Sentencing Memorandum — United States v. Bully (S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 9:23-cr-80141-DMM · Doc. 26 · 2023-12-04 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT  
SOUTHERN DISTRICT OF FLORIDA 
WEST PALM BEACH DIVISION 
 
Case No. 23-cr-80141-DMM 
 
UNITED STATES OF AMERICA,  
 
     Plaintiff     
 
v.  
 
 
 
EMMAUEL BULLY, JR., 
 
    Defendant.   
 
____________________________________/ 
 EMMANUEL BULLY, JR,’S MEMORANDUM IN SUPPORT 
 OF DOWNWARD DEPARTURE AND SETENCING MEMORANDUM  
 
 
COMES NOW THE DEFENDANT, EMMANUEL BULLY, JR, through the 
undersigned counsel, who files the following Sentencing Memorandum setting forth additional 
factors that seek the Court’s consideration when determining what type and length of sentence that 
is sufficient, but not greater than necessary, to comply with the statutory directive set forth in 18 
US.C. §3553(a) and states: 
I.  BACKGROUND 
1. 
Emmauel Bully, Jr, “Bully,” was born on April 09, 1979, in Port-au-Prince, Haiti. 
2. 
Bully moved (lawfully) to Brooklyn, New York, United States from Haiti when he was 
four years old and has been a United States Citizen since March 15, 2006.  
3. 
He immigrated to the United States with his parents, Vernelia (“Vernelia”) and Emmanuel 
Bully Sr. (“Bully Sr.”), and his younger brother, Mike Davis Bully (“Mike”).  
4. 
Bully Sr. is 79 years old and was a longtime blackjack dealer at the Hard Rock Hotel & 
Casino until his retirement. Now, battling the final stages of dementia, he resides in Boynton Beach 
with only Vernelia to care for him; she herself is 68 and still employed by Publix Supermarket 
after more than 20 years of dutiful service.   
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5. 
Meanwhile, Mike is 39, resides in Philadelphia, Pennsylvania, and is employed as a senior 
director for a medical insurance company. He is married with three children.  
6. 
Bully is in regular contact and communication with Mike, who visits Florida frequently for 
work and to visit his family.  
7. 
Bully and Mike are often relied upon by Vernelia to assist in the difficult task of caring for 
Bully Sr.  
8. 
Bully had worked for himself as a tax consultant and preparer since 2008 prior to the 
pandemic and the conduct leading up to this action. 
9. 
However, as the final PSI report confirms, Bully had been suffering from alcohol abuse 
and experimenting with other drugs, for well over a decade, in response to the anxiety and 
depression he was suffering from, for at least 10 years, at the time of the conduct he is taking 
responsibility for in this matter.  
10. 
Indeed, as the final PSI makes clear (paragraphs 59 through 66), Bully experienced 
significant anxiety and depression, which subsequently led to him self-medicating with drugs and 
alcohol.  
11. 
As will become readily apparent in the paragraphs below, it is respectfully submitted that 
a downward departure is warranted in Bully’s case, because this was truly an isolated event that 
was precipitated by the COVID-19 pandemic which exacerbated Bully’s preexisting, anxiety, 
depression, and substance abuse.  
 
 
                                 [SPACE INTENTIONALLY LEFT BLANK] 
 
