Plea Agreement - United States v. Derek James Acree

Record facts

U.S. District Court, Southern District of Florida · No. 9:22-cr-80157-AHS · Doc. 11 · 2022-10-11 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
SOUTHERN DISTW CT OF FLORIDA
z.z - .vé? lh--l - J l//
CASE NO.
UNITED STATES OF AM ERICA
VS.
DEREK JAM ES ACREE,
Defendant.
. 
/
PLEA AGREEM ENT
The United States Attorney's Office for the Southern District of Florida (this tdoffice''l and
Derek James Acree (hereinaRer referred to as the tsDefendanf') ènter into the following agreement:
The defendant agrees to plead guilty to the one-cotmt Information, which charges
conspiracy to commit wire fraud, in violation of 18 U.S.C. j 1343, al1 in violation of 18 U.S.C. j
1349.
2. The defendant is aware that the sentence will be.imposed by the Court after consideling
the advisory Federal Sentencing Guidelinesand Policy Statements (hereinafter tlsentencing
Guidelines'). The defendant aclmowledges and understands that the Court will compute an
advisory sentence under the Sentencing Guidelines and that the applicable guidelines will be
determined by the Cotu't relying in part on the results of a pre-sentence investigation by the Court's
probation office, which investigation will commence after the guilty plea has been entered. The
defendant is also aware that, tmder ceMain circtlmstances, the Court may depart 9om the advisory
sentencing guideline range that it has comptlted, and may raise or lower that advisoly sentence
tlnder the Sentencing Guidelines. The defendant is further aware and tmderstands that the Court
is required to consider the advisory guideline range determilled under the Sentencing Guidelines,
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 1 of 9

but is not bound to impoje a sentence within that advisory range; the Cotu't is permitted to tailor
the ultimate sentence in light of other statutory concem s, and such ,sentence m ay be either more
severe or less severe than the Sentencitlg Guidelines' advisory range. Knùwing these facts, the
defendant understands and acknowledges that the Court has the authority to impose any sentence
within and up to the statutory m aximum authorized by law for the offenses identitied in paragraph
1 and that the defendant may not withdraw the plea solely as a result of the sentence imposed.
The defendant also Jmderstands and aclcnowledges that the Court may impose a
statutory maximum term of imprisonment of up to twenty (20) years, followed by a tenn of
supervised release of three (3) years. In addition to a term of imprisonment and supervised
release, the Court may impose a fine of tlp to two hundred and t'if'T thousand ($250,000) dollars,
or twice the gross loss or gross gain, which could be as much as $2,525,200; and must order
restitm ion. The defendant agrees that he will m ake restittttion in the amount of one million hvo
hundred sixtptwo thousand and six hundred dollars ($1,262,600.00). The court may also order
forfeihlre.
The defendant further tmderstands and aclm owledges that, in addition to any sentence
imposed under paragraph 3 of this apeement, a special assessment of $100.00 will be imposed on
the dèfendant. The defendant agrees that any special assessment imposed shallbe paid at the tim e
of sentencing. If a defendant is financially tlnable to pay the special assessment, the defendant
agrees to present evidence to this Office and the Court at the time of sentencing as to the reasons
for the defendant's failure to pay.
This Office reserves the right to inform the Court and the probation office of all facts
pertinent to the sentencing process, including a1l relevant information concerning the offenses
committed, whether charged or not, as well as concem ing the defendant and the defendant's
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 2 of 9

background. Subject only to the express tenus of any agreed-upon sentencing recommendations
i d in this agreement, this Office further reserves the right to make any recomm endation as
conta ne
to the quality and quantity of punishment.
This Office and the defendant agree that, although not binding on the probation
office or the Court, they will jointly recommend that the Court make the following findings and
hconclujions as to the sentence to be imposed:
Base Offense Level: That the base offense level is 7, pursuant to Section 2B1.1
(a)(1);
b.
upward adjustment as the loss was more than $1,500,000 but not greater than $3,500,000, pursuant
to Section 28 1.1(b)(1)(1),' and
Specific offense Characte' ristic; That the defendant should receive a 16-1eve1
Specific offense Characteristic: That the defendant should receiye a 2-1eve1 upwazd
adjustment if the' offense involved a misrepresentation or other fraudulent action during the course
of a banknlptcy proceeding, pursuant to Section 28 1.1(b)(9)(B).
Tiis Oftke agrees that it will recommend at sentencing that the Court reduce by
hvo levels the sentencing guideline level applicable to the defendant's offense, purstlant to Section
3E1.1(a) of the Sentencing Guidelines, based upon the defendant's recognition and affirmative
and tim ely acceptance of personal responsibility. lf at the tim e of sentencing the defendant's
offense level is determined to be 16 or grepter, this Office will file a motion requesting an
additional one level decrease ptlrsuant to Section 3E1.1(b) of the Sentencing Guidelines, stating
that the defendant has assisted authorities in the investigation or prosecution of the defendant's
own miscoriduct by timely notifying authorities of the defendant's intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for trial and permitting the
3
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 3 of 9

