Court filing
Government Response to PSR Objection — United States v. Derek James Acree (S.D. Fla.)
Filed December 28, 2022 in U.S. v. Acree; one of 12 filings from this case.
Record facts
| Court | U.S. District Court, Southern District of Florida |
|---|---|
| Filed | 2022-12-28 |
U.S. District Court, Southern District of Florida · No. 9:22-cr-80157-AHS · Doc. 22 · 2022-12-28 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 22-CR-80157-AHS
UNITED STATES OF AMERICA
vs.
DEREK JAMES ACREE,
Defendant.
_____________________________
GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT’S
OBJECTION TO THE PRESENTENCE INVESTIGATION REPORT
The United States, by and through the undersigned Assistant United States Attorney,
hereby files its response in opposition to Defendant’s Objection to Paragraph 45 of the Presentence
Investigation Report (“PSR”). (DE 18). The undersigned Assistant United States Attorney states
as follows:
In his objection to the PSR, Defendant Acree acknowledges that the executed plea
agreement, although not binding on the Court, provides and holds the defendant accountable for
the intended loss of $1,612,555, and as such, contemplates an increase of 16-levels from the
applicable base offense level, pursuant to Section 2B1.1(b)(1)(I) of the Sentencing Guidelines
(2021) (DE 18, 11 at ¶ 6(b)). Notwithstanding the terms of the plea agreement, the Defendant
urges this Court to consider a sentence limited to a loss calculation based on actual loss, that is,
$1,262,000. (DE 18). The United States submits that the intent of the Defendant was to benefit
himself (and others) with ALL the loan proceeds fraudulently obtained and there is no evidence
that the Defendant did not intend to utilize ALL the funds disbursed.
In reliance on the Third Circuit’s decision in United States v. Banks, 55 F 4th 246, 19-3812,
2022 WL 17333797 (Nov. 30, 2022), the Defendant requests that the Court discount the funds
Case 9:22-cr-80157-AHS Document 22 Entered on FLSD Docket 12/28/2022 Page 1 of 6
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recovered by Flagler Bank, that is, $349,955.00, as those funds were recovered by the financial
institution. In Banks, the Third Circuit assessed whether a “District Court erroneously applied the
intended-loss enhancement to [the defendant’s] sentence when the victim suffered $0 in actual
losses.” Id. at *5. In this case, the Defendant intended the disbursement of funds to the beneficiary
entity’s account, over which he had complete control. The government submits that each of the
Defendant's fraudulent act to obtain money represents an intended loss for purposes of establishing
his base offense level for sentencing for CARES Act wire fraud. The fact that the financial
institution was able to recover the funds should not influence and diminish the consequence that
should be accorded based on the Defendant’s intent and conduct. Furthermore, the Third Circuit’s
finding in Banks is in direct conflict with the case law in this Circuit and cited herein.
The Eleventh Circuit in United States v. Patterson, 595 F.3d 1324 (11th Cir. 2010), pointed
out that a defendant “pays the price for the ambition of his acts, not their thoroughness.” Id. 595
F.3d at 1327. Recently, in United States v. Moss, 34 F.4th 1176 (11th Cir. May 20, 2022), the
Eleventh Circuit addressed the calculation of intended loss under the Sentencing Guidelines. The
Court held that the district court did not clearly err by calculating the defendant’s intended loss by
using “the amount Moss had billed to Medicare, reduced by 10 percent, which was the court’s
estimate of the value of the legitimate medical services he had provided.” In distinguishing United
States v. Moran, 778 F.3d 942, 974-45 (11th Cir. 2015) —where the Court held the district court
did not clearly err when it found that the amount paid by Medicare, instead of the billed amount,
was the intended loss—because (1) the defendants in Moran submitted evidence demonstrating
that they had been aware of Medicare’s lower reimbursement rate and had projected future revenue
in accordance with that rate, which this defendant did not do; and (2) the district court wide had
discretion to include within intended loss “even loss and harm that is unlikely to occur.” This
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Court should reject the Defendant’s Objection to the PSR and impose a term of imprisonment
within the applicable guideline level.
