Defendant's Sentencing Memorandum — Gardy Alexandre

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U.S. District Court, District of Massachusetts · No. 1:24-cr-10007-MJJ · Doc. 67 · 2024-05-21 · Docket on CourtListener

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A defendant's sentencing memorandum filed May 21, 2024 on behalf of Gardy Alexandre in United States v. Gardy Alexandre, No. 1:24-cr-10007-MJJ, in the U.S. District Court for the District of Massachusetts, as Doc. 67. The memorandum agrees with Probation that the Total Offense Level is 18 and the advisory range is 30-37 months, and disputes the government's objection that the level should be 19. It states that the plea agreement has the government recommending no more than 27 months, cites a PSR loss figure of $1.455 million, and lists PPP fraud sentences imposed in the District. It asks for a sentence of a year and a day, supervised release with treatment conditions, restitution, and no forfeiture or fine. The filing is signed by defense counsel James L. Sultan and references Exhibit 1 and Exhibit 2.

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CRIMINAL #24-CR-10007-MJJ
_________________________
UNITED STATES
v.
GARDY ALEXANDRE
_________________________
DEFENDANT’S SENTENCING MEMORANDUM 
INTRODUCTION
          Defendant Gardy Alexandre [“Alexandre”] comes before the Court for sentencing in this PPP
loan fraud conspiracy case.  Although he will be the first of  three co-defendants to be sentenced,
Alexandre is the least culpable  according to the government’s statement of offense conduct  set forth
in the Presentence Report. He is a 52 year-old college graduate who works as a tax preparer. 
Alexandre  suffers from mental illness, including depression and anxiety, and has long struggled with
alcoholism. While he has lived in the United States as a lawful resident alien for nearly forty years,
he is a citizen of Haiti who faces likely deportation to that war-torn country upon the completion of
his sentence. Alexandre understands that his participation in defrauding the government of pandemic
loan assistance funds was a serious crime which merits some period of incarceration.  For the reasons
set forth herein, he  respectfully requests that the Court exercise its discretion to impose a downward 
variance from the Advisory Guidelines Range and sentence him to a year and a day in the custody
of the Attorney General, to be followed by three years of supervised release, along with restitution
in an amount to be determined by the Court. Such a sentence is sufficient, but not greater than
necessary, to fulfill the purposes set forth in 18 U.S.C. §3553(a)(2).
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I.
THE DEFENDANT’S BACKGROUND.1
Gardy Alexandre was born in Haiti and raised by his grandmother there.  He was subjected
to physical and psychological abuse by a relative as a child.  In 1986, at age 14,  he was sent to New
York City to live with his mother. He graduated from high school, attended Ohio Wesleyan
University, and transferred to Stony Brook University, where he starred on the Men’s Soccer Team
and graduated with a B.A. in 1995.2
Alexandre enlisted in the U.S. Army in 1998 and served until 2000, when he received a
general discharge under honorable conditions.  He has spent most of the last 20 years living in
Florida, where he is currently self-employed as a tax preparer.  He previously worked as an
admissions adviser at Palm Beach State College. He has never been married and has four children,
included two under the age of 14.   He is fluent in three languages–English, French, and Creole. . 
His criminal history consists almost entirely of multiple OUI charges over the past two decades.
Alexandre has struggled with alcoholism for his entire adult life. He has been receiving
treatment for alcoholism, a gambling disorder, depression, and anxiety from the Veterans
Administration since 2019.  His mental health appears to have worsened since his mother died in
2022.   Facing both impending imprisonment and potentially lifelong separation from his children
and family, Alexandre’s struggle with anxiety and depression has worsened as he approaches his
sentencing date. He continues to receive mental health treatment and is on several prescription
medications
1   This section is based primarily on information set forth in the Presentence Report. 
2   An excerpt from the Men’s Soccer Team record book, documenting that Alexandre still
holds the all-time record for goals and points scored in a season, is appended hereto as Exhibit 1.  
He went by his middle name, “Greg”, in college. 
2
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Although Alexandre has lived  in the United States as a lawful resident alien for nearly four
decades and his entire immediate family lives here as well, he never applied  for or obtained U.S.
citizenship.  As a result, he faces the likely prospect of deportation to his native country of Haiti
upon completion of his sentence.  See PSR, ¶80.  On information and belief, our government recently
resumed deportations to that violent and chaotic place. 
II.  
OFFENSE CONDUCT.
Alexandre’s offense conduct, along with that of his two co-defendants, Adiana Pierre and
Wallace Ford, is accurately set forth at ¶¶12-28 of the Presentence Report.  As that report indicates,
Alexandre first applied  unsuccessfully for a PPP loan for his business, Palm Beach Community
House.  PSR, ¶19.  Thereafter, Pierre recruited him and submitted his financial information to co-
defendant Ford, who submitted a new PPP application for PBCH using fraudulent tax documents
prepared by Ford.  That loan was funded.  PSR, ¶20.  No false documents were prepared by
Alexandre, and Alexandre had no contact with Ford.. 
