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Government's Response to Defendant's Sentencing Position — United States v. Carlos Vazquez

No. 1:21-cr-20231-DMM · Doc. 58 · Docket on CourtListener

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Case 1:21-cr-20231-DMM Document 58 Entered on FLSD Docket 11/14/2021 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-CR-20231-MIDDLEBROOKS

UNITED STATES OF AMERICA

CARLOS VAZQUEZ,

Defendant.
/

UNITED STATES OF AMERICA’S RESPONSE TO
POSITION OF DEFENDANT WITH RESPECT TO SENTENCING FACTORS,
REQUEST FOR VARIANCE AND INCORPORATED MEMORANDUM OF LAW

The United States of America files this response to Defendant’s objection to the PSI, styled,

“Position of Defendant with Respect to Sentencing Factors, Request for Variance and Incorporated

Memorandum of Law,” DE 49 (“Defendant’s Motion”).

A. Defendant has not Accepted Responsibility

“A defendant who maintains innocence, blames others, and expresses regret only for the

consequences of criminal conduct does not accept responsibility within the meaning of § 3E1.1.”

United States v. Fowler, 213 Fed. Appx. 788, 790 (11th Cir. 2007) (citing United States v. Speck,

992 F.2d 860, 863 (8th Cir.1993)) (emphasis added). The comments to the Guidelines make clear

that a defendant's acceptance of responsibility “may be outweighed by conduct of the defendant

that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea

is not entitled to an adjustment under this section as a matter of right.” U.S.S.G. § 3E1.1(a) cmt.

n. 3 (2001). Defendant’s Motion blames an unindicted co-conspirator for perpetuating the fraud

at issue in this case and suggests that Defendant suffered from “willful blindness or deliberate

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ignorance.” Putting aside the obstruction of justice, Defendant’s Motion makes clear that he has

not accepted responsibility – by blaming others, and minimizing his responsibility when he

received the proceeds of the fraud into an account he opened for that purpose. Moreover,

Defendant did not provide U.S. Probation with a timely statement of responsibility or comply with

U.S. Probation’s requests for information. PSI ¶ 21. Instead, Defendant recorded a backdated

deed in the public records and misstates his immigration status to avoid the consequences of his

conduct. Accordingly, defendant has not accepted responsibility.

B. Defendant has obstructed justice by repeatedly lying about his Citizenship.

Defendant is not a United States Citizen. He has repeatedly lied about his immigration

status throughout these proceedings.

According to his initial pretrial services report, Defendant advised U.S. Probation that he

was born January 18, 1964 in Havana, Cuba, but is a naturalized United States Citizen. However,

as reflected in the report, probation discovered that Defendant has an outstanding warrant of

removal pending with immigration, and a final order of removal was entered. This was specifically

addressed by Magistrate Goodman when fashioning the terms of Defendant’s bond. Hrg. Tr. 9:11-

12:4 Mar. 29, 2021.

At the change of plea hearing on September 13, 2021, Defendant stated that he was born

in Cuba but has “been an American citizen since 1976.” DE54:13. The United States had to request

that the Magistrate complete the full plea colloquy regarding removal from the country. DE 54:15-

17. During his pre-trial services interview, Defendant claimed to be born in Chicago PSI ¶ 19.

Following the change of plea, the undersigned confirmed with Immigration and Customs

Enforcement that Defendant is NOT a United States Citizen. Defendant’s immigration file which

will be at Vazquez’s sentencing contains the following:

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 A copy of Defendant’s Cuban birth certificate, which contains the same date (Jan.

18, 1964) and place of birth (Havana) as he initially told U.S. Probation,

 A copy of Defendant’s Memorandum of Creation of Record of Lawful Permanent

Residence,

 A Memorandum of Oral Decision finding that Defendant is subject to removal, and

ineligible for relief which was personally served on Defendant on November 6,

1997,

 An Immigration and Naturalization Service order of supervision referencing the

order excluding or deporting Defendant and requiring that Defendant periodically

report to the Immigration and Naturalization Service, which was acknowledged and

signed by Defendant on April 16, 1999,

 An INS order of supervision referencing the order excluding or deporting

Defendant and requiring that Defendant periodically report to the Immigration and

Naturalization Service, which was acknowledged and signed by Defendant on April

4, 2000.