government and the Court to allocate their resources efficiently. This Office, however, will not
be required to make this motion if the defendant: (1) fails or refuses to make a 111, accurate and
complete disclosure to the probation office of the circtlmstances sunounding the relevant offense
conduct; (2) is found to have misrepresented facts to the government piior to entering into this plea
agreement; or (3) commits any misconduct after entering into this plea agreement, including but
not limited to committing a state or federal offense, violating any term of release, or maldng false
statem ents or misrepresentations to any governmental entity or ofticial.
9. This Office and the defendant agree that, although not binding on the probation oftice
or the Comt they will jointly recommend that the Court impos: a sentence within the advisory
sentencing guideline range produced by application of the Sentencing Guidelines. Although not
binding on the probation office or the Coult this Office and the defendant further agree that, except
as otherwise expressly contemplated in this Plea Agreement, they willjointly recommend that the
Court neither depart tlpward, depart downward nor seek a variance upward or downward from the
applicable Sentencing Guidelines.
The defendant is aware that the sentence has not yet been determined by the Court.
The defendant also is aware that any estimate of the probable sentencing range or sentence that the
defendant may receive, whether that estimate comes from the defendant's atlorney, this Office, or
the probation office, is a prediction, not a prom ise, and is not binding on this Office, the probation
office or the Court. The defendant tmderstands further that any recomm endation that this Oftk e
makes to the Court as to sentencing, whether purstlant to this agreement or othelwise, is notbinding
on the Coul't and the Coul't may disregard the recommendation in its entirety. The defendant
understands and acknowledges, as previotlsly aclcnowledged ill paragraph 2 above, that the
defendant may not withdraw his plea based upon the Court's decision not to accept a sentencing
4
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 4 of 9

recommendation made by the defendant, this Office, or a recommendation made jointly by the
defendant and this Office.
11. 
The defendant agrees, i.n an individual and any other capacity, to forfeit to the
United States, voltlntarily and im mediately, any right, title, and interest to any property, real or
personal, which constitutes or is del-ived from proceeds traceable to the comm ission of the offense,
in violation of 18 U.S.C. j 1349, ptlrsuant to 18 U.S.C. j 981(a)(1)(C), as incorporated by 28
U.S.C. # 2461(c), and the provisions of 21 U.S.C. j 853. In addition? the defendant agrees to
forfeiture of substitm e propeo  pursuant to 21 U.S.C. j 853(p). The property subject to forlkimre
includej, but is not limited to:
a forfeiture money judgment in the sum of approximately $869,682.83 in
U.S. ctlrrency, which sllm represents the value of any property that
constitutes or is derived from proceeds traceable to the défepdant's
commission of the offensets).
12. 
The defendant flm her agrees that forfeiture is independent of any assessment, fine,
cost, restitution, or penalty that m ay be imposed by the Court. The defendant knowingly and
voluntarily agrees to waive al1 constitutional, lejal, and equitable defenses to the forfeiture,
including excessive tines under the Eighth Amendm ent to the United States Constitution. ln
addition, the defendant agrees to waive: any applicable time limits for administrative or judicial
forfeiture proceedings, the requirements of Fed. Rs. Crim. P. 32.2 and 43(a), and any appeal of the
forfeiture.
13. 
The defendant also agrees to fully and truthfully disclose the existence, nature and
location of al1 assets in which the defendant has or had any direct or indirect fmancial itlterest or
control, and any assets involved in the offensets) of conviction. The defendant agrees to take a11
steps requested by the United States for the recovery and forfeiture of a1l assets identified by the
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 5 of 9

