Information — U.S. v. Maurice Fayne (Dkt. 215, N.D. Ga. No. 1:20-cr-00228, GAND 278524)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 215 · 2021-09-08 · Docket on CourtListener

Full text

1 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
UNITED STATES OF AMERICA 
 
) 
                           
 
 
 
 
) 
 
 
 
 
 
 
 
) 
v. 
 
 
 
 
 
 
)  
CASE No.  
                             
 
 
 
) 
1:20-CR-228-MHC-JKL 
 
 
 
 
 
 
 
) 
MAURICE FAYNE, 
 
 
 
) 
 
 
 
 
Defendant.  
 
 
) 
 
DEFENDANT’S SENTENCING MEMORANDUM 
Maurice Fayne now files this sentencing memorandum in anticipation of his 
sentencing hearing.  Based on the information below, Mr. Fayne asserts that a 
sentence of 120 months is sufficient but not greater than necessary to achieve this 
Court’s sentencing goals.  
I. 
THIS COURT IS FREE TO FASHION A NON-GUIDELINE 
SENTENCE 
TO 
ADDRESS 
MR. 
FAYNE’S 
PARTICULAR 
CIRCUMSTANCES. 
 
As this Court well knows, the Federal Sentencing Guidelines are no longer 
mandatory.  These guidelines now serve as only one factor among several that courts 
must consider in determining an appropriate sentence. See Kimbrough v. United 
States, 552 U.S. 85, 90 (2007); see also United States v. Booker, 543 U.S. 220, 244 
(2005).  After Booker, district courts have been instructed to give “respectful 
consideration” to the sentencing guidelines, but as the Supreme Court’s post-Booker 
decisions make clear, district courts may impose non-guideline sentences when 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 1 of 13

2 
 
appropriate.  See Pepper v. United States, 131 S. Ct. 1229, 1247 (2011).  In fact, “[i]t 
has been uniform and constant in the federal judicial tradition for the sentencing 
judge to consider every convicted person as an individual and every case as a unique 
study in the human failings that sometimes mitigate, sometimes magnify, the crime 
and the punishment to ensue.” Pepper, 131 S. Ct. at 1239-40 (citing Koon v. United 
States, 518 U.S. 81, 113 (1996)).  “Underlying this tradition is the principle that the 
punishment should fit the offender and not merely the crime.” Id.; see also 
Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937) (“For the determination 
of sentences, justice generally requires consideration of more than the particular acts 
by which the crime was committed and that there be taken into account the 
circumstances of the offense together with the character and propensities of the 
offender.”). 
Pursuant to 18 U.S.C. 3553(a), the Court must consider the following factors 
when determining a sentence that is sufficient but not greater than necessary to meet 
its sentencing goals: 
(1) 
the nature and circumstances of the offense and the history and 
characteristics of the defendant; 
 
(2) 
the need for the sentence imposed— 
 
(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; 
 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 2 of 13

3 
 
(B) 
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; 
 
(3) 
the kinds of sentences available; 
 
(3) 
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— 
 
(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. 
 
Based on all of the circumstances outlined below, a sentence of 120 months 
is appropriate here.   
II. 
THE FACTORS OUTLINED IN 18 U.S.C. 3553(A) WEIGH IN FAVOR 
OF A SENTENCE OF 120 MONTHS IN CUSTODY.    
 
A. 
The nature and circumstances of the offense are serious, but a 
sentence of 10 years in prison is adequate to account for the 
seriousness of the offense.   
 
Mr. Fayne comes before the Court on charges related to an investment scheme 
involving his trucking business and a fraudulent application for a PPP loan.  Over 
2.4 million dollars was solicited from investors and roughly 2 million dollars was 
obtained through the PPP loan.  Mr. Fayne understands that the loss is sizeable, but 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 3 of 13

4 
 
he asserts that a sentence of 10 years in prison is sufficient to meet this Court’s 
sentencing goals in this case.  
B. 
A sentence of 10 years in prison is appropriate based on Mr. Fayne’s 
personal history and characteristics.   
 