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II.  GUIDELINES 
12. 
Mr. Bully’s conduct, for which he has accepted responsibility, is an isolated incident that 
was only precipitated by the COVID-19 pandemic, coupled with his preexisting mental health 
issues, that Bully had already been coping with by using alcohol and drugs.   
13. 
It is respectfully submitted that a substantial reduction is warranted, and a sentence of non-
incarceration would even be justified in these circumstances, due to Bully’s timely plea, 
acceptance of guilt and responsibility, and his need and desire to seek help for his anxiety, 
depression, and alcohol abuse.    
14. 
According to the National Health Institute (“NIH”), “Both SARS-CoV-2 and the COVID-
19 pandemic have significantly affected the mental health of adults and children. In a 2021 study, 
nearly half of Americans surveyed reported recent symptoms of an anxiety or depressive disorder, 
and 10% of respondents felt their mental health needs were not being met. Rates of anxiety, 
depression, and substance use disorder have increased since the beginning of the pandemic.”1 
15. 
Moreover, the NIH also contends that there are disproportionate effects on mental health 
in the United States resulting from the pandemic; stating that even though “the COVID-19 
pandemic can affect the mental health of anyone, some people are more likely to be affected than 
others. People who are more likely to experience symptoms of mental illnesses or disorders during 
the COVID-19 pandemic include: people from racial and ethnic minority groups, mothers and 
pregnant people, people with financial or housing insecurity, children, people with disabilities, 
people with preexisting mental illnesses or substance use problems, and health care workers.”2 
 
1 See - https://covid19.nih.gov/covid-19-topics/mental-health  
2 See - Id.  
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16. 
Moreover, the “people who belong to more than one of these groups may be at an even 
greater risk for mental illness.” As per the final PSI report, Bully falls into three out of the seven 
NIH high risk categories.3 
17. 
Bully’s substance abuse directly contributed to his car crash in 2010 that resulted in serious 
spinal injuries, for which he still requires physical therapy.  
18. 
It also directly contributed to his DUI arrest in 2011 (the “DUI”). 
19. 
After the DUI, Bully did not have any more legal troubles and refrained from any 
irresponsible or illegal behavior. 
20. 
However, when the pandemic began, and the world was thrust into uncertainty, Bully was 
still suffering from anxiety, depression, and substance use, which, in his case, had reached the 
point of abuse.  
21. 
Not only did Bully suffer from the top three pandemic-related issues of anxiety, depression, 
and substance abuse as reported by the NIH, but he also satisfied three of its seven risk categories, 
by: (a) being a person from an ethnic and racial minority group, (b) being a person with financial 
insecurity, and (c) being a person with a substance abuse disorder.  
22. 
Thereby placing him at substantially more risk for mental illness and substance abuse. Both 
of which Bully already suffered from.  
23. 
The unprecedented (in our lifetime) COVID-19 pandemic caused extreme isolation for 
Bully, which only exacerbated his feelings of depression, anxiety (uncertainty), and increased his 
substance use, which would lead to the improper conduct he has taken responsibility for here.  
 
 
 
3 See - Id. 
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III.  Variance from Recommendation for Incarceration range of 27-33 months.   
 
24. 
The guidelines are just one of a number of sentencing factors set forth in 18 U.S.C. 
§3553(a).  See U.S. v. Booker, 543 U.S. 220, 264-65, (2005).  The primary directive in §3553(a) 
is for sentencing to “impose a sentence sufficient, but not greater than necessary, to comply with 
the purposes set forth in paragraph 2.” Section 3553(a) states that such purposes are:  
(1)   the nature and circumstances of the offense and the history and characteristics of the 
defendant” (§ 3553(a)(l));  
(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 of 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.  
 
25. 
In determining the minimally sufficient sentence, §3553(a)(3) further directs sentencing 
courts to consider the following factors:  
3) “the kinds of sentences available” (§3553(a)(3)); 
4) the kinds of sentencing and sentencing range established for the category of the offense 
(§3553(a)(4));   
5) And any pertinent policy statement issued by the Sentencing Commission… 
(§3553(a)(5) 
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6) “the need to avoid unwarranted sentence disparities among defendants with similar 
records who have been found guilty of similar conduct” (§3553(a)(6));  
7) “the need to provide restitution to any victims of the offense.” (§3553(a)(7)). 
 