At Pierre’s behest, Alexandre also recruited other PPP borrowers in return for a fee (a
percentage of the funded loan paid by the borrower).   Alexandre submitted  financial information
of those additional borrowers to Pierre, who passed it on to Ford, who submitted PPP applications
based on fraudulent documents he created.  PSR, ¶¶21-23. Once again, Alexandre did not prepare
or submit any false documents on behalf of any of these borrowers, though he did receive a
commission when the loans were funded.  
According to the PSR, the loss amount attributed to Alexandre is $1.455 million.  PSR, ¶28
n.1. That  figure, while significant,  is approximately 20 percent of the loss amount of over $7
million attributed to his two co-defendants, Pierre and Ford.  Id.  Alexandre also  received  far less
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in payments from borrowers than his two co-defendants.  PSR, ¶28.  That, of course, does not negate
or minimize his crime.  It is, however, clearly relevant  for purposes of proportionality.  
III.  
ADVISORY GUIDELINE RANGE.
Alexandre agrees with Probation that his Total Offense Level under the U.S.S.G. is 18, and
his criminal history score is 2, placing him in CHC II.  Accordingly, the advisory guideline
imprisonment range is 30-37 months.
The government has filed an objection to Probation’s guidelines calculation, claiming that
Alexandre’s Total Offense Level is 19, rather than 18.  The government’s difficult-to-follow
argument relies on the interplay between USSG §2B1.1 (fraud guideline) and §2S1.1 (money
laundering guideline). The government claims that the base offense level should be seven, not six. 
The government is mistaken. Money laundering proscribed under 18 U.S.C. §1957 is  not 
referenced  in §2B1.1, and §2B1.1(a)(2) states that the base offense level for offenses not listed in
that guideline is six.  Several sessions of this Court have sided with Probation’s position, rather than
the government’s,  on this knotty issue.  See, e.g., United States v. Njei, No. 21-CR-10196-FDS ;
United States v. Iwuanyanwu, No. 19-CR-10119-DJC ; and cases cited in the PSR Addendum, p. 39. 
 In any event, to the extent that there is any ambiguity in applying the guidelines, the rule of lenity
requires that the ambiguity be resolved in the defendant’s favor.  United States v. Pinkham, 896 F.3d
133, 138 (1st Cir. 2018). 
IV.
OTHER RELEVANT FACTORS.
A.  
Alexandre’s CHC Overstates the Seriousness of his Criminal Record.
Alexandre’s criminal history is set forth at ¶¶52-72.  That record reflects his long history of
arrests for driving under the influence of alcohol and related offenses.  While driving under the
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influence is a criminal offense, in Mr. Alexandre’s case those offenses stemmed from  his
longstanding struggle with alcoholism.  That, of course, is no excuse, but it explains why he has a
criminal record at all.  In sum, CHC II substantially over-represents the seriousness of his criminal
history, so a downward departure on that basis is warranted under U.S.S.G., §4A1.3(b)(1).  
B.
Alexandre’s Immigration Status.
The likelihood that Alexandre will be deported to Haiti after living in the United States as
a lawful permanent resident for the past four decades is not, strictly speaking, a sentencing factor
under §3553(a).  Yet such a life-altering and devastating  collateral consequence seems relevant to
fashioning an appropriate term of imprisonment, as well as to the need (or lack thereof) for specific
deterrence in this case.
C.
Alexandre’s Depression. 
          Depression, a mood disorder with neurobiological underpinnings, causes "disrupted activity
in the orbitfrontal areas of [] brains (the same areas used to make emotionally charged decisions) and
dorsolateral areas (used for non-emotional decision making)." Sahakian, B., and LaBuzetta, J. Bad
Moves : How Decision Making Goes Wrong, and the Ethics of Smart Drugs, p. 132, Oxford
U n i v e r s i t y  
P r e s s  
U S A - O S O , 2 0 1 3 . P r o Q u e s t E b o o k
Central.http://ebookcentral.proguest.com/lib/socal/detail.action?docID=l 141993.    These
neurobiological abnormalities result in impaired decision-making, increasing the likelihood that a
person suffering from depression will make riskier and more impulsive decisions and suffer
significant impairments in problem-solving, strategizing, and assessing the long-term consequences
of decisions.  Id. at 132-133.  Alexandre’s depression is not an excuse for his offense conduct, but
it may help to explain why he went down that path.
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D.
Plea Agreement.