Mr. Fayne accepts responsibility for his actions.  He comes before the Court 
asking for a very serious sentence in connection with his actions in this case.   
As outlined in the PSR, Mr. Fayne had a difficult childhood.  He is not unlike 
other defendants who have come before the Court in that he was raised by 
grandparents in the absence of his own parents.  His mother was incarcerated for a 
good portion of the time he was growing up and he was exposed to violence and 
substance abuse in the home at a young age.  By all accounts, Maurice was a smart 
child with good academic and athletic abilities.  He played football for his high 
school team and even played some in college.  He later enlisted in the military, but 
his enlistment was short-lived.  Along the way, he suffered from significant 
childhood trauma that has shaped who he has become as an adult.  He is now 
addressing these issues and he is owning up to his bad choices. He has repeatedly 
told counsel that he is ready to accept responsibility for his actions so he can move 
forward with his life.  The driving force for Mr. Fayne at this time is his desire to set 
an example for his children and to eventually be released from custody so he can 
continue to build a strong relationship with them. 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 4 of 13

5 
 
A sentence of 10 years will be a long and difficult punishment for Mr. Fayne, 
but he wants to get sentenced and move a BOP facility as soon as possible so that he 
can begin taking part in educational classes and counseling.  He hopes to finish his 
college degree in computer engineering and possibly learn the trade of diesel 
mechanics.  
A sentence of 10 years in prison will be sufficient but not greater than 
necessary to reflect the seriousness of the offense, to promote respect for the law, 
and to provide just punishment to Mr. Fayne.  It will also will afford adequate 
deterrence and will protect the public from future crimes.  Although he does have 
prior convictions, Mr. Fayne has never spent a significant amount of time in custody.  
A ten-year sentence will therefore serve as a great deterrent and punishment for Mr. 
Fayne.  He is 38 years old.  In 10 years, he will be 48.  His daughters will be 28 and 
26.  His grandmother will be 79.  This loss of time with his daughters and his 
grandmother weighs heavily on Mr. Fayne because his own mother was absent due 
to incarceration for much of his childhood.  He believes that her absence played a 
large part in shaping him into the person he is today.  He recognizes that he has 
started this same pattern with his children, but he is regularly touch with his 
daughters from the detention facility and he wants to go to a BOP facility in 
Texarkana so he can be close to them.  He wants to be present in their lives to the 
extent that he can while in custody.   
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 5 of 13

6 
 
A 10-year sentence will be a significant punishment for Mr. Fayne.  He 
understands that punishment is appropriate in this case, but he asks the Court to 
exercise its sentencing discretion and impose this sentence even though it is lower 
than his calculated guideline range.  
C. 
The 2B1.1 guidelines are not based on empirical data and the 
resulting sentencing range established for this offense is not a reliable 
indicator of an appropriate sentence.  
 
As the Eleventh Circuit Court of Appeals has explained, “When 
a guidelines provision is not supported by empirical data and national experience, a 
district court does not abuse its discretion if it decides that a within-
guidelines sentence is greater than necessary to achieve § 3553(a)’s purposes.”  
United States v. Sanzhez-Garcia, 565 Fed. Appx. 831, 833 (11th Cir. 2014) 
(unpublished), citing Kimbrough v. United States, 552 U.S. 85, 109-10 (2007).  
Although, it “is not an independent ground that compels the invalidation of 
a guidelines,” it is one factor that a district court could consider in exercising its post-
Booker right to depart from the guidelines. Id.  
As numerous federal courts have recognized, the fraud guidelines outlined in 
U.S.S.G 2B1.1 are not based on empirical data and often result in seemingly random 
and excessively harsh sentences.  See Barry Boss and Kara Kapp, How the Economic 
Loss Guideline Lost its Way, and How to Save It, Ohio State Journal of Criminal 
Law 
at 
https://moritzlaw.osu.edu/osjcl/2021/07/18/how-the-economic-loss-
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 6 of 13