26. 
The Court, in determining whether to impose a term of imprisonment and, if a term of 
imprisonment is to be imposed, in determining the length of the term, shall consider the factors set 
forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is 
not an appropriate means of promoting correction and rehabilitation. See 18 U.S.C. §3582(a).   
27. 
Under U.S.C. §3661, “no limitation shall be placed on the information concerning the 
background, character, and conduct of the defendant which a court of the United States may 
receive and consider for the purpose of imposing an appropriate sentence.” This statutory language 
certainly overrides the (now-advisory) policy statements in Part H of the sentencing guidelines, 
which list as “not ordinarily relevant” to sentencing a variety of factors such as the defendant’s 
age, educational and vocational skills, mental and emotional conditions, drug or alcohol 
dependence, and lack of guidance as a youth. See U.S.S.G. §5Hl.    
28. 
A sentencing court must now consider all of the §3553(a) factors, not just the guidelines, 
in determining a sentence that is sufficient but not greater than necessary to meet the goals of 
sentencing. And where the guidelines conflict with other sentencing factors set forth in §3553(a), 
these statutory sentencing factors should generally trump the guidelines. See United States v. 
Denardi,892 F.2d 269,276-77 (3d Cir. 1989) (Becker, J., concurring in part, dissenting in part) 
(arguing that since § 3553(a) requires sentence be no greater than necessary to meet four purposes 
of sentencing, imposition of sentence greater than necessary to meet those purposes violates statute 
and is reversible, even if within guideline range).   
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29. 
§ 3553(a) (5) allows for the court to consider “any pertinent policy statement” regarding 
amendments by Congress (“regardless of whether such amendments have yet to be incorporated 
by the Sentencing Commission into amendments…).   
30. 
On Dec. 21, 2018, the First Step Act of 2018 was signed into law.  The Act expresses the 
most recent policy statement of Congress.  Specifically, the law articulates that “the Department 
of Justice (DOJ) to establish a risk and needs assessment system to evaluate the recidivism risk of 
prisoners; to guide housing, grouping, and program assignments; and to incentivize and reward 
participation in and completion of recidivism reduction programs and productive activities” 
(Summary S.756-115th Congress (2017-2018). 
31. 
The Presidential Statement upon the signing of the First Step Act articulated the policy that 
the reforms will “prepare inmates to successfully rejoin society and enact commonsense 
sentencing reforms to make our justice system fairer for all Americans… These historic reforms 
will address problems that have plagued our justice system for years.  Currently, approximately 77 
percent of State inmates and 38 percent of Federal inmates are rearrested within five years of their 
release”. (See Whitehouse briefings statement issued Dec. 21, 2018).   
 
IV.  Application of the Statutory Sentencing Factors to the Facts of the Case: The 
Nature and Circumstances of the Offense and the History of the Offender 
 
