Government Sentencing Memorandum — United States v. Gianni Stewart

Record facts

U.S. District Court, E.D.N.Y. · No. 1:21-cr-00411-WFK · Doc. 232 · 2024-02-28 · Docket on CourtListener

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U.S. Department of Justice 
 
 
United States Attorney 
Eastern District of New York 
 
EDP:TBM 
271 Cadman Plaza East 
F. #2020R00998 
Brooklyn, New York 11201 
 
 
February 28, 2024 
 
By ECF 
 
The Honorable William F. Kuntz 
United States District Judge 
Eastern District of New York 
225 Cadman Plaza East 
Brooklyn, New York 11201 
 
Re: 
United States v. Gianni Stewart 
                                    Criminal Docket No. 21-411 (WFK)  
 
Dear Judge Kuntz: 
 
The government respectfully submits this letter in advance of the defendant 
Gianni Stewart’s sentencing, scheduled for March 6, 2024, at 11:30 a.m.  For the reasons stated 
below, the government respectfully submits that a sentence within the U.S. Sentencing 
Guidelines (“U.S.S.G.” or “Guidelines”) range of 41 to 51 months’ imprisonment is sufficient, 
but not greater than necessary, here. 
 
I. 
Background 
  
 
Between approximately June 2020 and April 2021, the defendant together with 
numerous co-conspirators defrauded the New York State Department of Labor (“NYSDOL”) out 
of more than $1,750,000 in unemployment benefits, which benefits they unlawfully claimed in 
the names of approximately 250 victims.  Presentence Investigation Report dated July 17, 2023 
(“PSR”) ¶ 19. 
 
In March 2020, following the onset of the COVID-19 pandemic and the 
consequent financial hardship facing American citizens, the President of the United States signed 
into law various acts that relaxed the requirements for claiming unemployment benefits and 
made significant additional funding available for such benefits.1  See id. ¶¶ 7-14.   To apply for 
unemployment benefits with NYSDOL, applicants were required to furnish their name, date of 
 
1  
For example, in August 2020, the President of the United States authorized the 
Federal Emergency Management Agency to use disaster relief funds pursuant to Section 408 of 
the Stafford Act to provide supplemental unemployment benefits.  PSR ¶ 13. 
 
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birth and Social Security number, all of which was verified by NYSDOL before claims were 
paid.  See id. ¶ 18. 
 
The defendant and his co-conspirators used cryptocurrency to purchase the 
personally identifiable information (“PII”) of victims through end-to-end encrypted applications 
like Telegram and then used the PII to make fraudulent claims for unemployment benefits from 
NYSDOL.  See id. ¶¶ 20-21, 33.  The fraudulent claims were then deposited into bank accounts 
they controlled or provided on reloadable KeyBank debit cards, which were mailed to addresses 
they controlled.  Id. ¶ 22. 
 
The defendant and co-defendants Bryan Abraham, Carlos Vazquez, Angel 
Cabrera and Seth Golding had conversations on Telegram discussing the fraudulent scheme, 
including where they could obtain victim PII, which they referred to as “pros” or “profiles,” the 
logistics of withdrawing fraudulent funds from KeyBank debit cards, and the luxury items and 
trips they were purchasing with their ill-gotten gains.2  Id. ¶ 23, 25-26.  Once in possession of the 
KeyBank debit cards, the defendant and his co-defendants traveled together to banks to make 
cash withdrawals.  Id. ¶ 23.   
 
The defendant and his co-conspirators collaborated closely.  For example, on 
September 7, 2020, the defendant, Golding and another co-conspirator withdrew funds from 
multiple KeyBank debit cards at a bank in Brooklyn.  Id. ¶ 23(e).  When one was finished at the 
ATM, he would exit, only to be replaced moments later by the next.  Id.  In total, they withdrew 
almost $9,000.  Id.  Similarly, the defendant and his co-conspirators shared KeyBank debit cards.  
Id. ¶ 24.  For instance, a KeyBank debit card in a victim’s name was mailed to Stewart’s home 
address, only to be later recovered from Abraham’s person during an August 28, 2020 arrest.  Id. 
 
