Government's Response in Opposition to Defendant's Objections to the Presentence Investigation Report — United States v. Gregory Scott Keough

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Case 9:23-cr-80154-DMM Document 58 Entered on FLSD Docket 02/07/2024 Page 1 of 5




                             UNITED STATES DISTRICT COURT
                             SOUTHERN DISTRICT OF FLORIDA

                                  CASE NO. 23-CR-80154-DMM

  UNITED STATES OF AMERICA

  vs.

  GREGORY SCOTT KEOUGH,

              Defendant.              /

       GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT’S OBJECTIONS
                TO THE PRESENTENCE INVESTIGATION REPORT

          The United States, by and through the undersigned Assistant United States Attorney,

  hereby files its response in opposition to defendant Gregory Scott Keough’s (the “Defendant” or

  “Keough”) objection to the Presentence Investigation Report (“PSR”). seeking to strike certain

  portions of the PSR (DE 34). The Government submits, Defense’s argument that Probation’s

  reference to the “NFH Bankruptcy,” which Keough claims “has no relevancy to the charges” and

  thus, should be stricken, is meritless. (DE 51). The information the Defendant seeks to strike goes

  to the “background and character” of the Defendant, is not prohibited, and may be included in the

  PSR which can be considered by the Court, pursuant to 18 U.S.C. §§ 3553 and 3661. The

  Government states as follows:

  I.      BACKGROUND

          On August 24. 2023, a federal grand jury in the Southern District of Florida returned an

  Indictment, which charged the Defendant with one count of conspiracy to commit wire fraud, in

  violation of Title 18, United States Code, Section 1349 (Count 1), six counts of wire fraud, in in

  violation of Title 18, United States Code, Section 1343 (Counts 2-7), and four counts of engaging

  in monetary transactions in criminally derived property, in violation of in violation of Title 18,

  United States Code, Section 1957 (Counts 8-11) (DE 17). Without the benefit of a written plea


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  agreement, on November 13, 2023, the Defendant entered an open plea to Counts 4-5 and 8 of the

  charged Indictment (DE 43). The Defendant’s sentencing hearing is scheduled for February 8,

  2024 (DE 44).

  II.    ANALYSIS

         A. Keough’s Request to Strike Probation’s recitation outlined in the Other Conduct
            Section of the PSR should be Denied

         In anticipation of sentencing, Keough objects to and seeks to strike paragraph 34 of the

  PSR. The Defendant makes no claim as to any inaccuracies in paragraph 34 of the PSR, but only

  makes a conclusory statement that the reference to the National Financial Holdings Inc.’s

  bankruptcy proceeding is irrelevant to the charges. The government submits that the PSR’s

  reference to the National Financial Holding Inc bankruptcy proceeding is relevant as it involves

  the same entity named in the charged Indictment. Further, although the bankruptcy proceeding is

  pending, the filed complaint contemplates misrepresentations made by the officers of National

  Financial Holding Inc.

         Defense make no challenge to the facts in paragraph 34, however, even where a factual

  challenge is made, it must be made with “specificity and clarity.” United States v. Funez, 755 F.

  Appx 871, 873 (11th Cir. 2018) (citation omitted). Even “[v]ague assertions of inaccuracies are

  not sufficient to raise a factual dispute.” Id. (quoting United States v. Aleman, 832 F.2d 142, 145

  (11th Cir. 1987)). If a defendant fails to properly object, the objection is waived, and the burden

  does not shift to the Government to prove the disputed facts. Id. Relevant conduct always

  includes acts the Defendant counseled, commanded, induced, procured, or willfully caused.

  U.S.S.G. § 1B1.4 states that “[i]n determining the sentence to impose within the guideline range,

  or whether a departure from the guidelines is warranted, the court may consider, without limitation,

  any information concerning the background, character and conduct of the defendant, unless



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  otherwise prohibited by law.” U.S.S.G. § 1B1.4 (emphasis added); see also United States v. Sikes,

  824 Fed. Appx. 805, 809-10 (11th Cir. 2020); 18 U.S.C. § 3661.1 The Commentary Application

  Notes to 1B1.4 state the following:

                    A court is not precluded from considering information that the
                    guidelines do not take into account in determining a sentence within
                    the guideline range or from considering that information in
                    determining whether and to what extent to depart from the
                    guidelines.

           In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court explained that

  a sentencing court may rely on uncharged and acquitted conduct that has been proven by a

  preponderance of the evidence, noting that the consideration of such conduct is consistent with the

  Double Jeopardy and Due Process Clauses. See id. at 151-57. Later, in United States v. Belfast,

  611 F.3d 783 (11th Cir. 2010), the Eleventh Circuit held that there was no constitutional violation

  where the district court sentenced the defendant based on uncharged conduct because the

  defendant’s ultimate sentence was below the applicable statutory maximum sentence. Id. at 800-

  01, 827-28. In this case, the information described in the Other Conduct Section of the PSR, to

  which the Defendant objects, does not alter the applicable advisory guideline range as the

  Government is not seeking an upward variance, nor is it prejudicial to the Defendant given the

  Defendant’s criminal history. The information goes to the “background and character” of the

  Defendant, which can be considered by the Court. 18 U.S.C. §§ 3553 and 3661.

           Federal Rule of Criminal Procedure 32, which provides for post-conviction procedures,

  does not compel exclusion of the PSR paragraphs and does not require a court to strike

  controverted material not considered in sentencing. The contents and substance of a PSR is



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   Title 18, United States Code, Section 3661 states the following: “No limitation shall be placed on the information
  concerning the background, character, and conduct of a person convicted of an offense which a court of the United
  States may receive and consider for the purpose of imposing an appropriate sentence.” 18 USC § 3661.


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  confidential. Only with a court order may a PSR be seen by anyone except the court, counsel, or

  defendant. See United States v. Bartlett, 416 F. Appx 508, 510 (6th Cir. 2011) (finding no violation

  of Rule 32 where the district court refused to strike sexual-abuse allegations and instead indicated

  it did not resolve their truth).

          In addition, a court’s compliance with Rule 32 sufficiently alleviates any concern that

  others will rely on the unproven allegations. Rule 32(d)(3) excludes from a PSR, which may be

  relevant here, “(A) any diagnoses that, if disclosed, might seriously disrupt a rehabilitation

  program; and (C) any other information that, if disclosed, might result in physical or other harm

  to the defendant or others.” FRCP Rule 32(d)(3); See United States v. Hopkins, 824 F.3d 726, 735

  (8th Cir. 2016) (holding concerns that prison officials will rely on unfounded, detrimental PSR

  information are “met by a district court's compliance with Rule [32(i)(3)(B)]”).

          WHEREFORE, for the foregoing reasons, the Government respectfully opposes the

  Defendant’s objection to paragraph 34 of the PSR.

                                                Respectfully submitted,

                                                MARKENZY LAPOINTE
                                                UNITED STATES ATTORNEY

                                        By:     /s/ Robin W. Waugh
                                                ROBIN W. WAUGH
                                                Assistant United States Attorney
                                                Florida Bar No. 0537837
                                                500 S. Australian Avenue
                                                West Palm Beach, Florida 33401
                                                Tel: (561) 820-8711
                                                Robin.waugh@usdoj.gov




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                               CERTIFICATE OF SERVICE

        I HEREBY CERTIFY that on February 7, 2024, I electronically filed the foregoing

  document with the Clerk of the Court using CM/ECF.

                                     By:   /s/ Robin W. Waugh
                                           ROBIN W. WAUGH
                                           ASSISTANT UNITED STATES ATORNEY




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