32. 
Length of Time Before First Crime.  Bully has been a responsible and hard-working 
immigrant and citizen before getting mixed up in the offense for which he takes responsibility 
before this Court.   
33. 
Departure from the recommendations to a punishment not involving additional 
incarceration is warranted due to the length of time until the first offense.  U.S. v. Ward, 814 F. 
Supp. 23 (E.D. Va., 1993).  
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34. 
 Aberrant Behavior.  This matter is the Bully’s first of this nature and constitutes “aberrant 
conduct.”  See U.S. v. Morales, 972 F.2d 1007, 1011 (9th Cir. 1993) (court may downward depart 
for "aberrant conduct" where there is no criminal history); See also U.S. v. Takai, 941 F.2d 738, 
744 (9th Cir. 1991) (multiple incidents over six-week period still constituted a single act of aberrant 
behavior).   
35. 
 Excellent Employment History.  Defendant has maintained self-employment since 2008 
in the United States and worked himself through school, including Florida Atlantic University. 
Such continuous employment warrants a downward departure. See U.S. v. Thompson, 74 
F.Supp.2d 69 (D. Mass. 1999); U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998) (the district court did 
not abuse its discretion in departing downward by three levels when, as one of eleven factors, it 
considered the defendant’s “long impressive work history ...where good jobs are scarce.” Even 
though under §5H1.5 is ordinarily a discouraged basis, here the circumstance was unusual); See 
also U.S. v. Higgins, 967 F.2d 841 (3d Cir. 1992) (young age and stable employment will justify 
a downward departure if "extraordinary"; remanded to see if judge realized he had power); U.S. v. 
Alba, 933 F.2d 1117 (2d Cir. 1991) (long-standing employment at two jobs); U.S. v. Jagmohan, 
909 F.2d 61 (2d Cir. 1990) (exceptional employment history and nature of the crime); U.S. v. Big 
Crow, 898 F.2d 1326, 1331-32 (8th Cir. 1990) (excellent employment record).  
36. 
Loss of Business, Assets, And Source Of Income.  U.S. v. Gaind, 829 F. Supp. 669 
(S.D.N.Y. 1993) (the destruction of a defendant's only business, involving testing material for the 
EPA, warranted a downward departure in false statement case because the elimination of the 
defendant's inability to engage in similar or related activities and the substantial loss of assets and 
income were a source of individual and general deterrence).     
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37. 
Sua Sponte Departure By Court.  U.S. v. Vizcaino, 202 F.2d 345, 348 (D.C. Cir. Cir. 2000) 
(implicitly recognizing the authority of district court to depart sua sponte but finding no plain error 
not to do so); U.S. v. Ekhator, 17 F.3d 53 (2d Cir. 1994) (even where D agreed not to ask for 
downward departure, court may do so sua sponte if unusual family circumstances; remanded); 
U.S. v. Williams, 65 F.3d 301, 309-310 (2d Cir. 1995) (“we wish to emphasize that the Sentencing 
Guidelines do not displace the traditional role of the district court in bringing compassion and 
common sense to the sentencing process . . . In areas where the Sentencing Commission has not 
spoken . . . district courts should not hesitate to use their discretion in devising sentences that 
provide individualized justice”). 
V. ZERO-POINT OFFENDER ADJUSTMENT 
38. 
It is respectfully submitted that Bully merits a sentence reduction that provides the benefits 
of the Zero-Point Offender Adjustment, proposed in Part C, § 4C1.1 (the “Zero-Point 
Adjustment”), (Effective November 1, 2023), which is allowed in his plea agreement and more 
adequately reflects Bully’s non-existent prior criminal history. The Zero-Point Adjustment reduces 
the recommended advisory guidelines by two levels. To qualify, defendants must not have: any 
prior criminal history; received a terrorism adjustment under § 341-4; used violence or credible 
threats of violence in connection with the offense; caused death or serious bodily injury because 
of the offense; caused a death or serious bodily injury because of the offense; committed a sex 
offense; personally caused a substantial financial hardship; possessed, received, purchased, 
transported, transferred, sold, or disposed of a firearm or other dangerous weapon (or induced 
another person to) in connection with the offense; committed a civil rights offense covered under 
§ 2H1.1 (offenses involving individual rights); committed a hate crime; received an adjustment 
under § 3A1.1 (hate crime motivation or vulnerable victim), § 3A1.5 (serious human rights 
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offense), or § 3B1.1 (aggravating role); or engaged in a continuing criminal enterprise, as defined 
in 21 U.S.C. § 848. Here, Bully meets all these criteria except one; he scores one criminal history 
point because of the DUI in 2011. However, it is respectfully submitted that because the DUI is 
both so far removed in time and so wholly unrelated to the current conduct for which Bully has 
accepted responsibility, that it would be just and proper under the circumstances to provide a 
sentence reduction that reflects the Zero-Point Adjustment.  
VI. ACTUAL LOSS WOULD BEST SERVE THE INTEREST OF JUSTICE 
39. 
It is respectfully submitted that Bully should receive a sentence reduction that takes into 
account that when submitting the subject applications, which contained false information, Bully 
had no knowledge whatsoever of the definitive amount he would receive or ultimately “requested”. 
Therefore, the intended loss in this matter does not accurately reflect Bully’s intent when 
submitting the subject applications. Moreover, since the Eleventh Circuit’s decision in United 
States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc), court’s are required to only consider 
actual loss at sentencing.  As explained by Judge Rodolfo A. Ruiz II, United States District Court 
Judge, of the Southern District of Florida:  
Certainly, the Court recognizes pre-Dupree caselaw from the 
Eleventh Circuit “require[d] district courts to consider the 
intended loss amount when calculating the loss attributable to 
the defendant.” Verdeza, 69 F.4th at 794 (citing United States v. 
Orton, 73 F.3d 331, 333 (11th Cir. 1996)); see also United States v. 
Moss, 34 F.4th 1176, 1190 (11th Cir. 2022) (looking to intended loss 
when applying § 2B1.1).  Moss and Orton, however, relied on the 
commentary to the Guidelines—not the text. See Moss, 34 F.4th at 
1190; Orton, 73 F.3d at 333. But the Eleventh Circuit’s mandate 
in Dupree is clear: if the Guidelines are unambiguous, this Court 
does not reach the commentary.  Dupree, 57 F.4th at 1276–77.  
Additionally, while the traditional tools of construction can include 
the “structure, history, and purpose” of a regulation, see Kisor, 139 
S. Ct. at 2415, the Court finds no need to consider the “context and 
purpose of” § 2B1.1. You, 74 F.4th at 397. Generally, a court’s 
inquiry “must begin, and usually end, with the text.” See United 
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States v. Stevens, 997 F.3d 1307, 1314 (11th Cir. 2021) (quoting 
Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 
(11th Cir. 1995)). Where the text of a provision is “plain and 
unambiguous, there is no need for further inquiry.” See id. (quoting 
People for the Ethical Treatment of Animals, Inc. v. Miami 
Seaquarium, 879 F.3d 1142, 1146 (11th Cir. 2018)); see also 
Dupree, 57 F.4th at 1279 (“We conclude that the text of § 4B1.2(b) 
unambiguously excludes inchoate crimes. Under Kisor, that 
concludes our analysis, and we have no need to consider, much less 
defer to, the commentary[.]”). Here, § 2B1.1 is unambiguous. So, 
the Court cannot consider the commentary and is bound by § 
2B1.1’s plain text. 
 