The plea agreement in this case provides that the government will recommend a sentence of
incarceration of no more than 27 months, representing  a downward variance from the advisory
guideline sentencing range.  While the Court, of course, is not bound by the recommendation of
either party, the fact that the government is recommending a sentence below the applicable guideline
range strongly suggests that Alexandre’s offense is outside the heartland of a million-dollar fraud
offense. 
E. 
JSIN Information and PPP Fraud Sentences in this District.
According to the Judiciary Sentencing Information (JSIN) set forth in the Presentence Report
at ¶130,  defendants sentenced  under §2S1.1 with a Final Offense Level of 18 and a Criminal
History Category of II during the last five years received an average sentence of 19 months
imprisonment.  
A number of defendants convicted of comparable offenses involving fraudulent PPP loans
have been sentenced in this District to date.  They include: United States v. Bernadin, 
No. 22-CR-10110-IT (15 months incarceration for fraudulent loan of $419,000); United States v.
Buie,  No. 22-CR-0042-DPW (18 months incarceration for fraudulent loans totaling $285,000);
United States v. Vo, No. 22-CR-10042-WDY (24 months incarceration for fraudulent loans over $15
million);  United States v. McIntyre, No. 21-CR-10162-DJC (24 months incarceration for fraudulent
loans totaling $679,000); and United States v, Santana, No. 22-CR-10221-FDS (29 months
incarceration for fraudulent loan of $2.5 million).   
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V.
DISCUSSION.
As the Court well knows, the core principle embodied in the sentencing statute, 18 U.S.C.
§3553, is that the sentence imposed should be “sufficient, but not greater than necessary” to fulfill
the purposes of sentencing set forth at §3553 (a)(2), including punishment, general deterrence,
specific deterrence, and rehabilitation.  In the absence of a binding plea agreement, the application
of those criteria in a particular case is largely left to the Court’s discretion. 
The COVID pandemic was unique in modern American history.  It affected everyone, some
more than others. Those  like Alexandre, who suffer from mental illness and substance abuse, faced 
particularly acute challenges when they were cut off from treatment.  The PPP loan program, while
highly beneficial to small businesses at a time of economic paralysis, also created an opportunity to
commit fraud, and many succumbed to that temptation.  That is not an excuse; it’s a fact.  And those
who engaged in such fraud and got caught, like Alexandre,  must face appropriate legal
consequences for their offenses. 
Gardy Alexandre didn’t set out to commit PPP fraud.  But when his co-defendant, Adiana
Pierre, invited him to go down that road, he willingly accepted.  He didn’t falsify any  financial
documents, but he knew that the loan he received was not legitimate.  He didn’t falsify financial
information or submit loan applications for anyone else, but he passed their financial information
on to Pierre and received a cut of the proceeds when their fraudulent loans were funded.
The parties agree that Alexandre needs to be sentenced to prison, but for how long? Apart
from the problems caused by his protracted alcoholism, he has lived an offense-free life, worked
hard,  and contributed  to his community.  He faces likely deportation to a violent and chaotic
country he doesn’t know when he completes his prison sentence.  He has accepted responsibility for
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his misconduct and faces an uncertain and perhaps terrifying future.  Under the circumstances, it is
hard to fathom why it is either necessary or appropriate to consign him to federal prison for more
than two years, as urged by the government. 
VI.  
RECOMMENDATIONS.
The defendant respectfully  recommends that he be sentenced to a term of a year and a day
in the custody of the Attorney General.  Such a sentence is sufficient, but no more than necessary,
to fulfill the statutory sentencing objectives set forth in §3553. 
He further requests that the Court recommend that he receive alcohol abuse  and mental
health treatment while in custody. He requests that the Court recommend that he be classified to
serve his sentence at an institution in or near Florida, where his children reside. The defendant
further recommends that he be placed on supervised release for a term of 24 months with special
conditions of treatment for alcoholism and mental health and abstinence from alcohol and gambling.
He further requests that restitution be ordered, as required by statute, and that the Court impose
neither forfeiture nor a fine based on his  inability to pay.3 
                                                                                    Respectfully submitted,
GARDY ALEXANDRE
By his attorney,
           /s/ James L. Sultan                     .
James L. Sultan, BBO #488400
jsultan@rankin-sultan.com
Rankin & Sultan
1666 Massachusetts Avenue, Suite P-16
Lexington, MA 02420
(617) 720-0011
3  
A copy of Alexandre’s net worth statement is appended hereto as Exhibit 2. 
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CERTIFICATE OF SERVICE
I hereby certify that this document(s) filed through the ECF System will be sent electronically
to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies
will be sent to those indicated as non-registered participants on May 21, 2024.
_____________/s/ James L. Sultan______________ 
                    James L. Sultan 
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