In total, the defendant personally submitted and caused to be submitted fraudulent 
claims in the names of at least 23 victims, from which he and his co-conspirators received 
approximately $178,800.  Id. ¶ 31.  In the same time period, the defendant posted photographs to 
social media, depicting himself wearing designer clothing, alongside sports cars, and fanning out 
large sums of cash.  See id. ¶ 25.  For example, the below photographs, posted to social media 
accounts belonging to the defendant or co-conspirators, first depict the defendant alone; next 
depict the defendant in the upper right corner, wearing the same outfit, with co-defendant 
Golding in the bottom left corner, and two co-conspirators; and finally depict the defendant 
standing next to a car with the caption, “First V,” which is slang for Infiniti.  
 
 
 
2  
The defendant and his co-conspirators coordinated on other fraudulent schemes 
over Telegram.   For example, Stewart sent Cabrera PII for third-party victims in Georgia, 
California and North Carolina, and Cabrera in turn shared a link to make unemployment claims 
in Ohio.  Id. ¶ 38.  Likewise, in May 2021, in a group chat involving the defendant, Abraham, 
Vazquez, Cabrera and Golding, Golding asked how long “Womply”—a Paycheck Protection 
Program or “PPP” provider—took to approve and where he could obtain bank statements, 
referring to third party bank statements.  Vazquez advised that Womply took one week to 
approve and that Vazquez had forged the requisite bank statements.  Id. ¶ 37.   
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On May 18, 2021, the defendant was arrested on a complaint charging him with 
conspiracy to commit access device fraud in violation of 18 U.S.C. § 1029(b)(2).  See ECF No. 
1.  He was arraigned and released on bond.  See ECF No. 23.  On August 5, 2021, he was 
indicted for conspiracy to commit access device fraud in violation of 18 U.S.C. § 1092(b)(2), 
access device fraud in violation of 18 U.S.C. § 1029(a)(5), and aggravated identity theft in 
violation of 18 U.S.C. § 1028A.  See ECF No. 70.  He was arraigned and continued on bond.   
 
The defendant has repeatedly violated the conditions of his pretrial release.  He 
traveled out of state on numerous occasions and tested positive for marijuana.  See PSR ¶ 5.  
Additionally, on July 4, 2024, the defendant and three unrelated co-conspirators were arrested in 
a car in which two firearms were recovered.  Id. ¶ 67.  For that conduct, the defendant faces state 
charges in Kings County Criminal Court, including for Criminal Possession of a Weapon in the 
Second Degree.  Id.  In connection with that case, the defendant posted bond.  Id. 
 
After a violation hearing before the Court on August 2, 2024, the defendant was 
remanded to the Metropolitan Detention Center in Brooklyn.  See ECF No. 193.  On October 12, 
2023, he was again released on bond and remains on pretrial release.  See ECF No. 205.  
 
II. 
Guidelines Calculation 
 
The defendant’s Guidelines calculations is as follows:   
 
Base Offense Level (§ 2B1.1(a)(2)) 
6 
Plus: 
Actual loss of more than $1,500,000  
(§§ 2B1.1(b)(1)(I)) 
+16 
 
Plus: 
Involved 10 or more victims  
(§ 2B1.1(b)(2)(A)(i)) 
                         +2 
 
Plus: 
Unauthorized use or transfer of identification  
(§ 2B1.1(b)(11))      
              +2 
 
 
 
Plus: 
Involved conduct described in 18 U.S.C. § 1040  
(§ 2B1.1(b)(12))      
              +2 
 
Less:      Global resolution 
(§ 5K2.0) 
-1 
 
Less: 
Acceptance of responsibility  
(§§ 3E1.1(a), 3E1.1(b)) 
    -3 
 
Less:      Zero-point offender 
(§ 4C1.1(a))                                                                     -2 
 
Total: 
22 
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PSR ¶¶ 50-62, 105.  The defendant has zero criminal history points and accordingly falls within 
Criminal History Category I.  Id. ¶¶ 63-65.    
 