 
See United States of America vs. Minal Patel, a/k/a “Minalkumar Patel,” Case No. 19-CR-
80181-RAR; Sentence Order Regarding Loss Amount 08/23/2023 [D.E. 547] (the “Ruiz II 
Opinion”). [Emphasis added]. A true and correct copy of the Ruiz II Opinion is attached hereto 
and marked as Exhibit “A” for the Court’s ease of reference. 
40. 
Although not binding upon this Court, it is respectfully submitted that Bully merits a 
sentence reduction that reflects the actual loss instead of the intended loss for the reasons set forth 
in the Ruiz II Opinion.   
VII. CONCLUSION 
Bully’s individual characteristics and the nature of the offense for which he is before the 
court for sentencing warrants consideration of a sentence not involving any additional 
incarceration. Allowing Bully to work and make restitution would be accomplished without a 
sentence requiring incarceration and would allow him to seek the mental health and substance 
abuse therapy he undoubtedly needs.  Moreover, Bully has gained substantial insight from this 
experience, provided full disclosure of his conduct, accepted responsibility, and there is no 
likelihood of recidivism, as evidenced by his lack of prior criminal history. Therefore, it is 
respectfully submitted that the statutory sentencing objectives are satisfied without incarceration.   
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CERTIFICATE OF SERVICE 
 
   
I HEREBY CERTIFY that a copy of the foregoing was served on December 4, 2023, and 
will be served upon filing with the Clerk of Court using the CM/ECF system.   
 
 
 
 
 
 
 
 
Respectfully submitted, 
 
 
 
 
 
 
 
 
 
/s/ Jason Bravo 
 
 
 
 
 
 
 
Jason Bravo, Esq. 
 