7 
 
guideline-lost-its-way-and-how-to-save-it/ (collecting cases).  In a lengthy 
concurrence in United States v. Corsey, 723 F.3d 366, 380 (2nd Cir. 2013), District 
Judge Underhill explained the issue:  
The loss guideline, like the child pornography guideline at issue 
in Dorvee, was not developed by the Sentencing Commission using an 
empirical approach based on data about past sentencing practices. As 
such, district judges can and should exercise their discretion when 
deciding whether or not to follow the sentencing advice that guideline 
provides.  
The fraud guideline was initially set forth in Guideline section 2F1.1. 
The Sentencing Commission set the original 1987 Guidelines for 
economic offenses higher than historical sentences in order to further 
the deterrence and just punishment goals of sentencing. In 1989, in 
response to the savings and loan crisis, Congress passed legislation 
increasing the maximum penalties for financial fraud offenses and 
directing the Sentencing Commission to include specific offense 
characteristic enhancements in the fraud guideline. See Robert S. 
Bennett, et al., Taking it to the Banks: The Use of the Criminal Process 
to Regulate Financial Institutions, 109 Banking L. J. 28, 28-34 (1992). 
In 2001, the Sentencing Commission amended the Guidelines to 
combine the fraud, theft and embezzlement, and property destruction 
guidelines into a single guideline, section 2B1.1. That change was 
accompanied by the publication of a new loss table that had the effect 
of increasing offense level calculations, especially for high-dollar-value 
crimes. See U.S. SENTENCING COMM'N, REPORT TO THE CONGRESS: 
INCREASED PENALTIES UNDER THE SARBANES-OXLEY ACT OF 2002 at 7 
(2003). Most recently, the fraud guideline was amended in 2003 in 
response to Congressional directives in the Sarbanes-Oxley Act. Id. 
Those amendments included further changes to the loss table that added 
offense level points in the highest loss cases. U.S.S.G. app. C amend. 
647 (Nov. 1, 2003). The three sets of amendments to the loss table of 
the fraud guideline alone have effectively multiplied several times the 
recommended sentence applicable in 1987 for large-loss frauds, which 
itself was set higher than historic sentences. Each of the three increases 
in the recommended Guideline ranges for fraud crimes was directed by 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 7 of 13

8 
 
Congress, without the benefit of empirical study of actual fraud 
sentences by the Sentencing Commission. 
The history of bracket inflation directed by Congress renders the loss 
guideline fundamentally flawed, especially as loss amounts climb. The 
higher the loss amount, the more distorted is the guideline's advice to 
sentencing judges. As a well-known sentencing commentator has put 
it, “For the small class of defendants . . . convicted of fraud offenses 
associated with very large guidelines loss calculations, the guidelines 
now are divorced both from the objectives of Section 3553(a) and, 
frankly, from common sense. Accordingly, the guidelines calculations 
in such cases are of diminished value to sentencing judges.” Frank O. 
Bowman, III, Sentencing High-Loss Corporate Insider Frauds 
After Booker, 20 FED. SENT'G REP. 167, 168 (2008). 
Id. at 380.  See also United States v. Musgrave, 674 Fed. App’x 529, 530 (6th Cir. 
2016) (affirming downward variance for defendant with offense level of 25 and a 
$1.7 million loss to a sentence of one day of imprisonment, reasoning that “because 
the loss Guidelines were not developed using an empirical approach based on data 
about past sentencing practices, it is particularly appropriate for variances.”); United 
States v. Johnson, 2018 U.S. LEXIS 71257 at *16-20 (E.D. N.Y. 2018) (finding that 
application of the 16-point loss enhancement corresponding to loss amount would 
result in a sentence well out of the proportion to [an] appropriate sentence”); United 
States v. Parris, 573 F. Supp. 2d 744 (E.D. N.Y. 2008) (varying down from 300 
months to a 60-month sentencing and finding that the guidelines have “run so amok 
that they are patently absurd  on their face” after conviction for 6 counts of securities 
fraud and witness tampering); United States v. Gupta, 904 F. Supp. 2d 349, 351 (S.D. 
N.Y. 2012) (“By making a Guideline sentence turn, for all practical purposes, on 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 8 of 13

