Government's Sentencing Memorandum — United States v. Daniel Joseph Tisone

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Case 2:22-cr-00039-SPC-NPM           Document 71    Filed 01/09/23   Page 1 of 2 PageID 461




                          UNITED STATES DISTRICT COURT
                           MIDDLE DISTRICT OF FLORIDA
                              FORT MYERS DIVISION

    UNITED STATES OF AMERICA                   CASE NO.: 2:22-CR-39-SPC-NPM

    vs.

    DANIEL JOSEPH TISONE
                                           /

          DEFENSE’S OBJECTION TO PSI CALCULATING LOSS USING
             “INTENDED LOSS” AS OPPOSED TO “ACTUAL LOSS”

          1. On August 26, 2022, Mr. Tisone appeared before U.S. Magistrate Judge
             Nicholas P. Mizell and pled guilty to Counts Two, Eight, Fourteen, and
             Eighteen of the indictment.
          2. Pursuant to his plea agreement, Mr. Tisone agreed to pay restitution for
             the money that he obtained, which is $2,617,447.17.
          3. In calculating the loss amount, Probation considers the amount of
             “intended loss” as opposed to the “actual loss.” Therefore, Probation
             alleges that Mr. Tisone is responsible for $10,792,054.17.
          4. Probation recommends in the PSI that the Court increases Mr. Tisone’s
             guideline range by 20 levels because the loss amount was more than
             $9,500,000, but less than $25,000,000.
          5. If the Court considers only the actual loss amount, the guidelines would
             only be increased by 16 levels since the amount is over $1,500,000 but
             less than $3,500,000.
          6. While U.S.S.G. § 2B1.1(b)(1) requires Courts to determine offense
             levels by considering the amount of loss, the guideline fails to define
             what “loss” actually means. It would be error to apply the commentary
             which references “intended loss.” Mr. Tisone should be sentenced based
             exclusively on actual loss.
Case 2:22-cr-00039-SPC-NPM      Document 71     Filed 01/09/23    Page 2 of 2 PageID 462




       7. The Court has sufficient precedent to determine loss based on “actual
          loss.” See: United States v. Riccardi, 989 F.3d 476, 481-482, 484-85
          (6th Cir. 2021), United States v. Banks, No. 22-1607 (3d Cir. 2022),
          United States v. Dupree, No. 19-13776 (11th Cir. 2022).
       8. Wherefore, based upon the above and foregoing, the Defendant
          respectfully requests this Court to determine loss based on the funds that
          were actually obtained.

          I HEREBY CERTIFY that a true and correct copy of the foregoing was
    furnished via CM/ECF to: United States Attorney’s Office, AUSA Trenton
    Reichling and Probation Officer Nick Stevens, this 9th day of January, 2023.

                              Respectfully submitted,
                              LAW OFFICES OF MARK EIGLARSH
                              3107 Stirling Road
                              Suite 207
                              Fort Lauderdale, Florida 33312
                              Telephone: (954) 500-0003
                              Facsimile: (305) 674-0102
                              Email: Mark@EiglarshLaw.com

                              BY: _/S/_MARK EIGLARSH______________
                                    MARK EIGLARSH
                                    Florida Bar No.: 956414


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