 
 
 
 
 
 
FL Bar. # 85743 
 
The Bravo Law Firm, PLLC 
Jason Bravo, Esq. 
368 Minorca Avenue 
 
 
 
 
 
 
 
Coral Gables, FL 33134 
 
 
 
 
 
 
 
T: 786.732.0065 
 
 
 
 
 
 
 
 
jbravo@thebravolawfirm.com 
 
 
 
 
 
 
 
admin@thebravolawfirm.com 
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Exhibit “A”
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 19-CR-80181-RAR 
 
UNITED STATES OF AMERICA  
 
 
 
 
vs. 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
MINAL PATEL, a/k/a “Minalkumar Patel,” 
 
Defendant. 
 
 
 
 
____________________________________/ 
 
SENTENCING ORDER REGARDING LOSS AMOUNT 
When it comes to the United States Sentencing Guidelines, they don’t always mean what 
they say.  That’s because the United States Sentencing Commission has incorporated interpretive 
commentary intended to assist district judges in the application of the Guidelines to a specific 
offense.  Nowhere is this dichotomy about what the Guidelines say versus what they mean more 
apparent than in § 2B1.1, titled “Larceny, Embezzlement, and Other Forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses 
Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the 
United States.”  Within § 2B1.1, the Guideline provides a graduated scale that enhances a 
defendant’s total offense level based on the monetary amount of “loss.”  See § 2B1.1(b)(1) (“If the 
loss exceeded $6,500, increase the offense level as follows . . . .”).   
At first blush, this seems quite straightforward.  The more “loss” caused by a defendant, 
the greater the enhancement.  But not so fast.  The commentary defines “loss” not as the amount 
of loss actually caused by a defendant’s actions.  Instead, Application Note 3(A) of the Guidelines 
commentary expands the ordinary meaning of “loss” by instructing judges that “loss is the greater 
of actual loss or intended loss.”  (emphasis added).  So, what is a district court to do when the 
commentary expands the plain meaning of the Guidelines in such a way?   
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The answer to that question recently changed with the Eleventh Circuit’s decision in United 
States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc).  In Dupree, the Eleventh Circuit 
discussed the effect of the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), 
on the Supreme Court’s earlier decision in Stinson v. United States, 508 U.S. 36 (1993).  Stinson 
provided that the Sentencing Commission’s commentary on the Guidelines “was binding on 
federal courts unless the commentary was ‘plainly erroneous or inconsistent with the guideline 
itself, a federal statute, or the Constitution.’”  United States v. Verdeza, 69 F.4th 780, 793–94 (11th 
Cir. 2023) (alteration accepted) (quoting United States v. Wilson, 993 F.2d 214, 216 (11th Cir. 
1993), overruling recognized by Verdeza, 69 F.4th at 793).  But that changed when the Eleventh 
Circuit applied “Kisor’s gloss on [Auer v. Robbins, 519 U.S. 452 (1997)] and [Bowles v. Seminole 
Rock & Sand Co., 325 U.S. 410 (1945)]” to Stinson.  Dupree, 57 F.4th at 1275.  In applying Kisor 
to Stinson, the Eleventh Circuit “overruled [Circuit] precedent on how the Guidelines and the 
commentary interact.”  Verdeza, 69 F.4th at 793.  Now, when a court in this Circuit is faced with 
a discrepancy between the Guidelines and the commentary, it must first “exhaust all the ‘traditional 
tools’ of construction” to determine if a guideline is genuinely ambiguous.  Dupree, 57 F.4th at 
1275 (quoting Kisor, 139 S. Ct. at 2415).  If a guideline is unambiguous, “there is no plausible 
reason for deference” to the commentary, and the court must apply the guideline’s unambiguous 
meaning.  See id. (quoting Kisor, 139 S. Ct. at 2415). 
Kisor’s effect on Stinson is an issue that is dividing a growing number of circuits.  See 
United States v. Vargas, 74 F.4th 673, 678 & nn. 2–3 (5th Cir. 2023) (en banc) (citing cases).  
Indeed, courts have split on the exact issue presented in this case.  Compare United States v. Banks, 
55 F.4th 246, 257 (3d Cir. 2022) (“The ordinary meaning of ‘loss’ in the context of § 2B1.1 is 
