Plea Agreement — United States v. Barata (Dkt. 30, S.D. Fla.)

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A plea agreement in United States v. Erich Javier Alfonso Barata, Case No. 22-20487-CR-BB, in the U.S. District Court for the Southern District of Florida, entered on the docket January 18, 2023 as Document 30. The defendant agrees to plead guilty to the sole count of the Information, which charges Conspiracy to Commit Wire Fraud under 18 U.S.C. § 1349. The agreement states that the court will impose sentence after computing an advisory range under the Sentencing Guidelines. It is signed by the defendant, defense counsel Alejandro Sola and an Assistant U.S. Attorney for U.S. Attorney Markenzy Lapointe.

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Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 1 of 10

                          UNITED STATES DISTRICT COURT
                          SOUTHERN DISTRICT OF FLORIDA

                               CASE NO. 22-20487-CR-BB

UNITED STATES OF AMERICA

vs.

ERICH JAVIER ALFONSO BARATA,

                             Defendant.
                                         /

                                   PLEA AGREEMENT

       The United States Attorney’s Office for the Southern District of Florida (“this Office”) and

Erich Javier Alfonso Barata (hereinafter referred to as the “defendant”) enter into the following

agreement:

       1.     The defendant agrees to plead guilty to the sole count of the Information, which

charges the defendant with Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349.

       2.     The defendant is aware that the sentence will be imposed by the Court after

considering the advisory Federal Sentencing Guidelines and Policy Statements (hereinafter

“Sentencing Guidelines” of “U.S.S.G.”). The defendant acknowledges and understands that the

Court will compute an advisory sentence under the Sentencing Guidelines and that the applicable

guidelines will be determined by the Court relying in part on the results of a pre-sentence

investigation by the Court’s probation office, which investigation will commence after the guilty

plea has been entered. The defendant is also aware that, under certain circumstances, the Court

may depart from the advisory sentencing guideline range that it has computed, and may raise or

lower that advisory sentence under the Sentencing Guidelines. The defendant is further aware

and understands that the Court is required to consider the advisory guideline range determined

Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 2 of 10

under the Sentencing Guidelines, but is not bound to impose a sentence within that advisory range;
the Court is permitted to tailor the ultimate sentence in light of other statutory concerns, and such
sentence may be either more severe or less severe than the Sentencing Guidelines’ advisory range.
Knowing these facts, the defendant understands and acknowledges that the Court has the authority
to impose any sentence within and up to the statutory maximum authorized by law for the offense
identified in paragraph one (1) and that the defendant may not withdraw the plea solely as a result
of the sentence imposed.

3. The defendant also understands and acknowledges that the Court may impose a
statutory maximum term of imprisonment of up to twenty (20) years. The Court may impose a
statutory maximum term of supervised release of up to three (3) years. In addition, the Court may
impose a fine of up to $250,000.

4, The defendant further understands and acknowledges that, in addition to any
sentence imposed under paragraph three (3) of this agreement, a special assessment in the amount
of $100 will be imposed on the defendant. The defendant agrees that any special assessment
imposed shall be paid at the time of sentencing. Ifthe defendant is financially unable to pay the
special assessment, the defendant agrees to present evidence to this Office and the Court at the
time of sentencing as to the reasons for the defendant’s failure to pay.

5. This Office reserves the right to inform the Court and the probation office of all
facts pertinent to the sentencing process, including all relevant information concerning the offenses
committed, whether charged or not, as well as concerning the defendant and the defendant’s
background. Subject only to the express terms of any agreed-upon sentencing recommendations
contained in this agreement, this Office further reserves the right to make any recommendation as

to the quality and quantity of punishment.

Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 3 of 10

6. This Office agrees that it will recommend at sentencing that the Court reduce by
two (2) levels the sentencing guideline level applicable to the defendant’s offense, pursuant to
§ 3E1.1(a) of the Sentencing Guidelines, based upon the defendant’s recognition and affirmative
and timely acceptance of personal responsibility. If at the time of sentencing the defendant’s
offense level is determined to be sixteen (16) or greater, this Office will file a motion requesting
an additional one (1) level decrease pursuant to § 3E1.1(b) of the Sentencing Guidelines, stating
that the defendant has assisted authorities in the investigation or prosecution of the defendant’s
own misconduct by timely notifying authorities of the defendant’s intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for trial and permitting the
government and the Court to allocate their resources efficiently. This Office, however, will not
be required to make this motion if the defendant: (1) fails or refuses to make a full, accurate and
complete disclosure to the probation office of the circumstances surrounding the relevant offense
conduct; (2) is found to have misrepresented facts to the government prior to entering into this plea
agreement; or (3) commits any misconduct after entering into this plea agreement, including but
not limited to committing a state or federal offense, violating any term of release, or making false
statements or misrepresentations to any governmental entity or official.