As a general rule, the amount of loss under the Sentencing Guidelines is the greater of
actual loss or intended loss. See United States Sentencing Commission, Guidelines Manual, §
2B1.1 cmt. n. 3(A) (Nov. 2021) (“USSG Manual”); United States v. Grant, 431 F.3d 760, 762
(11th Cir. 2005). Actual loss is defined as the reasonably foreseeable pecuniary harm that resulted
from the offense and intended loss is defined as the pecuniary harm that was intended to result
from the offense. USSG Manual § 2B1.1 cmt. n. 3(A)(i)-(ii) (emphasis added).
The burden of proving the extent of the loss at sentencing falls squarely on the government
and proof of the extent of loss must be accomplished by a preponderance of the evidence. See
United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006); United States v. Dabbs, 134 F.3d
1071, 1082 (11th Cir. 1998); United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997). Once
the government “support[s] its loss calculation with reliable and specific evidence,” United States
v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001) (internal citation omitted), the burden shifts to the
defendant to rebut the government’s loss calculation.
A sentencing court must include in its calculation any losses caused by “relevant conduct.”
United States v. Foley, 508 F.3d 627, 633 (11th Cir. 2007)(citing United States v. Hamaker, 455
F.3d 1316, 1336 (11th Cir. 2006)). Relevant conduct under the USSG includes all acts and
omissions that were part of the same course of conduct or common scheme or plan as the offense
of conviction. Hamaker, 455 F.3d at 1336. The record before this Court contains Acree’s guilty
plea supported by an executed stipulated factual basis, stipulations in Acree’s plea agreement
wherein the Defendant agreed to the intended loss amount, and the undisputed facts in the
Case 9:22-cr-80157-AHS Document 22 Entered on FLSD Docket 12/28/2022 Page 3 of 6
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PSR. (DE 11, 12). Taken together, they support a finding of loss in the amount of
$1,612,555. See United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).
To reap the benefits of the CARES Act provision to small businesses impacted by the
COVID-19 pandemic, in March and April 2020, Acree, either individually or in concert with
another, and on behalf of various entities, submitted six (6) fraudulent loan applications (three
Paycheck Protection Program (“PPP”) loans, and three Economic Injury Disaster Loans
(“EIDL”)). Of the six fraudulent applications, four were approved and funded for an aggregate
amount of $1,612,555.1 With respect to the remaining two loan submissions, the Defendant sought
an additional $2.2 million in EIDL proceeds. These two fraudulent applications were denied. 2
The government notes that this matter was resolved by a negotiated plea and the
government sought not to pursue the additional intended loss amount of $2.2M. Seeking a
resolution outside of the plea agreement could be construed as adverse to such agreement.
1
Application Date
and Loan Type
Beneficiary Entity
Amount Funded
Victim
3/31/2020 -
(EIDL)
National Financial Holding Inc.
$509,900.00
SBA
4/3/2020 - (PPP)
National Financial Holding Inc.
$376,300.00
First Home Bank
4/17/2020 - (PPP)
NFH Florida, LLC
$376,400.00
Truist Bank/BB&T
4/20/2020 - (PPP)
National Financial Holding Technology, LLC
$349,955.00
Flagler Bank
2
Application Date
and Loan Type
Beneficiary Entity
Amount Sought
Intended Victim
4/14/2020 - (EIDL)
National Financial Holding Inc.
$2,000,000
(Declined)
SBA
4/9/2020 - (EIDL)
Acree & Associates
$200,000
(Declined)
SBA
Case 9:22-cr-80157-AHS Document 22 Entered on FLSD Docket 12/28/2022 Page 4 of 6
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CONCLUSION
WHEREFORE, based on the foregoing, the United States respectfully requests that the
Court deny the reject the Defendant’s objection to the PSR.
Respectfully submitted,
JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY
By:
ROBIN W. WAUGH
Assistant United States Attorney
Florida Bar No. 0537837
500 S. Australian Avenue
West Palm Beach, Florida 33401
Tel: (561) 820-8711
Robin.waugh@usdoj.gov
Case 9:22-cr-80157-AHS Document 22 Entered on FLSD Docket 12/28/2022 Page 5 of 6
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 28, 2022, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF.
By:
ROBIN W. WAUGH
ASSISTANT UNITED STATES ATORNEY
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