Defendant’s Sentencing Memorandum — United States v. McBreairty (Dkt. 9, D.N.H.)

Summary

Andre McBreairty's lawyers asked the U.S. District Court for the District of New Hampshire to impose the sentence agreed in the plea deal: two years probation with six months on home confinement, a fine of $5,000.00 and full restitution of $55,316.00. The memorandum says the government requests the same sentence. McBreairty pleaded guilty on January 3, 2022 to a one-count Information charging a false statement under 18 U.S.C. § 1001(a)(1). According to the filing, McBreairty admitted to federal agents on July 19, 2021 that he lied when applying for loans made available under the CARES Act. Restitution is $33,316.00 to Key Bank and $22,000.00 to the Small Business Administration.

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Case 1:21-cr-00191-JL Document 9 Filed 04/04/22 Page 1 of 5




                             UNITED STATES DISTRICT COURT
                                        FOR THE
                              DISTRICT OF NEW HAMPSHIRE

___________________________________
                                    )
United States of America            )
                                    )
         v.                         )                Cr. No.: 21-CR-00191-JL
                                    )
Andre McBreairty,                   )
                  Defendant.        )
____________________________________)

                     DEFENDANT'S SENTENCING MEMORANDUM

       Defendant Andre McBreairty files this Sentencing Memorandum in support of the agreed-

upon guideline sentence of two years probation with six months on home confinement, a fine of

$5,000.00, and full restitution. The Government requests the same sentence.

       Mr. McBreairty's prompt acceptance of responsibility, lack of prior criminal history,

payment of restitution in full, and the fact that he will have a felony-level conviction support the

agreed-upon sentence. The Parties believe the proposed sentence, considering the nature and

circumstances of the offense and Mr. McBrearity's history and personal characteristics, achieves

the goals of sentencing as set forth in 18 U.S.C. § 3553(a).

I.     Procedural History

       On December 5, 2021, Mr. McBreairty was charged in a one-count Information with False

Statement in violation of 18 U.S.C. § 1001(a)(1). The Government and Defendant reached a Plea

Agreement pursuant to Fed. R. Crim. P. 11(c)(1)(B) and (C), which included the proposed agreed-

upon sentence of two years probation with six months on home confinement, a fine of $5,000.00,

and full restitution in the amount of $55,316.00. See Plea Agreement at ¶ 6; Pre-Sentence Report

("PSR") at ¶ 4.

            Case 1:21-cr-00191-JL Document 9 Filed 04/04/22 Page 2 of 5




       On January 3, 2022, Mr. McBreairty appeared for his Initial Appearance, filed a Waiver of

Indictment, and accepted responsibility and pled guilty to the single-count Information of False

Statement in violation of 18 U.S.C. § 1001(a)(1). He was released on personal recognizance with

certain conditions pending sentencing.

II.    A Felony-Level Conviction, Two Years Probation with Six Months Home
       Confinement, a Fine, and Full Restitution Accomplishes the Goals of Sentencing

       A. Supreme Court's Guidance.

       In determining an appropriate sentence, the Court should first calculate the appropriate

guideline under the United States Sentencing Guidelines ("the Guidelines"), including any

appropriate departures. United States v. Smith, 531 F.3d 109, 111 (1st Cir. 2008). After calculating

the Guideline range, the Court should consider the factors set forth in 18 U.S.C. § 3553(a) to

determine an appropriate sentence, explain its reasoning, and select a sentence that is "sufficient,

but not greater than necessary, to achieve the goals of sentencing." Id. (internal quotations

omitted). The sentencing factors in 18 U.S.C. § 3553(a)(2) include:

            the need for the sentence imposed --

            (A)      to reflect the seriousness of the offense, to promote respect for the law,
                     and to provide 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 education or vocational training,
                     medical care, or other correctional treatment in the most effective
                     manner.

       B.         Andre McBreairty is a first-time offender who has accepted full
                  responsibility for his conduct.

       Andrew McBreairty is 45 years old, married, and a father of three children, ages 2,

15 and 17. See PSR at ¶¶ 66 and 68. If the Court accepts and imposes the agreed-upon

sentence, Mr. McBreairty would be a convicted felon for the rest of his life, serve six




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             Case 1:21-cr-00191-JL Document 9 Filed 04/04/22 Page 3 of 5




months on home confinement, have two years of probation, and pay a fine and full

restitution. This sentence would provide adequate punishment and deterrence, and is

sufficient, but not greater than necessary to serve the purposes of sentencing. See 18 U.S.C.