‘actual loss.’”); United States v. Kennert, No. 22-1998, 2023 WL 4977456, at *4 (6th Cir. Aug. 3, 
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2023) (Murphy, J., concurring) (recognizing that “just because ‘loss’ can refer to [] different harms 
does not mean that it can refer to nonexistent ones too”), with United States v. You, 74 F.4th 378, 
397 (6th Cir. 2023) (applying Kisor framework to the Guidelines but concluding “loss” is 
ambiguous).  For its part, the Government argues that (1) Dupree does not control this case because 
the meaning of loss is ambiguous; and (2) recent Eleventh Circuit caselaw has signaled that courts 
should consider intended rather than actual loss when applying § 2B1.1.  See United States’ 
Sentencing Mem., [ECF No. 527], at 8–10.  As explained on the record at Defendant’s sentencing 
hearing, the Court disagrees with both arguments.  See Paperless Minute Entry, [ECF No. 542].  
Noting the growing disagreement among courts on how to apply § 2B1.1, the Court issues this 
supplemental decision to thoroughly explain its reasoning. 
The Court begins with the Government’s second point: that recent Eleventh Circuit caselaw 
signals § 2B1.1 is more appropriately read to encompass intended loss.  The caselaw cited does 
not support this conclusion.  The Government points to three recent decisions in which the 
Eleventh Circuit, when reviewing for plain error, did not disrupt district court sentences that relied 
on reading § 2B1.1 to include intended loss.  See Verdeza, 69 F.4th at 794; United States v. 
Crowther, No. 21-12255, 2023 WL 3813509, at *3 (11th Cir. June 5, 2023); United States v. 
Corker, No. 22-10192, 2023 WL 1777195, at *4 (11th Cir. Feb. 6, 2023).  But the Court does not 
find that these decisions compel reading the guideline to include intended loss.  In all three cases, 
the Eleventh Circuit emphasized it was only reviewing for plain error, which in this circuit requires 
the exact issue to have been “specifically and directly resolved by . . . on point precedent from the 
Supreme Court or” the Eleventh Circuit.  United States v. Sanchez, 940 F.3d 526, 537 (11th Cir. 
2019).  As recognized by the Eleventh Circuit, “whatever else Dupree did, it did not ‘specifically 
and directly resolve’ the question of whether § 2B1.1’s definition of ‘loss’ is ambiguous.”  
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Verdeza, 69 F.4th at 794 (alteration accepted).  Because neither Dupree, Verdeza, Crowther, or 
Corker decided whether § 2B1.1 is ambiguous, they are not controlling on this issue.  The Court 
must now turn, then, to determining whether § 2B1.1 is ambiguous. 
Section 2B1.1 requires courts to “apply the greatest” amount of “[l]oss” at sentencing.  
§ 2B1.1(b)(1).  To determine if this may possibly encompass intended loss, the Court must 
“apply[] [the] traditional tools of statutory interpretation” and ascertain the “plain language 
definition” of “loss.”  Dupree, 57 F.4th at 1277.  As stated by the Third Circuit when reviewing 
the same issue, “loss” only has one possible meaning: actual loss.  See Banks, 55 F.4th at 257–58.  
Dictionary definitions of “loss” vary in scope—but all clearly contemplate a loss actually suffered 
by the victim.  Id.  To give just a few definitions, “loss” ordinarily refers to “the act or fact of 
losing,” “a person or thing or an amount that is lost,” and a “decrease in amount, magnitude, or 
degree.”  WEBSTER’S THIRD NEW INT’L DICTIONARY, at 1338 (1993) (emphases added); see also 
Banks, 55 F.4th at 257–58 (providing additional definitions).  None of these definitions provide 
room for considering “nonexistent” losses.  Kennert, 2023 WL 4977456, at *4 (Murphy, J., 
concurring).  Indeed, where the loss is merely “intended” it never materialized, as no “amount . . . 
[was] lost.”  WEBSTER’S THIRD NEW INT’L DICTIONARY, at 1338.  By instructing courts to consider 
intended loss, the commentary expands the concept of “loss” beyond its ordinary meaning.  Thus, 
as explained at sentencing, this Court finds § 2B1.1 unambiguously requires courts to only 
consider actual loss.1   
 