9 
 
[loss enhancement], the Sentencing Commission . . . effectively guaranteed that 
many such sentences would be irrational on their face.”); United States v. Lenagh, 
No. 8:07-CR-346, 2009 U.S. Dist. LEXIS 9226 at *17-18 (D. Neb. Feb. 6, 2009) 
(issuing 24-month sentence in a case involving $1.4 million fraud and affording the 
fraud guidelines “less deference” because they are not empirically grounded and as 
such are “not always a reliable proxy for the culpability of an individual 
defendant.”); United States v. Moody, 2013 U.S. Dist. LEXIS 109506 (D. Colo. 
2013) (finding that the sentencing commission’s conclusions underlying the 2B1.1 
guidelines are “apparently based on a gestalt formed by the review” of cases by the 
commission and noting that “the absence of hard data makes it impossible to form 
an opinion about the reasonableness of the guideline recommendation).   
As district judge Nicholas Garaufis from the Eastern District of New York 
noted in 2018: 
Many in the legal community have urged the Sentencing Commission 
to right this grievous wrong, and today I add my name to that lengthy 
list of judges, practitioners, scholars, and other commentators.  The 
problems with the loss enhancement have been evident since the 
inception of the Guidelines.  In 2004, then-District Judge Gerard Lynch 
generously called the loss enhancement a “questionable” aspect of the 
guidelines.  United States v. Emmenegger, 329 F. Supp. 2d 416, 427 
(S.D.N.Y. 2004). He identified all of the problems with this scheme: 
the weakness of the correlation between loss and moral seriousness; the 
rigidity of the loss amount overriding the diverse reality of complex 
financial crimes; the lack of any consideration of danger to society; and 
so on. Id. at 427-28. These concerns have continued unabated. Three 
years ago, the Sentencing Commission underwent the process of 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 9 of 13

10 
 
amending the fraud Guideline but left the loss-enhancement provision 
untouched. Representing the American Bar Association, James E. 
Felman, a prominent federal criminal defense lawyer, urged the 
Commission to overhaul the fraud Guideline to “reduce the 
unwarranted emphasis on both loss and multiple specific offense 
characteristics that, alone and especially in combination, tend to 
overstate the seriousness of many offenses.” Mark W. Bennett et 
al., Judging Federal White-Collar Fraud Sentencing: An Empirical 
Study Revealing the Need for Further Reform, 102 Iowa L. Rev. 939, 
979 (2017) (citing James E. Felman, Chairman, Am. Bar Ass'n 
Criminal Justice Section, Testimony on Behalf of the American Bar 
Association Before the United States Sentencing Commission for the 
Hearing on Proposed Amendments to the Federal Sentencing 
Guidelines Regarding Economic Crimes 9 (Mar. 12, 2015))).  
United States v. Johnson, 2018 U.S. Dist. LEXIS 71257 at *13 (E.D. N.Y. 2018).  
Because the fraud guidelines are not based on empirical data, this Court should give 
less weight to the advisory guideline range and, instead, craft a sentence that 
addresses Mr. Fayne’s unique circumstances.  
D. 
A sentence of 10 years in prison will help avoid unwarranted 
sentencing disparities.   
 
Mr. Fayne’s co-defendant, Michael Sargent, was permitted to plead to a 
separate information charging him with conspiracy under 18 U.S.C. 371.  This 
charge carries a maximum penalty of 5 years and the government has agreed to 
recommend 5 years for Mr. Sargent.  This is true despite the fact that Mr. Sargent 
has admitted to cultivating close (sometimes intimate) relationships with several of 
the victims in this case in order to solicit money from them.  “Romance fraud” was 
not a scheme that Mr. Fayne devised or participated in; Michael and Mark Sargent 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 10 of 13

11 
 
devised this part of the money-making scheme.  Both brothers took part in the same 
“ponzi” scheme alleged against Mr. Fayne but, due to plea negotiations, Mr. Sargent 
will be permitted to escape any risk that his guidelines could be hire than 5 years.   
It is unclear what the remaining co-defendant, Day Jay, will receive if or when 
he is ultimately sentenced.   
 