 
 
The government’s calculation of the Guidelines differs from that in the PSR by 
the inclusion of the zero-point offender reduction.  Since the filing of the PSR, the Guidelines 
have been amended to provide for a two-level reduction in offense level where the defendant has 
no criminal history category points and otherwise satisfies various requirements, including that 
he “did not personally cause substantial financial hardship.”  U.S.S.G. § 4C1.1(a)(6).  
“Substantial financial hardship” includes insolvency; filing for bankruptcy; suffering loss of a 
retirement, education or savings fund; making substantial changes to employment, such as 
postponing retirement; making substantial changes to living arrangements, such as relocating to a 
less expensive home; and suffering harm to the ability to obtain credit.  See U.S.S.G. 
§ 4C1.1(b)(3); U.S.S.G. § 2B1.1, cmt., n.4(F).  Because the defendant has zero criminal history 
points, did not cause “substantial financial hardship” as defined by the Guidelines, and satisfies 
the remaining requirements under the amendment, he is eligible for the two-level reduction.   
 
 
 
Accordingly, the defendant’s total adjusted offense level is 22, which carries a 
Guidelines sentence of 41 to 51 months’, assuming the defendant is in Criminal History 
Category I. 
 
III. 
Sentencing Law 
 
The standards governing sentencing are well-established.  In United States v. 
Booker, 543 U.S. 220 (2005), the Supreme Court rendered the Guidelines advisory, and 
emphasized that a sentencing court must consider both the Guidelines and the 18 U.S.C.  
§ 3553(a) factors when making a sentencing decision.  Id. at 264; see also United States v. 
Kimbrough, 552 U.S. 85 (2007). 
 
Although the Guidelines are no longer mandatory, they continue to play a critical 
role in trying to achieve the “basic aim” that Congress sought to meet in enacting the Sentencing 
Reform Act, namely, “ensuring similar sentences for those who have committed similar crimes 
in similar ways.”  Booker, 543 U.S. at 252; see also United States v. Crosby, 397 F.3d 103, 113 
(2d Cir. 2005) (“[I]t is important to bear in mind that Booker/Fanfan and section 3553(a) do 
more than render the Guidelines a body of casual advice, to be consulted or overlooked at the 
whim of a sentencing judge.”).  “[A] district court should begin all sentencing proceedings by 
correctly calculating the applicable Guidelines range,” which “should be the starting point and 
the initial benchmark.”  Gall v. United States, 552 U.S. 38, 49 (2007).  The Guidelines range is 
thus “the lodestar” that “anchor[s]” the district court’s discretion.  Molina-Martinez v. United 
States, 136 S. Ct. 1338, 1345–46 (2016) (internal quotation marks omitted).   
 
After making the initial Guidelines calculation, a sentencing judge must consider 
the factors outlined in 18 U.S.C. § 3553(a), and “impose a sentence sufficient, but not greater 
than necessary, to comply with the purposes” of sentencing: “a) the need to reflect the 
seriousness of the offense, to promote respect for the law, and to provide just punishment for that 
offense; b) the need to afford adequate deterrence to criminal conduct; c) the need to protect the 
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public from further crimes by the defendant; and d) the need for  rehabilitation.”  United States v. 
Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (citing 18 U.S.C. § 3553(a)(2)).  Section 3553(a) 
further directs the Court, “in determining the particular sentence to impose,” to consider: (1) the 
nature and circumstances of the offense and the history and characteristics of the defendant;  
(2) the statutory purposes noted above; (3) the kinds of sentences available; (4) the kinds of 
sentence and the sentencing range as set forth in the Guidelines; (5) the Guidelines policy 
statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide 
restitution to any victims of the offense.  See 18 U.S.C. § 3553(a). 
 