7. The defendant agrees that he shall cooperate fully with this Office by: (a) providing
truthful and complete information and testimony, and producing documents, records and other
evidence, when called upon by this Office, whether in interviews, before a grand jury, or at any
trial or other Court proceeding; (b) appearing at such grand jury proceedings, hearings, trials, and
other judicial proceedings, and at meetings, as may be required by this Office; and (c) if requested
by this Office, working in an undercover role under the supervision of, and in compliance with,

law enforcement officers and agents. In addition, the defendant agrees that he will not protect

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Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 4 of 10

any person or entity through false information or omission, that he will not falsely implicate any
person or entity, and that he that he will not commit any further crimes.

8. This Office reserves the right to evaluate the nature and extent of the defendant’s
cooperation and to make that cooperation, or lack thereof, known to the Court at the time of
sentencing. Ifin the sole and unreviewable judgment of this Office the defendant’s cooperation
is of such quality and significance to the investigation or prosecution of other criminal matters as
to warrant the Court’s downward departure from the advisory sentencing range calculated under
the Sentencing Guidelines and/or any applicable minimum mandatory sentence, this Office may
make a motion prior to sentencing pursuant to § 5K1.1 of the Sentencing Guidelines and/or 18
U.S.C. § 3553(e), or subsequent to sentencing pursuant to Rule 35 of the Federal Rules of Criminal
Procedure, informing the Court that the defendant has provided substantial assistance and
recommending that the defendant’s sentence be reduced. The defendant understands and agrees,
however, that nothing in this agreement requires this Office to file any such motions, and that this
Office’s assessment of the quality and significance of the defendant’s cooperation shall be binding
as it relates to the appropriateness of this Office’s filing or non-filing of a motion to reduce
sentence.

9. The defendant understands and acknowledges that the Court is under no obligation
to grant a motion for reduction of sentence filed by this Office. In addition, the defendant further
understands and acknowledges that the Court is under no obligation of any type to reduce the
defendant’s sentence because of the defendant’s cooperation.

10. This Office and the defendant agree that, although not binding on the probation
office or the Court, they will jointly recommend that the Court make the following findings and

conclusions as to the sentence to be imposed:

Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 5 of 10

a. Base Offense: Pursuant to U.S.S.G. §§ 2B1.1(a)(1), 2X1.1(a), the base offense
level is 7.

b. Specific Offense Characteristics:

i. Pursuant to U.S.S.G. § 2B1.1(b)(1)(J), the offense level shall be increased
by 18 levels because the relevant amount of actual, probable, or intended
loss resulting from the offense committed in this case is more than
$3,500,000 but less than or equal to $9,500,000.

ii. Pursuant to U.S.S.G. § 2B1.1(b)(10)(C), the offense level shall be increased
by 2 levels because the offense involved sophisticated means and the
defendant intentionally engaged in or caused the conduct constituting
sophisticated means.

c. Adjustments: Pursuant to U.S.S.G. § 3B1.1(c), the offense level shall be increased
by 2 levels because the defendant was an organizer, leader, manager, or supervisor.

d. Total Offense Level: The total offense level is 29 less any adjustment for

acceptance of responsibility.

11. The defendant is aware that the sentence has not yet been determined by the Court.
The defendant also is aware that any estimate of the probable sentencing range or sentence that the
defendant may receive, whether that estimate comes from the defendant’s attorney, this Office, or
the probation office, is a prediction, not a promise, and is not binding on this Office, the probation
office, or the Court. The defendant understands further that any recommendation that this Office
makes to the Court as to sentencing, whether pursuant to this agreement or otherwise, is not binding
on the Court and the Court may disregard the recommendation in its entirety. The defendant

understands and acknowledges, as previously acknowledged in paragraph two (2) above, that the

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Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 6 of 10

defendant may not withdraw his plea based upon the Court’s decision not to accept a sentencing
recommendation made by the defendant, this Office, or a recommendation made jointly by the
defendant and this Office.

12. The defendant agrees to pay restitution in an amount up to $ 8,622,213.38, pursuant
to 18 U.S.C. § 3663A. Restitution shall be joint and several with co-conspirators, where applicable

13. The defendant agrees, in an individual and any other capacity, to forfeit to the
United States voluntarily and immediately, any right, title, and interest to any property, real or
personal, which constitutes or is derived from proceeds obtained directly or indirectly, as a result
of the commission of the offense, in violation of 18 U.S.C. § 1349, pursuant to 18 U.S.C. §
982(a)(2)(A). In addition, the defendant agrees to forfeiture of substitute property pursuant to 21
U.S.C. § 853(p). The property subject to forfeiture includes, but is not limited to:

a. a forfeiture money judgment in the sum of $ 1,036,753.82 in United States
currency, which sum represents the value of any property constituting or
derived from proceeds the defendant obtained as the result of the commission
of the offense.

