Court filing

Objection to Presentence Investigation Report — United States v. Derek James Acree (S.D. Fla.)

Summary

Defendant Derek James Acree's objection to the presentence investigation report in United States of America v. Derek James Acree, Case No. 22-CR-80157-Singhal, in the U.S. District Court for the Southern District of Florida, entered December 13, 2022 as Document 18 in Case 9:22-cr-80157-AHS. It asks the court to reduce the 16-level loss increase in paragraph 45 of the report to a 14-level increase, arguing under United States v. Banks that loss should be calculated on actual loss, not intended loss. The objection acknowledges that the 16-level increase was agreed to in the plea agreement but cites the November 30, 2022 change in the law. A footnote states that loan funds of $349,955 disbursed by Flagler Bank were returned on July 29, 2020 and that the actual loss amount is $1,262,600. It is signed /s/ Christopher Haddad.

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Filed December 13, 2022 in U.S. v. Acree; one of 25 filings from this case.

Record facts

Court	U.S. District Court, Southern District of Florida
Filed	2022-12-13

Cite this document

“Objection to Presentence Investigation Report — United States v. Derek James Acree (S.D. Fla.).” U.S. District Court, Southern District of Florida, No. 9:22-cr-80157-AHS, Doc. 18, filed 2022-12-13. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-acree/2022-12-13-psr-objection/, SHA-256 67d60bddd8dfc8751afb87704a98ae19793fc508e04b953d8fbc3139aec34024.

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Full text

UNITED STATES DISTRICT COURTO
SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 22-CR-80157-Singhal

UNITED STATES OF AMERICA,

Plaintiff,

vs.

DEREK JAMES ACREE,

Defendant.
________________________________/

OBJECTION TO PRESENTENCE INVESTIGATION REPORT

COMES NOW, the Defendant, DEREK JAMES ACREE, by and through
his undersigned counsel, and hereby respectfully submits his objection to the
Presentence Investigation Report (“PSR”). As grounds, Mr. Acree respectfully
submits that the loss amount contained in paragraph 45 of the PSR and 16-level
increase, should be reduced by 2 levels to a 14-level increase.1 In support, Mr. Acree
contends that the loss amount in the PSR is calculated based on the intended loss
under the Larceny, Embezzlement, and Theft guideline, and that recent caselaw
supports the position that the loss is more properly calculated based on actual loss,
not intended law, thereby justifying the 2-level increase from level-16 to level-14
under §2B1.1(b)(1) .

1 §2B1.1(b)(1)(H) provides for a 14-level increase where the loss amount is more than $550,000.
Case 9:22-cr-80157-AHS Document 18 Entered on FLSD Docket 12/13/2022 Page 1 of 3

2
In United States v Banks, Nos. 19-3812 & 20-2235 (3rd Cir. 2022), the Court
held that loss enhancements in the Sentencing Guidelines commentary
“impermissibly expands the word ‘loss’, to include both intended and actual loss.”.
Although not binding on this Court, it is noteworthy that the Eleventh Circuit
recently heard oral argument in an en banc case raising a similar argument regarding
the career offender guideline’s definition of a controlled substance offense and the
commentary’s expansion of that definition to include inchoate offenses. See United
States v. Dupree, No. 19-13776 (2/18/2022). Thus, the holding in Banks, supra may
potentially be binding in this Circuit.
Mr. Acree readily acknowledges that the 16-level increase was agreed to in
the plea agreement. However, given the recent change in the law, that came out on
November 30, 2022 which was after the plea agreement was entered, Mr. Acree
respectfully urges this Honorable Court to consider the reasoning articulated by the
Third Circuit to justify reducing the loss amount to reflect the actual loss, and not
the intended loss, and the impact the 2-level reduction has on the Total Offense Level
of 22 as contained in paragraph 54 of the PSI.2

WHEREFORE, Defendant, DEREK JAMES ACREE, respectfully
submits his Objection to the 16-level increase contained in paragraph 45 of the PSR

2 Paragraph 41 of the PSR specifically states that the loan funds disbursed by Flagler Bank in the amount of
$349,955 were returned to the bank on July 29, 2020. Thus, the actual loss amount is $1,262,600.
Case 9:22-cr-80157-AHS Document 18 Entered on FLSD Docket 12/13/2022 Page 2 of 3

3
and respectfully requests that a 14-level increase is appropriate reflecting the actual
loss in this matter.

I HEREBY CERTIFY that on December 13, 2022, I electronically filed the
foregoing document with the Clerk of Court using CM/ECF. I also certify that the
foregoing document is being served this day on all counsel of record.

Respectfully submitted,

/s/ Christopher Haddad
CHRISTOPHER HADDAD, ESQ.
Under Florida Bar No. 879592
Attorney for Derek James Acree
319 Clematis Street, Ste. 812
West Palm Beach, FL 33405
Telephone: 561-832-1162
chris@chrishaddad.com
Case 9:22-cr-80157-AHS Document 18 Entered on FLSD Docket 12/13/2022 Page 3 of 3

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