§ 3553(a).

       Mr. McBreairty cooperated fully with the federal investigation, including admitting

to his conduct when approached by agents from the Treasury Inspector General for Tax

Administration and Social Security Administration Office of Inspector General on July 19,

2021. See PSR at ¶ 27. Mr. McBreairty stated that he had "fallen on hard times" due, in

part, to the COVID-19 pandemic and provided federal agents with an affidavit affirming

that he lied when he applied for federal loans made available by Congress through the

Coronavirus Aid, Relief, and Economic Security (CARES) Act. See PSR at ¶ ¶ 7, 30 and

31.

       Prior to and after this conduct, Mr. McBreairty has been gainfully employed

throughout his life with the exception of a five-year period during which he received social

security disability benefits due to back issues and an inability to work. See PSR at ¶¶ 75

and 80. More specifically, Mr. McBreairty worked 19 years for C&S Wholesaler Grocers

in Keene, New Hampshire, as manager of operations, and is presently employed as a

salesmen at Klick Lewis Dealership, an independent auto dealer in Pennsylvania. See PSR

at ¶ 75. He has always supported his three children financially, including having full

custody of his two older children for a period of time and now shares joint custody of his

two older children with his ex-wife. See PSR at ¶ 68. Mr. McBrearity continues to provide

financial support to his wife, his two-year-old daughter, and his two older children. See

PSR at ¶¶ 66 and 68.




                                                 3

            Case 1:21-cr-00191-JL Document 9 Filed 04/04/22 Page 4 of 5




       Due to financial pressures, Mr. McBreairty falsely filled out loan applications made

available under the CARES Act. Mr. McBreairty accepts full responsibility for his illegal

conduct, will pay for it for the rest of his life, and is extremely embarrassed and remorseful

for what he did. Mr. McBreairty had to disclose his conduct to his elderly parents, and to

his wife and children, which was painful and difficult. See PSR at ¶¶ 58, 59, 66 and 83.

       Mr. McBreairty will repay the loans in full before or soon after the sentencing

hearing. See Plea Agreement at ¶ 6; PSR at ¶¶ at 83 and 98. More specifically, Mr.

McBreairty will provide restitution of $33,316.00 to Key Bank and $22,000.00 to the Small

Business Administration, totaling $55,316.00. Due to financial pressures that he and his

family presently have, Mr. McBreairty's wife agreed to take out a $50,000.00 loan to help

pay the restitution. Mr. McBreairty plans to continue to work to pay the loan back and to

support his wife and their two-year old daughter, as well as to provide support to his two

teenage children.

           C. The Proposed Sentence Accomplishes the Goals of Sentencing.

       The Parties believe the recommended sentence of two years probation with six months on

home confinement, a fine of $5,000.00, and full restitution accomplishes the goals of sentencing.

The proposed sentence sends a strong message that if anyone falsely obtains loans, they will be

prosecuted. Mr. McBreairty’s punishment of a felony-level conviction is significant for someone

who has never had any conviction other than a motor vehicle matter. Mr. McBreairty recognizes

and admits he made a huge mistake, and wishes to accept responsibility by pleading guilty and to

make this right by making full restitution concerning the loans he falsely acquired. For these

reasons, the Government and Defense both believe that the proposed sentence accomplishes the

goals of sentencing.




                                                  4

            Case 1:21-cr-00191-JL Document 9 Filed 04/04/22 Page 5 of 5




III.   Sentencing Request

       Mr. McBreairty respectfully requests that the Court impose the agreed-upon guideline

sentence of two years probation with six months on home confinement, a fine of $5,000.00, and

full restitution in the amount of $55,316.00. This sentence is sufficient, but not greater than

necessary to serve the purposes of sentencing set forth in 18 U.S.C. § 3553(a).

                                                      Respectfully submitted,

                                                      Andre McBreairty
                                                      By His Attorneys:
                                                      SHAHEEN & GORDON, P.A.

Dated: April 4, 2022                   `              /s/ Brian M. Quirk
                                                      Brian M. Quirk
                                                      NH Bar #12526
                                                      107 Storrs Street/P.O. Box 2703
                                                      Concord, NH 03302-2703
                                                      (603) 225-7262
                                                      bquirk@shaheengordon.com




                                 CERTIFICATE OF SERVICE

        I hereby certify that on April 4, 2022, this document filed through the ECF system will be
sent electronically to the registered participants as identified on the Notice of Electronic Filing.

                                              /s/ Brian M. Quirk
                                              Brian M. Quirk




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