In light of Booker, the Second Circuit has instructed that district courts should 
engage in a three-step sentencing procedure.  See Crosby, 397 F.3d at 103.  First, the Court must 
determine the applicable Guidelines range, and in so doing, “the sentencing judge will be entitled 
to find all of the facts that the Guidelines make relevant to the determination of a Guidelines 
sentence and all of the facts relevant to the determination of a non-Guidelines sentence.”  Id. at 
112; see also United States v. Corsey, 723 F.3d 366, 375 (2d Cir. 2013) (“Even in cases where 
courts depart or impose a non-Guidelines sentence, the Guidelines range sets an important 
benchmark against which to measure an appropriate sentence.”).  Second, the Court must 
consider whether a departure from that Guidelines range is appropriate.  See Crosby, 397 F.3d at 
112.  Third, the Court must consider the Guidelines range, “along with all of the factors listed in 
section 3553(a),” and determine the sentence to impose.  Id. at 113. 
 
IV. 
Analysis 
 
The government respectfully submits that a sentence of 41 to 51 months’ 
imprisonment is warranted by the Section 3553(a) factors and will achieve the goals of 
sentencing. 
 
 
 
The defendant’s criminal conduct was unquestionably serious.  The defendant and 
his co-conspirators took advantage of a global pandemic—a time of tremendous suffering—to 
profit through an elaborate criminal scheme.  The defendant and his co-conspirators used 
cryptocurrency to unlawfully purchase the PII of real victims on encrypted applications like 
Telegram, and then used that information to fraudulently apply for unemployment benefits from 
NYSDOL.  In total, the defendant and his co-conspirators submitted fraudulent claims in the 
names of approximately 250 real victims, for which they received in excess of $1,750,000.  The 
defendant closely coordinated with his co-defendants, sharing tips on where to obtain victim PII, 
traveling to ATM machines together to make cash withdrawals, and discussing other fraudulent 
schemes in which they could engage.  In total, the defendant personally submitted or caused to 
be submitted claims in the names of at least 23 victims, for which in excess of $178,000 in funds 
were paid.  The defendant flagrantly flaunted his ill-gotten gains on social media, fanning out 
large wads of cash while wearing designer clothing and posing by sports cars.  Given the 
seriousness of the conduct, a meaningful term of incarceration is warranted to promote respect 
for the law and to provide just punishment. 
 
 
 
Additionally, the defendant’s conduct while on supervised release demonstrates 
that the requested sentence is required for specific deterrence.  The defendant repeatedly flouted 
his conditions of release, traveling without authorization and using marijuana.  Most troublingly, 
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the defendant was arrested in a car with three others, in which two loaded firearms were 
recovered.   
 
 
 
The requested sentence is also necessary for general deterrence.  The defendant 
and his co-conspirators capitalized on programs designed to help people suffering through the 
throes of a crippling global pandemic.  The defendant and his co-conspirators stole almost $2 
million that had been earmarked for people in need—like those who lost their jobs due to the 
nationwide shuttering of businesses, or who had unique health concerns that prevented them 
from working in public.  As the photographs attached above demonstrate, plainly the defendant 
was not one of those people, using the money he stole to instead indulge in a lavish lifestyle.  
Because of the defendant’s actions, it will be harder to enact programs like this in the future, 
thereby contributing to the suffering of those reliant on these programs.   
 
 
 
Financial crimes of the type the defendant committed are also very difficult to 
detect and investigate.  Here, for example, the defendant and his co-conspirators used encrypted 
messaging applications and cryptocurrency, making their activity much harder to track.  
Accordingly, the requested sentence is necessary for general deterrence, to ensure similarly 
situated individuals do not repeat the defendant’s crimes. 
 
 
 
 
 
While the government is mindful of the defendant’s youthful age at the time he 
committed the instant offense, as discussed above, a balance of the Section 3553(a) factors 
nonetheless weighs in favor of a Guidelines sentence.  
 
V. 
Conclusion 
 
 
 
 
 
 
For the foregoing reasons, the government respectfully submits that a sentence of 
41 to 51 months’ imprisonment is sufficient, but not greater than necessary, to accomplish the 
goals of sentencing.   
Respectfully submitted, 
 
BREON PEACE 
United States Attorney 
 
 
By: 
               /s/                      
   
Tara McGrath 
Assistant U.S. Attorney 
(718) 254-6454 
 
cc:    Clerk of the Court (WFK) (by ECF) 
         David Colgan, Esq. (by ECF) 
 
         Roberta Houlton, U.S. Probation (by email) 
 
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