The only defendants that defense counsel is aware of to be sentenced in this 
district in connection with PPP or CARES Act fraud cases have received sentences 
far lower than 10 years.   See United States v. Green, 1:20-cr-00296-JPB-CMS-3 
($830,000 loss amount, but scheme involved $4 million in funded loans, sentenced 
to 41 months); United States v. Wright, 1:20-cr-00285-LMM-1 (loss amount of 
$300,000, sentenced to 12 months and 1 day).    
In other districts, PPP fraud cases with similar or higher loss amounts have 
resulted in defendants receiving sentences much lower than 10 years.  See e.g., Andre 
Clark, who pleaded guilty to one count of conspiracy to commit wire fraud and was 
sentenced to 33 months in prison after admitting to seeking $6,774,999 in fraudulent 
PPP loans with the help of co-conspirators1; Austin Hsu, who was sentenced to 2 
years in prison after submitting nine fraudulent disaster loan applications seeking 
over $1.1 million2; Donald Trosin, who conspired to launder over $1.3 million in 
 
1  
DOJ Press Release: https://www.justice.gov/opa/pr/man-sentenced-covid-19-relief-fraud 
 
2  
DOJ Press Release: https://www.justice.gov/usao-wdwa/pr/issaquah-man-sentenced-covid-19-relief-
fraud-scheme 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 11 of 13

12 
 
fraud, was sentenced to 40 months in federal prison after submitting more than 20 
fraudulent applications claiming that he had 120 employees on his payroll and 
over $5 million in payroll expenses.3 
Based on these sentences for similar crimes, Mr. Fayne asserts that a sentence 
of 10 years in prison is more than sufficient to meet this Court’s sentencing goals.  
E. 
Mr. Fayne has not contested the restitution amount or the list of 
victims provided by the probation department.  
 
One of this Court’s consideration in sentencing is the need to pay restitution 
to the victims of the case.  Mr. Fayne has not contested the restitution amount and 
he asserts that the sooner he is released from custody, the sooner he can begin to pay 
back the money that he owes.  Mr. Fayne wants to finish his college degree and get 
training in the field of diesel mechanics.  Once he completes these goals, he will be 
further along the road to legitimate employment and paying back the victims in this 
case.  Therefore, this factor weighs in favor of Mr. Fayne’s requested sentence of 10 
years in prison.   
 
For all of the reasons outlined here, Mr. Fayne asks the Court to impose a 
sentence of 120 months in this case.  
Respectfully submitted this 8th day of September 2021.  
s/Saraliene S. Durrett 
 
 
 
 
 
 
3  
DOJ Press Release: https://www.justice.gov/usao-ndia/pr/armstrong-man-sentenced-federal-prison-
defrauding-united-states-out-more-1-million 
 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 12 of 13

13 
 
 
 
 
CERTIFICATE OF SERVICE 
 
This is to certify that the undersigned has this date electronically filed the 
foregoing sentencing memorandum with the Clerk of the Court using the CM/ECF 
system which will automatically send email notification of such filing to the 
following attorney(s) of record:  
All Defense Counsel 
All AUSAs of record 
Respectfully submitted this 8th day of September 2021.  
s/Saraliene S. Durrett 
 
 
 
 
SARALIENE S. DURRETT 
 
 
 
 
1800 Peachtree Street 
 
 
 
Suite 300 
 
 
 
 
 
 
Atlanta, GA 30309 
 
 
 
 
(404) 433-0855 
 
 
 
 
 
ssd@defendingatl.com 
 
 
 
Case 1:20-cr-00228-MHC-JKL     Document 215     Filed 09/08/21     Page 13 of 13

File and source

File

gov.uscourts.gand.278524.215.0.pdf

Size

287,878 bytes

SHA-256

cd690be5fc05cf629b3c5d2211757acbf5fa89bd9639bfb5b700d7da7c1fb41a

Our copy

gov.uscourts.gand.278524.215.0.pdf

Original

PACER (login required)