14. The defendant further agrees that forfeiture is independent of any assessment, fine,
cost, restitution, or penalty that may be imposed by the Court. The defendant knowingly and
voluntarily agrees to waive all constitutional, legal, and equitable defenses to the forfeiture,
including excessive fines under the Eighth Amendment to the United States Constitution. In
addition, the defendant agrees to waive: any applicable time limits for administrative or judicial
forfeiture proceedings, the requirements of Fed. R. Crim. P. 32.2 and 43(a), and any appeal of the
forfeiture.

15. | The defendant also agrees to fully and truthfully disclose the existence, nature and

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Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 7 of 10

location of all assets in which the defendant has or had any direct or indirect financial interest or
control, and any assets involved in the offense of conviction. The defendant also agrees to take
all steps requested by the United States for the recovery and forfeiture of all assets identified by
the United States as subject to forfeiture. This includes, but is not limited to, the timely delivery
upon request of all necessary and appropriate documentation to deliver good and marketable title,
consenting to all orders of forfeiture, and not contesting or impeding in any way with any criminal,
civil or administrative forfeiture proceeding concerning the forfeiture.
16. In furtherance of the satisfaction of a forfeiture money judgment entered by the
Court in this case, the defendant agrees to the following:
a. submit a financial statement to the Office upon request, within 14
calendar days from the request;
b. maintain any asset valued in excess of $10,000, and not sell, hide,
waste, encumber, destroy, or otherwise devalue such asset without
prior approval of the United States;
c. provide information about any transfer of an asset valued in excess
of $10,000 since the commencement of the offense conduct in this
case to date;
d. cooperate fully in the investigation and the identification of assets,
including liquidating assets, meeting with representatives of the
United States, and providing any documentation requested; and
e. notify, within 30 days, the Clerk of the Court for the Southern

District of Florida and the Office of: (i) any change of name,

Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 8 of 10

residence, or mailing address, and (ii) any material change in
economic circumstances.

17. The defendant further understands that providing false or incomplete information
about assets, concealing assets, making materially false statements or representations, or making
or using false writings or documents pertaining to assets, taking any action that would impede the
forfeiture of assets, or failing to cooperate fully in the investigation and identification of assets
may be used as a basis for: (i) separate prosecution, including, under 18 U.S.C. § 1001; or (ii)
recommendation of a denial of a reduction for acceptance of responsibility pursuant to the
Sentencing Guidelines § 3E1.1.

18. The defendant is aware that Title 28, United States Code, Section 1291 and Title
18, United States Code, Section 3742 afford the defendant the right to appeal the sentence imposed
in this case. Acknowledging this, in exchange for the undertakings made by the United States in
this plea agreement, the defendant hereby waives all rights conferred by Sections 1291 and 3742
to appeal any sentence imposed, including any restitution order, or to appeal the manner in which
the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the
result of an upward departure and/or an upward variance from the advisory guideline range that
the Court establishes at sentencing. The defendant further understands that nothing in this
agreement shall affect the government’s right and/or duty to appeal as set forth in 18 U.S.C. §
3742(b) and 28 U.S.C. § 1291. However, if the United States appeals the defendant’s sentence
pursuant to §§ 3742(b) and 1291, the defendant shall be released from the above waiver of his
right to appeal his sentence.

19. The defendant further hereby waives all rights conferred by 28 U.S.C. § 1291 to
assert any claim that (1) the statute(s) to which the defendant is pleading guilty is/are

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Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 9 of 10

unconstitutional; and/or (2) the admitted conduct does not fall within the scope of the statute(s) of
conviction.

20. By signing this agreement, the defendant acknowledges that the defendant has
discussed the appeal waiver set forth in this agreement with the defendant’s attorney. The
defendant further agrees, together with this Office, to request that the Court enter a specific finding
that the defendant’s waiver of his right to appeal the sentence imposed in this case and his right to
appeal his conviction in the manner described above was knowing and voluntary.

21. The defendant recognizes that pleading guilty may have consequences with respect
to the defendant’s immigration status if the defendant is not a citizen of the United States. Under
federal law, a broad range of crimes are removable offenses. Removal and other immigration
consequences are the subject of a separate proceeding, however, and defendant understands that
no one, including the defendant’s attorney or the Court, can predict to a certainty the effect of the
defendant’s conviction on the defendant’s immigration status. The defendant nevertheless
affirms that the defendant wants to plead guilty regardless of any immigration consequences that
the defendant’s plea may entail, even if the consequence is the defendant’s automatic removal

from the United States.

Case 1:22-cr-20487-BB Document 30 Entered on FLSD Docket 01/18/2023 Page 10 of 10

22. This is the entire agreement and understanding between this Office and the

defendant. There are no other agreements, promises, representations, or understandings.

Date: \ \ \S Los

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MARKENZY LAPOINTE
UNITED STATES ATTORNEY

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ELIS. RUBIN
ASSISTANT UINIKED STATES ATTORNEY

ALEJANDRO SOLA
COUNSEL FOR DEFENDANT

ERICH JAVIER ALFONSO BARATA
DEFENDANT

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