’s incarceration. These often-
unavoidable consequences, however, do not create extraordinary circumstances[.]”).

In the Proposed Release Plan, submitted as an attachment to the Motion for
Compassionate Release, Manuel provided the ages of the children which included
that one child is 16 years old and another is 19 years old. Further, in the Proposed
Release Plan, Manuel indicated that she and their 19 year old child would be
assisting the defendant with transportation to medical appointments and work. Doc.
62-1. It appears that the mother of his children is not incapacitated, and one of their
children is an adult and is able to offer assistance. The Court should exercise its
discretion to deny Casseus’s request for relief.

The Court already considered at sentencing the family circumstances in this
case. The Court imposed a sentence of time served, with a term of five years
supervised release to follow for the defendant’s partner. (United States v. Ismaelle
Manuel, Case no. 2:23-cr-3-TPB-KCD, Doc. 67). With the sentence imposed, the
Court allowed a parent to remain with the four minor children.
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C.
Factors in 18 U.S.C. § 3553(a)3
Before granting a sentence reduction, the Court (in addition to finding
“extraordinary and compelling reasons”) must find that the § 3553(a) sentencing
factors weigh in favor of a reduction. 18 U.S.C. § 3582(c)(1)(A). The Court already
did a thorough balancing of the § 3553(a) factors at Casseus’s sentencing, and the
compassionate release allegation does not disturb the Court’s prior analysis that a 24-
month sentence was warranted.
This Court should not grant Denis Casseus a reduction of his sentence because
the applicable sentencing factors in section 3553(a) weigh against release. The
defendant has served approximately nine weeks of his 24 month sentence of
imprisonment.
At the sentencing hearing, the Court considered the factors set forth in Title
18, United States Code, Section 3553. The Court imposed a sentence that promoted
respect for the law, afforded an adequate deterrence, protected the public, and

3The factors in section 3553(a) are: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; to afford adequate deterrence to
criminal conduct; to protect the public from further crimes of the defendant; and to
provide the defendant with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner; (3) the kinds of
sentences available; (4) the kinds of sentence and the sentencing range established for
the applicable category of offense committed by the applicable category of defendant
as set forth in the guidelines; (5) any pertinent policy statement issued by the
Sentencing Commission; (6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct; and (7) the need to provide restitution to any victims of the offense. 18
U.S.C. § 3553(a).
Case 2:23-cr-00009-KCD-DNF Document 70 Filed 02/21/24 Page 9 of 12 PageID 305

reflected the seriousness of the crime. The Court addressed the defendant and his
partner concerning the nature and circumstances of the offenses. The Court
considered that the defendant admitted that it was his idea to file fraudulent PPP
loan applications, and he convinced his partner to file separate PPP loan applications
for which she was being sentenced. Further, the Court considered that the advisory
guideline range was 30 months to 37 months. See Doc. 45 at 14, PSR. At
sentencing, the Court advised that the guideline range was advisory, and the Court
imposed the sentence that the Court believed that the defendant deserved. The Court
imposed the sentence that was not greater than necessary. The sentence imposed
was 24 months of imprisonment.
In conclusion, Casseus has failed to exhaust his administrative remedies, and
this motion was filed by a non-lawyer. In the motion, Casseus has not established
that his familial situation is an extraordinary and compelling reason to warrant relief,
and the § 3553(a) factors would not support reducing his sentence. See United States v.
Espinal, No. 8:18-cr-299-VMC-AAS, 2023 WL 3995021, at *2 (M.D. Fla. June 14,
2023) (“Wanting to provide financially for one’s spouse and children is not a
qualifying ‘family circumstance’. . . .”).

Case 2:23-cr-00009-KCD-DNF Document 70 Filed 02/21/24 Page 10 of 12 PageID 306

THEREFORE, this Court should deny Denis Casseus’s motion for
compassionate release.

Respectfully submitted,

ROGER B. HANDBERG

United States Attorney

By:
s/ Yolande G. Viacava

Yolande G. Viacava

Assistant United States Attorney

Florida Bar No. 0110310

2110 First Street, Suite 3-137

Fort Myers, Florida 33901

Telephone: (239) 461-2200

Facsimile: (239) 461-2219

Email: yolande.viacava@usdoj.gov

Case 2:23-cr-00009-KCD-DNF Document 70 Filed 02/21/24 Page 11 of 12 PageID 307

U.S. v. DENIS CASSEUS

Case No. 2:23-cr-9-TPB-KCD

CERTIFICATE OF SERVICE

I hereby certify that on February 21, 2024, I electronically filed the foregoing

with the Clerk of the Court by using the CM/ECF system which will send a notice of

electronic filing to the following:

Zeljka Bozanic

zeljka@bozaniclaw.com

I hereby certify that on February 21, 2024, a true and correct copy of the
foregoing document and the notice of electronic filing were sent by United States
Mail to the following non-CM/ECF participant(s):

Denis Casseus

FPC Pensacola

Federal Prison Camp

P.O. Box 3949

Pensacola, Florida 32516

s/Yolande G. Viacava

Yolande G. Viacava

Assistant United States Attorney
Case 2:23-cr-00009-KCD-DNF Document 70 Filed 02/21/24 Page 12 of 12 PageID 308

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Response in Opposition by USA as to Denis Casseus re 62 Motion for compassionate release — USA v. Casseus (Dkt. 70, M.D. Fla.)

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