Government Sentencing Memorandum — United States v. Smith (Dkt. 32, D. Mass.)

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The government's sentencing memorandum in United States v. Devin Smith, Criminal No. 22-cr-10045-RGS, in the U.S. District Court for the District of Massachusetts, filed November 5, 2022 as Document 32. It states that Smith used stolen personal information of 40 victims to file claims and receive more than $230,000 in unemployment assistance through 12 state programs, and received two business loans subject to forgiveness totaling more than $38,000. The government recommends 45 months of incarceration, including 21 months on Count I and the mandatory additional 24 months on Count II, 36 months of supervised release, and restitution and forfeiture.

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Case 1:22-cr-10045-RGS Document 32 Filed 11/05/22 Page 1 of 5




                            UNITED STATES DISTRICT COURT
                             DISTRICT OF MASSACHUSETTS

 UNITED STATES OF AMERICA


        v.
                                                   CRIMINAL No. 22-cr-10045-RGS
 DEVIN SMITH

           Defendant


                       GOVERNMENT SENTENCING MEMORANDUM

                                 FACTUAL BACKGROUND

       Defendant Devin Smith (“Smith”) defrauded government agencies across the country by

using stolen personal information of victims and creating fictitious businesses. Over the course

of six months, Smith took advantage of victims whose personal information had been stolen as

well as state agencies that were working tirelessly to provide government assistance to those in

need at the height of a global pandemic. In total, Smith filed claims and received more than

$230,000 in unemployment assistance through 12 state programs1 using the stolen personal

information of 40 victims. After Smith was charged, the government also uncovered that Smith

filed two business loan applications in the names of fictitious businesses to take advantage of the

Paycheck Protection Program, a federal pandemic relief program designed to protect employees

from pandemic-related layoffs.2 Smith received two business loans subject to loan forgiveness

totaling more than $38,000.



       1
        The state unemployment programs, in turn, received funding from the U.S. Department
of Labor.
       2
        Under the Supplemental Plea Agreement, ECF No. 29, the parties agreed that the Court
should consider these two fraudulent loans when imposing a sentence. The Paycheck Protection

           Case 1:22-cr-10045-RGS Document 32 Filed 11/05/22 Page 2 of 5




       U.S. Probation provided additional details regarding Smith’s conduct in the Presentence

Investigation Report (“PSR”). The PSR was not subject to any objections by the government or

the defense, and the government incorporates that factual background herein by reference.

                                     RECOMMENDATION

       In compliance with its obligations under the plea agreement, and consistent with the PSR,

the government recommends the following sentence:

           Period of Incarceration. A period of incarceration of 45 months. This includes 21

            months on Count I, which is the lowest possible recommendation within the

            Guidelines range for an offense level 16,3 as well as the mandatory additional 24

            months on Count II.

           Supervised Release. 36 months of supervised release.

           Restitution and Forfeiture. An order of restitution and forfeiture equal to the money

            Smith received from the fraudulent unemployment claims and Paycheck Protection

            Program loans.4 The total amount of restitution and forfeiture is $269,465. For

            restitution, the amounts are broken down as follows: (1) $230,929 to the U.S.




Program was funded by the U.S. Small Business Administration and coordinated through
participating financial institutions.
       3
          The additional loss amount identified in the Supplemental Plea Agreement, ECF No. 29,
would increase Smith’s offense level by two points—to an offense level 18—because the loss
associated with Smith’s misconduct is now more than $250,000. See U.S. Sentencing
Guidelines § 2Bl.l(b)(l). Nevertheless, the government continues to recommend a sentence that
is consistent with the plea agreement (i.e., a low-end sentence for the Guidelines as originally
calculated by the parties).
       4
        See United States v. Bodouva, 853 F.3d 76, 78-79 (2d Cir. 2017) (“Because the statutory
schemes authorizing restitution and forfeiture are separate, district courts are bound not to reduce
the amount of a mandatory criminal forfeiture order by the amount of past or future restitution
payments, in the absence of specific statutory authorization to do so.”).
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           Case 1:22-cr-10045-RGS Document 32 Filed 11/05/22 Page 3 of 5




            Department of Labor, and (2) $38,536 to the U.S. Small Business Administration.

            See PSR p. 15 (identifying money owed to the U.S. Department of Labor);

            Supplemental Plea Agreement, Dkt. No. 29 (identifying money owed to the U.S.

            Small Business Administration).

       •    Special Assessments. $200 in mandatory special assessments.

       •    Fine. The government does not recommend a fine based on the applicable forfeiture

            and restitution in this case and because the government has not been able to ascertain

            Smith’s ability to pay any fine.

       The government’s recommended sentence is “sufficient, but not greater than necessary”

in light of the factors to be considered by the Court. 18 U.S.C. § 3553(a). In making this

recommendation, the government considered the breadth and length of the scheme. This was not

a one-day, one-time mistake. Smith committed this misconduct over a period of more than six

months. To make it work, Smith had to research and identify the vulnerabilities of twelve

distinct state unemployment programs as well as the federal Paycheck Protection Program and

the associated financial institutions that facilitated the program. Smith also had to obtain the

stolen personal information of 40 victims and create a series of dummy email accounts.

       In addition to Smith’s conduct, the government also considered the impact of these

offenses on the victims. The consequences of identity theft are well-documented:

       For victims, identity theft can cause far more damage than just loss of money or
       ruined credit. Victims of identity theft can be victims of multiple crimes and may
       be unable to fully define what happened to them and how it happened. Similar to
       victims of violent crime, identity theft victims can also suffer significant
       emotional and physical stress due to their victimization.

Identity Theft Special Feature, U.S. Dep’t of Justice’s Office of Justice Programs, available at

https://www.ojp.gov/feature/identity-theft/overview (last visited Nov. 5, 2022). Specifically


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         Case 1:22-cr-10045-RGS Document 32 Filed 11/05/22 Page 4 of 5




with respect to the unemployment claims Smith submitted in the names of victims, those often

create substantial administrative hurdles for victims who later seek unemployment assistance in

their own names because a claim is already assigned to their name and Social Security number.

Further, fraudulent unemployment claims often result in tax statements being issued to the

victims instructing them to pay taxes on the fraudulently-obtained payments.

       There must be both substantial punishment and adequate deterrence for such offenses,

which is provided through the government’s recommended sentence.




                                            Respectfully submitted,

                                            RACHAEL S. ROLLINS
                                            United States Attorney

                                     By:    /s/ Christopher J. Markham
                                            Christopher J. Markham
                                            Assistant United States Attorney




                                               4

         Case 1:22-cr-10045-RGS Document 32 Filed 11/05/22 Page 5 of 5




                                CERTIFICATE OF SERVICE


I hereby certify that this document filed through the ECF system will be sent electronically to the
registered participants as identified on the Notice of Electronic Filing (NEF) and U.S. Probation.



                                             /s/ Christopher J. Markham
                                             Christopher J. Markham
                                             Assistant United States Attorney




Date: November 5, 2022




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