Government's Supplemental Sentencing Position — United States v. Andrew Marnell (Dkt. 89, C.D. Cal.)

Summary

The government's supplemental sentencing position for Andrew Marnell, filed 07/07/23 as Document 89 in United States v. Marnell, No. 2:20-CR-00319-RGK in the U.S. District Court for the Central District of California, by Assistant United States Attorney Kerry L. Quinn. The government argues the Probation Office was wrong to decline a 2-level enhancement for use of an authentication feature, citing United States v. Sardariani and noting that Marnell used forged passports during the fraud. It argues the enhancement also applies because he used another person's identity to obtain a loan in that person's name. It also argues his criminal history is, if anything, understated, citing numerous uncharged reports of other fraudulent activity. These are the government's arguments.

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E. MARTIN ESTRADA 
United States Attorney 
MACK E. JENKINS 
Assistant United States Attorney 
Chief, Criminal Division 
KERRY L. QUINN (Cal. Bar No. 302954) 
Assistant United States Attorneys 
Major Frauds Section 
1100 United States Courthouse 
312 North Spring Street 
Los Angeles, California 90012 
Telephone: (213) 894-5423  
Facsimile: (213) 894-6269 
E-mail: 
Kerry.L.Quinn@usdoj.gov 
 
Attorneys for Plaintiff 
UNITED STATES OF AMERICA 
 
UNITED STATES DISTRICT COURT 
FOR THE CENTRAL DISTRICT OF CALIFORNIA 
UNITED STATES OF AMERICA, 
Plaintiff, 
v. 
ANDREW MARNELL, 
Defendant. 
No. 2:20-CR-00319-RGK 
GOVERNMENT’S SUPPLMENTAL 
SENTENCING POSITION 
Plaintiff United States of America, by and through its counsel 
of record, the United States Attorney and Assistant United States 
Attorney Kerry L. Quinn, hereby files a supplemental sentencing 
position for defendant ANDREW MARNELL (“defendant”) on the following 
two topics: (1) the application of the +2 enhancement for use of an 
“authentication feature” under § 2B1.1(b)(11)(A)(ii) of the United 
States Sentencing Guidelines (“USSG”); and (2) defendant’s 
submissions on criminal history and likelihood of recidivism. 
I. 
The +2 Enhancement under § 2B1.1(b)(11)(A)(ii) applies 
In the Second Addendum to the Presentence Report (“PSR”) as 
filed by the United States Probation and Pretrial Services Office 
Case 2:20-cr-00319-RGK     Document 89     Filed 07/07/23     Page 1 of 3   Page ID #:484

 
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(“USPO”) (docket no. 88), the USPO declines to apply the 
+2 sentencing enhancement for use of an “authentication feature” 
because defendant used a fake identification document rather than a 
real one.  The government respectfully submits the USPO is incorrect 
on both the law and the facts.   
On the law, the government respectfully refers the Court to 
United States v. Sardariani, 754 F.3d 1118 (9th Cir. 2014), in which 
the Ninth Circuit held the “authentication feature” enhancement 
covers the use of forged notary seals, and the only question in that 
case was whether the forged notary seals were sufficiently connected 
to a governmental authority to be true “authentication features.”  
The use of fake or forged documents with real authentication features 
is exactly what USSG § 2B1.1(b)(11)(A)(ii) is designed to cover – 
this exact situation.  It is aimed at the use of real authentication 
features to make a fake document look real.  United States v. 
Sardariani, 754 F.3d at 1121-1122; see also 2B1.1 Application Note 
10(B) (“Offenses involving authentication features, identification 
documents, false identification documents, and means of 
identification, in violation of 18 U.S.C. § 1028, also are covered by 
this guideline.”) (emphasis added). 
On the facts, defendant used the identity (and personal 
identifiers) of another person, namely his husband, S.R., unlawfully 
to obtain a loan in S.R.’s name, and thus, the +2 enhancement under 
USSG § 2B1.1(b)(11) applies for the additional reason that defendant 
used a means of identification of another person unlawfully to obtain 
another means of identification, which is covered by USSG 
§ 2B1.1(b)(11)(C)(ii).  But the defendant also used forged passports 
Case 2:20-cr-00319-RGK     Document 89     Filed 07/07/23     Page 2 of 3   Page ID #:485

 
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in the course of the fraud, and thus, the § 2B1.1(b)(11) enhancement 
also applies because of the use of the “authentication feature,” as 
stated above. 
II. 
Defendant’s Criminal History Category Is, If Anything, 
Understated 
In response to the defendant’s submissions on criminal history 
and likelihood of recidivism, the government submits defendant’s 
criminal history is, if anything, understated.  In addition to the 
criminal history detailed in PSR, and the criminal conduct committed 
in this case, defendant has been the subject of numerous reports to 
law enforcement of other fraudulent activity for which he was never 
charged, including everything from credit card bust out schemes, 
check kiting, merchant fraud, identity theft, forex freeriding fraud, 
and other fraudulent attempts to obtain loans for businesses he 
claimed to operate.  The government thus respectfully disagrees with 
defense that defendant’s criminal history is overstated and the 
likelihood of recidivism is low.   
The government again submits a low-end guideline sentence of 97 
months is appropriate for this case. 
Dated: July 7, 2023 
Respectfully submitted, 
 
E. MARTIN ESTRADA 
United States Attorney 
 
MACK E. JENKINS 
Assistant United States Attorney 
Chief, Criminal Division 
 
      /s/ 
 
KERRY L. QUINN 
Assistant United States Attorney 
 
Attorneys for Plaintiff 
UNITED STATES OF AMERICA 
 
Case 2:20-cr-00319-RGK     Document 89     Filed 07/07/23     Page 3 of 3   Page ID #:486

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