United States as subject to forfeiture. This includes, but is not limited to, the timely delivery uptm '
request ùf al1 necessary and appropdate docum entation to deliver good and marketable title,
consenting to all orders of forfeiture, and not contesting or impeding in any way with any criminal,
civil or administrative forfeiture proceeding concem ing the forfeiture.
14. 
In furtherance of the satisfaction of a forfeiture money judgment entered by the
Court in this case, the defendant agrees to the following:
submit a financial statement to this Oftice upon request, within 14 calendar
days from the request;
maintain any asset valued in excess of $10,000, and not sell, hide, waste,
. 
'
encumber, destroy, or othenvise devalue such asset without jrior approval
of the United States;
provide infoimatiôn about any transfer of an asset valued in excess of
$10,000 since the commencement of the offense conduct in this case to date;
d. 
cooperate fully in the investigation and Jhe identification of assets,
including liqtlidating assets, meeiing with reprej'entatives of the United
States, and providing any documentation reqtlested; and
notify, within 30 days, the Clerk of the Court for the Southem  District of
Flolida and this Office of: (i) any change of name, residence, or mailing
address, and (ii) any material change in economic circumstances.
The defendant further tmderstands that providing false oy incomplete infonnation about
assets, concealing assets, maldng m aterially false statements or representations, or m akipg or using .
false writings or documents pertaining to assets, taking any action that would impede the forfeiture
6
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 6 of 9

of assets, or failinj to cooperate fully in the investigation and identification of assets may be used
as a basis for: (i) separate prosectltion, incltlding, tmder 18 U.S.C. 5 100 1,' or (ii) recommendation
of a denial of a reduction for acceptance of responsibility pursuant to the United States Sentencing
Guidelines j 3E1. 1.
15. The defendant is aware that Title 28, United States Code, Section 1291 and Title 18,
United States Code, Section 3742 afford the defendant the right to appeal the sentence imposed in
this case. Aclcnowledging this, in exchange for the undertakings made by the United States in
this plea agreement, the defendant hereby waives al1 rights conferred by Sections 1291 and 3742
to appeal any sentence imposed, including any restimtion order, or to appeal the manner in which
the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the
result of an tlpward departure and/or an upwar' d valiance from the advisoly guideline range that
the Court establishes at sentencing. The defendant further tmderstands that .nothi
.ng in this
agreement shall affect the governm ent's light and/or duty to appeal as set forth in Title 18, United
States Code, Section 3742(1$ and Title 28, United States Code, Section 1291. However, if the
United States appeals the defendqnt's sentence pursuant to Sections 3742(b) and 1291, the
defendant shall be released from the above waiver of his right to appeal his sentence.
The defendant further hereby waives a11 rights confen'ed by Title 
.28, United States Code,
j
Section 1291 to assert any claim that (1) the statutets) to which the defen ant is pleading guilty
is/are unconstitmional; and/or (2) the aflmitted conduct does not fall within the scope of the
statutets) of conviction.
By signing this agreement, the defendant acltnowledges that the defendant has discussed
the appeal Waiver set forth in this agreem ent with the defendant's atlorney. The defendant further
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 7 of 9

agrees, together with this Office, to request that the Court enter a specific finding that the
defendént-s waiver ot-his right to appeal the sen'tence imposed in this case and his right to appeal
his conviction ill the marmer described above was knowing énd voluntary.
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 8 of 9

This is the entire agreement and understanding between this Offke and the
defendant. There are no other agreements, promises, representations, or understandings.
JUAN ANTONIO GONZALEZ
Date :
k o l
. t( (aax
D ate: 10 10 >ûl
UNITED S TES ATTORNEY
R 
. AUGH
A SIST T LRWTED STA 
TTORNEY
r
J, 
,-
-J sy, 
, ;
DAVID ROTH
Date: 
0 tz
ATTORNEY FOR DEFEND NT
/
By: 
z 2
DE 
AM ES
D FENDANT
Case 9:22-cr-80157-AHS   Document 11   Entered on FLSD Docket 10/11/2022   Page 9 of 9

File and source

File

gov.uscourts.flsd.620969.11.0.pdf

Size

393,164 bytes

SHA-256

e0b4a378f6b6cf553c72a95ddf3a51baf12cdb59a73163883ca68b5d580bfb08

Our copy

gov.uscourts.flsd.620969.11.0.pdf

Original

PACER (login required)