SENTENCING MEMORANDUM by Heath Gauthier — PPP Attempt Conspiracy Legal Filings (Dkt. 42)

Summary

A sentencing memorandum filed June 17, 2024 as Document 42 by defendant Heath Gauthier, through Assistant Federal Defender Dorothy E. Graham, in United States v. Heath Gauthier, No. 1:23-cr-00015-JL-TSM, in the U.S. District Court for the District of New Hampshire. It asks the court to impose the 145-month sentence agreed in a plea agreement under Rules 11(c)(1)(A) and (C), after guilty pleas to Counts 2, 4, 7, and 10 charging wire fraud and attempted wire fraud, aggravated identity theft and possession of child pornography. The memorandum states that the parties agree restitution of at least $196,507 is owed to the SBA and sets out a guideline range of 144 to 145 months. It objects to special conditions #1 and #3, requiring substance abuse treatment and drug testing, and moves to strike PSR ¶¶ 47 & 48.

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        Case 1:23-cr-00015-JL-TSM Document 42 Filed 06/17/24 Page 1 of 4




                            UNITED STATES DISTRICT COURT
                             DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA                         )
                                                 )
              v.                                 )                  No. 1:23-cr-15-JL
                                                 )
HEATH GAUTHIER                                   )


                                     SENTENCING MEMO

       Heath Gauthier, through counsel, respectfully requests the Court to sentence him to the

terms outlined in the plea agreement pursuant to Rules 11(c)(1)(A) and (C) of the Federal Rules

of Criminal Procedure. The statutes for these offenses require a mandatory sentence of 10 years

for possession of child pornography plus an additional 2 years for Aggravated Identity Fraud.

The agreed upon sentence of 145 months is within the guideline sentencing range and is an

appropriate sentence in this case. Gauthier respectfully objects to PSR ¶¶ 47 & 48 as well as

special conditions #1 (substance abuse treatment) and #3 (testing for controlled substances).

                                   The Plea and The Offense.

       Mr. Gauthier plead guilty to Counts 2, 4, 7, and 10 of the Superseding Indictment that

charged him with wire fraud and attempted wire fraud, in violation of 18 U.S.C. § 1343 & 1349,

aggravated identity theft, in violation of 18 U.S.C. § 1028A, and possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(2).

                     The Plea Agreement and Guideline Sentencing Range

       The plea agreement was reached pursuant to Fed. R. Crim. P. 11(c)(1)(A) and (C). The

parties agree that a sentence of 145 months’ imprisonment is an appropriate sentence in this case.

The parties also agree that restitution of at least $196,507 is due and owing to the SBA. Based


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upon a total offense level of 29 and a criminal history category of II, the guideline imprisonment

range is 97 months to 121 months. However, the statutorily authorized minimum sentences are

greater than the minimum of the applicable guideline range; therefore, the guideline range is 120

months to 121 months. In addition, a term of 24 months on Count 7 must be ordered

consecutively, thereby establishing a guideline range of 144 to 145 months.

                                    18 U.S.C. § 3553(a) factors

        Gauthier is a 48-year-old man with one prior conviction and a criminal history score of

 three. He graduated and obtained his diploma from Spaulding High School in Rochester in

 1995. As a child he suffered abuse which impacted his life greatly. He has a long history of

 mental health issues, including diagnoses for OCD, depression, agoraphobia, and personality

 disorder. Gauthier takes various medications for hypercholesterolemia, hypertension, and

 Type 2 diabetes. He was diagnosed with pulmonic valve stenosis.

        Gauthier accepts responsibility and has admitted to his wrongdoing. The paramount

 directive in 18 U.S.C. §3553(a) is that the Court must impose a sentence that is “sufficient, but

 not greater than necessary,” to achieve the purposes of the sentencing statute. 18 U.S.C.

 §3553(a). Gauthier respectfully requests the Court to adopt the parties’ recommendation.

                                      Objections to Conditions 1 & 3

       Pursuant to 18 U.S.C. § 3583(d), the Court may only impose a special condition of

supervised release if the Court determines that the condition (1) “will further at least one of the

three legitimate statutory purposes of deterrence, protection of the public, and

rehabilitation,” United States v. Medina, 779 F.3d 55, 60 (1st Cir. 2015), (2) “involves no

greater deprivation of liberty than is reasonably necessary,” § 3583(d)(2), and (3) “is consistent

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        Case 1:23-cr-00015-JL-TSM Document 42 Filed 06/17/24 Page 3 of 4




with any pertinent policy statements issued by the Sentencing Commission,” § 3583(d)(3). The

conditions must have “adequate evidentiary support in the record” based on defendant’s specific

characteristics and background. Medina, 779 F.3d at 61 (citations and quotations omitted); see

also United States v. Perazza–Mercado, 553 F.3d 65, 69 (1st Cir. 2009).

       Gauthier objects to special condition #1 and #3, requiring substance abuse treatment and

testing for controlled drugs. This condition is not reasonably related to the nature and

circumstances of the offense. Nothing in the PSR suggests that Gauthier has a history of drug use

or that controlled substances has contributed to his criminal conduct. Of note, Gauthier does not

object to the prohibition for possession or use of alcohol; specifically, because Gauthier has no

desire to consume it. The requirement of substance abuse treatment and drug testing is overly

restrictive as applied to the specific facts and circumstances of this case and to Gauthier’s

personal characteristics.

                                      Objection to ¶47 & ¶48

       Gauthier moves to strike paragraph 47. While this information may show that the

CARES Act loan proceeds were used for purposes other than for lawful business practices,

Gauthier pleaded guilty and admitted he obtained the loans through fraudulent means.

Therefore, this information provides minimal relevance. This information only serves to imply

that Gauthier exhibited predatory or grooming behavior. The minor met Mr. Gauthier on Grindr

and would have had to misrepresent his age as 18 to set up the account. The minor reported that

he was 17 years old at the time of his interaction with Gauthier, but there is no evidence that

Gauthier knew this male was a minor.

       Gauthier moves to strike this paragraph as there is insufficient evidence to support the


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claim, and Gauthier denies he “introduced a minor male family member [ ] to hard core sexual

material and concepts and engaged in sexually explicit conversations with him and others.” As

to the minor male family member, he was interviewed twice. These interviews were conducted

by trained interviewers at the Child Advocacy Center. During the first CAC interview, the

minor made no actionable disclosures. During the second CAC interview, he again made no

actionable disclosures. In other words, the minor provided no evidence that any sexual assaults

occurred, and his interviews failed to establish a base level of probable cause to issue a warrant

or charges.

                                                      Respectfully submitted,
                                                      HEATH GAUTHIER
                                                      By His Attorney,


Date:   June 17, 2024                                 /s/ Dorothy E. Graham
                                                      Dorothy E. Graham
                                                      N.H. Bar No. 11292
                                                      Assistant Federal Defender
                                                      Federal Defender Office
                                                      22 Bridge Street – 3rd Floor
                                                      Concord, NH 03301
                                                      Tel. (603) 226-7360
                                                      E-mail: dorothy_graham@fd.org



                                 CERTIFICATE OF SERVICE

      I, Dorothy E. Graham, hereby certify that on June 17, 2024 a true copy of the above
document was sent via ECF to AUSA Kasey Weiland.


                                                      /s/ Dorothy E. Graham




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