Defendant Sentencing Memorandum — United States v. Derek James Acree (S.D. Fla.)

Record facts

U.S. District Court, Southern District of Florida · No. 9:22-cr-80157-AHS · Doc. 25 · 2022-12-31 · 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, 
 
 
Plaintiff, 
 
 
 
 
  
 
vs. 
 
DEREK JAMES ACREE, 
 
 
 Defendant. 
________________________________/ 
 
SENTENCING MEMORANDUM 
 
COMES NOW the Defendant, DEREK JAMES ACREE, through his 
undersigned attorney, and respectfully submits his sentencing memorandum. 
INTRODUCTION 
 
The defendant pled guilty to a one-count Indictment, charging Conspiracy to 
commit wire fraud, in violation of 18 U.S.C. § 1349.     
A stipulated factual basis was submitted in support of his guilty plea.  In the 
stipulation, Mr. Acree acknowledged his wrongdoing, accepting full responsibility 
for his actions, He agreed to make restitution in the amount of $1,262,600. 
The government and defense agreed to jointly recommend that the Court 
neither depart upward nor downward, nor seek a variance from the applicable 
Guidelines.   According to the PSI calculations, based upon a total offense level of 
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22 and a criminal history category of I, the guidelines imprisonment range is 41-51 
months.  [See PSI paragraph 94).  
Objection to 16-level enhancement 
Mr. Acree subsequently filed a singular objection to the Guidelines 
calculation challenging the loss calculation. [D.E. 18] The government filed a 
response contending that the loss calculation was properly computed and urging this 
Honorable Court to overrule the objection. [D.E. 22]  
Mr. Acree, acknowledges, that in the plea agreement the parties agreed, inter 
alia, that the defendant should receive a 16-level upward adjustment based on a loss 
of more than $1,500,000 but not greater than $3,500,000 pursuant to Section 
2B1.1(b)(1).  Prior to filing his objection, undersigned counsel notified the 
government that he readily acknowledged the agreed upon 16-level adjustment in 
the plea agreement, but respectfully, was filing the objection because the caselaw 
supporting the objection was issued after the plea agreement, and the defense desired 
to perfect the record on the issue, in the event that the 11th Circuit ultimately ruled 
in the same manner as the Third Circuit.1    
Mr. Acree in no way seeks to undermine the agreed upon terms of his plea 
agreement, to which he is grateful to the government for agreeing, but files the loss 
enhancement objection based on the evolving nature of the law pertaining to “actual 
 