The immigration file also contains the Board of Immigration Appeals written decision

determining that “there is no question [Defendant] has been convicted of aggravated felonies. An

alien lawfully admitted for permanent residence who is convicted of an aggravated felony is not

eligible for cancellation of removal or a waiver of admissibility.” The Board of Immigration

Appeals specifically considered Defendant’s argument that he derived U.S. Citizenship from his

father, and rejected his claim based on Defendant’s failure to demonstrate that his father had legal

custody of him.

A number of federal appeals courts have determined that making false misrepresentations

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regarding citizenship justify an enhancement for obstruction of justice. See United States v. Perez-

Crisostomo, 899 F.3d 73, 76 (1st Cir. 2018) (“This court has also repeatedly affirmed that lying

about one’s name and nationality during criminal proceedings is material and merits an obstruction

enhancement.”). The Sixth Circuit Court of appeals has affirmed an enhancement for obstruction

of justice in a similar case. See United States v. Bruce, 396 F.3d 697, 712 (6th Cir. 2005), vacated

in part on reh'g, 405 F.3d 1034 (6th Cir. 2005). As explained by the Sixth Circuit:

Defendant stated during a presentence investigation interview that he was a citizen
of Bermuda until he became a naturalized United States citizen in 1991. He then
recanted this claim, however, when the probation officer confronted him with a
1993 document in which he acknowledged that he was an alien who was being
released from the custody of the Immigration and Naturalization Service (“INS”)
until he could be deported. Upon being shown this document, Defendant changed
his story and claimed to be a citizen of Bermuda.

In Bruce, the Defendant quickly recanted his false claim of citizenship during a pre-trial services

interview. Here however, Defendant has repeatedly claimed to multiple probation officers and

magistrates, and this Court that he is a naturalized United States Citizen. He still apparently

maintains he is a United States citizen.

Defendant argues that his claims to Untied States Citizenship to U.S. Probation are not

material. However, as explained by the Sixth Circuit “information is ‘material’ where, ‘if believed,

it would tend to influence or affect the issue under determination.’” Id. (emphasis original, internal

quotations removed) (citing U.S.S.G. § 3C1.1, cmt. n.6). “It follows, therefore, that the guideline

is applicable even though a probation officer might not have believed the defendant’s false

assertion or, as here, was able to quickly disprove it.” Id. Here, Defendant’s conduct went far

beyond simple misstatements to U.S. Probation. Defendant provided the false information in

connection with his bond application. He also misstated his citizenship to Magistrate McAliley in

connection with his change of plea, causing her to initially forego advising Defendant of the

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immigration consequences of his plea. Accordingly, Defendants false statements regarding his

immigration status justify an enhancement for obstruction of justice.

C. The sophisticated means enhancement is appropriate.

As the commentary to the sentencing guidelines states, “Conduct such as hiding assets or

transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial

accounts also ordinarily indicates sophisticated means.” United States v. Jenkins, 497 Fed. Appx.

931, 932 (11th Cir. 2012). Here the entire fraud relied up on a corporate shell, namely Big League

L.L.C. Big League had been defunct for years, but Defendant reinstated it in order to have a

conduit to commit the PPP fraud at issue here. Additionally, fake tax documents were prepared

on behalf of Big League L.L.C. and submitted in support of the fraudulent loan application,

Defendant opened a new bank account to facilitate the fraud. Accordingly, the sophisticated means

enhancement is appropriate.

Conclusion

For the foregoing reasons, Defendant’s objections to the PSI should be overruled.

Respectfully submitted,

JUAN ANTONIO GONZALEZ
UNITED STATES ATTORNEY

By: /s/ Hayden P. O’Byrne
Hayden P. O’Byrne
Assistant United States Attorney
Florida Bar No. 60024
United States Attorney’s Office SDFL
99 Northeast 4th Street
Miami, FL. 33132-2111
Tel: (305) 961-9447
Hayden.obyrne@usdoj.gov

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