1  The Court notes, however, that while § 2B1.1 requires a court to only use actual loss when calculating a 
defendant’s offense level, nothing prohibits a court from considering intended loss pursuant to 18 U.S.C. 
§ 3553(a).  Courts continue to have “considerable discretion in deciding whether the § 3553(a) factors 
justify a variance and the extent of one that is appropriate.”  See United States v. Oudomsine, 57 F.4th 1262, 
1266 (11th Cir. 2023) (quoting United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)). 
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Certainly, the Court recognizes pre-Dupree caselaw from the Eleventh Circuit “require[d] 
district courts to consider the intended loss amount when calculating the loss attributable to the 
defendant.”  Verdeza, 69 F.4th at 794 (citing United States v. Orton, 73 F.3d 331, 333 (11th Cir. 
1996)); see also United States v. Moss, 34 F.4th 1176, 1190 (11th Cir. 2022) (looking to intended 
loss when applying § 2B1.1).  Moss and Orton, however, relied on the commentary to the 
Guidelines—not the text.  See Moss, 34 F.4th at 1190; Orton, 73 F.3d at 333.  But the Eleventh 
Circuit’s mandate in Dupree is clear: if the Guidelines are unambiguous, this Court does not reach 
the commentary.  Dupree, 57 F.4th at 1276–77.  Additionally, while the traditional tools of 
construction can include the “structure, history, and purpose” of a regulation, see Kisor, 139 S. Ct. 
at 2415, the Court finds no need to consider the “context and purpose of” § 2B1.1.  You, 74 F.4th 
at 397.  Generally, a court’s inquiry “must begin, and usually end[], with the text.”  See United 
States v. Stevens, 997 F.3d 1307, 1314 (11th Cir. 2021) (quoting Boca Ciega Hotel, Inc. v. 
Bouchard Transp. Co., 51 F.3d 235, 237 (11th Cir. 1995)).  Where the text of a provision is “plain 
and unambiguous, there is no need for further inquiry.”  See id. (quoting People for the Ethical 
Treatment of Animals, Inc. v. Miami Seaquarium, 879 F.3d 1142, 1146 (11th Cir. 2018)); see also 
Dupree, 57 F.4th at 1279 (“We conclude that the text of § 4B1.2(b) unambiguously excludes 
inchoate crimes.  Under Kisor, that concludes our analysis, and we have no need to consider, much 
less defer to, the commentary[.]”).  Here, § 2B1.1 is unambiguous.  So, the Court cannot consider 
the commentary and is bound by § 2B1.1’s plain text.    
In sum, as explained on the record at sentencing, Defendant’s objection to the use of 
intended loss—namely, the total amount billed to Medicare by Defendant as opposed to the actual 
amount paid out by Medicare—is SUSTAINED.  See Def.’s Mem. in Aid of Sentencing, [ECF 
No. 530], at 11–15; Def.’s Objs. to the Presentence Investigation Report, [ECF No. 526], at 4–5.  
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Therefore, the calculations found in paragraph 71 of Defendants’ Presentence Investigation 
Report, [ECF No. 525], were adjusted accordingly at sentencing to reflect the proper loss figure 
under § 2B1.1.  See Paperless Minute Entry, [ECF No. 542].  Instead of the intended loss amount 
of $463,889,078, which generated a 28-level increase under § 2B1.1(b)(1)(O), the Court relied on 
the actual loss amount of $187,369,693.38, which generated a 26-level increase under 
§ 2B1.1(b)(1)(N). 
DONE AND ORDERED in Miami, Florida, this 23rd day of August, 2023. 
 
____________________________________  
RODOLFO A. RUIZ II 
UNITED STATES DISTRICT JUDGE 
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