1 See United States v. Banks, 55 F.4th 246, 19-3812, 2002 WL 17333797 (Nov. 30, 2022).   
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vs. intended loss” and as stated, to perfect the matter in the event the law changes 
favorably in this Circuit.   
Mr. Acree’s overall character and life’s experiences 
The instant sentencing memorandum is meant to provide this Honorable Court 
with an understanding of Mr. Acree’s upbringing and life’s experiences, as well as 
to characterize the nature of the facts and circumstances which bring him before the 
Court for sentencing.   
To be clear, Mr. Acree knowingly and intentionally violated the laws against 
wire fraud.  This is indisputable.  Further, nobody held a gun to his head or otherwise 
forced or coerced him to do what he did.  Moreover, as a practicing attorney, he 
certainly knew better.  He has disgraced himself, and embarrassed himself and his 
family.  His 11-year old son has been affected by his actions, and Mr. Acree will 
miss out on some very important time, watching his son grow and develop and also 
miss out on co-parenting him during some very formative years.   
Notwithstanding his obvious culpability and criminal responsibility, a review 
of the PSI report shows that Mr. Acree grew up under arduous and difficult 
circumstances that warrant consideration by this Honorable Court.  Further, the 
expert reports prepared by Dr. Neville Marks and Mr. Stanley McKnight support 
that Mr. Acree has learned from his mistakes and is on a far better path and moving 
forward in a positive direction.  [D.E. 21].  These positive developments since his 
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arrest support that, the likelihood of his engaging in future criminal activity is 
minimal.  
Mr. Acree’s business partner, identified in the PSI as CCI possessed a far 
superior skill set, and was the guiding force behind the business ventures.  Mr. Acree 
met CCI approximately 10 years ago when they were both employed with a joint 
venture between 2 multi-national corporations. CCI demonstrated a strong 
knowledge of the industry and was instrumental in the day-to-day business 
operations.  Mr. Acree placed him on a “pedestal of sorts”, working diligently under 
CCI’s direction.  Mr. Acree absolutely should have stood up to CCI, when prompted 
to engage in wrongdoing, and failed to do so.  For this failure to act, he is deeply 
regretful and feels a profound sense of remorse.  Once again, this in no excuse for 
Mr. Acree’s actions, however, it can fairly be said that CCI had a negative influence 
on Mr. Acree, and this coupled with the financial stress of the business ventures and 
the overall impact of operating a business during the height of Covid factored into 
Mr. Acree’s failed judgment and criminal conduct.   
Mr. Acree grew up in a very difficult and dysfunctional environment.  His 
parents ultimately divorced; after years of alcohol abuse in a very hostile home.  Mr. 
Acree witnessed his father engage in violent outbursts, due to struggles with Mr. 
Acree’s mom.  Mr. Acree would often run and hide during these outbursts.   
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Mr. Acree was sexually molested by his grandfather on one occasion; and his 
mother often fondled his penis from the age of 7 to 12.  The horror of this prolonged 
and continual abuse cannot be overemphasized, and justifies imposition of a 
sentence at the low-end of the guidelines.   See  U.S. v. Mapp, 2007 WL 485513 
(E.D. Mich Feb. 9, 2007) (Sentencing Court decreased sentence based in part on 
defendant’s upbringing where his parents never married and frequently physically 
abused each other. He hid in closets or outside for hours and his  grandmother took 
custody of him at age 5 and raised him.)  
In Santosky v. Kramer, 455 U.S. 745, 789 (1982) (Rehnquist, J., joined by 
Burger, C.J., White, and O'Connor, J., dissenting), the Supreme Court stated that 
"[i]t requires no citation of authority to assert that children who are abused in their 
youth generally face extraordinary problems developing into responsible, productive 
citizens".  Those profound words uttered by the Court four decades ago, ring as true 
as ever.   
Title 18, United States Code, Section 3553 (a) governs the Court’s analysis as 
to an appropriate sentence.   
Title 18, United States Code, Section 3553 provides in pertinent part: 
a) Factors To Be Considered in Imposing a Sentence.— The court 
shall impose a sentence sufficient, but not greater than necessary, to 
comply with the purposes set forth in paragraph (2) of this subsection. 
The court, in determining the particular sentence to be imposed, shall 
consider—  
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(1) the nature and circumstances of the offense and the history and 
characteristics of the defendant;  
(2) the need for the sentence imposed—  
(A) to reflect the seriousness of the offense, to promote respect for the 
law, and to provide just punishment for the offense;  
(B) to afford adequate deterrence to criminal conduct;  
(C) to protect the public from further crimes of the defendant; and  
(D) to provide the defendant with needed educational or vocational 
training, medical care, or other correctional treatment in the most 
effective manner; 
 
A balancing of the 3553 (c) factors justifies a low-end guideline sentence of 
41-months.  Mr. Acree will be receiving a prison sentence for the first time.  See 
generally U.S. v. Qualls, 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005) (generally a 
lesser prison term is sufficient to deter one who has not been subject to prior lengthy 
incarceration).    
Mr. Acree’ individual characteristics, his difficult upbringing, and the need 
for mental health and substance abuse counseling support that a sentence of 41-
months is sufficient but not greater than necessary to comply with the sentencing 
factors in 3553 (c).  Additionally, Mr. Acree respectfully requests that the Court 
recommend that he enroll in and participate in the RDAP program, to address his 
alcohol problem as supported by the expert reports of Dr. Neville Marks and Mr. 
Stanley McKnight. [DE 21]      
 
CONCLUSION  
 
For the reasons stated above, Mr. Acree respectfully requests that this 
Honorable Court enter a sentence at the low-end of the Guidelines, of 41-months 
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imprisonment followed by supervised release and that a recommendation be made 
by this Honorable Court that he be placed in the RDAP program.     
 
  
 
 
 
 
Respectfully submitted, 
 
 
 
 
 
                            
/S/CHRISTOPHER HADDAD, ESQ. 
Florida Bar No. 879592 
319 Clematis Street, Suite 812 
West Palm Beach, FL 33401 
Telephone: 561-832-1162 
 
 
 
CERTIFICATE OF SERVICE 
 
 
I hereby certify that on December 31, 2022, I electronically filed the 
foregoing document with the Clerk of Court using CM/ECF. 
 
 
 
 
 
 
 
 
 
 
/S/_________________________ 
 
 
 
 
 
 
 
Christopher A. Haddad, Esq. 
 
 
 
 
 
 
 
 
Case 9:22-cr-80157-AHS   Document 25   Entered on FLSD Docket 12/31/2022   Page 7 of 7

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