Response to Defendant’s Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2) — United States v. Kanyike (Dkt. 115, C.D. Cal.)

Summary

The government's response to defendant Hassan Kanyike's motion for sentence reduction under 18 U.S.C. § 3582(c)(2) (ECF No. 109), filed December 11, 2023 in United States v. Hassan Kanyike, No. CR 21-00081-VAP, in the U.S. District Court for the Central District of California. The response states that the motion relies on Amendment 821 to the U.S. Sentencing Guidelines, which creates Section 4C1.1, a two-level downward adjustment for certain offenders with zero criminal history points, and addresses whether a reduction applies. It is filed by Assistant United States Attorney Richard E. Robinson and the Fraud Section of the Department of Justice Criminal Division, with a certificate of service on the defendant executed December 11, 2023.

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Case 2:21-cr-00081-VAP Document 115 Filed 12/11/23 Page 1 of 7 Page ID #:1106



1    E. MARTIN ESTRADA
     United States Attorney
2    MACK E. JENKINS
     Assistant United States Attorney
3    Chief, Criminal Division
     RICHARD E. ROBINSON (Cal. Bar No. 90840)
4    Assistant United States Attorney
     Major Frauds Section
5         1100 United States Courthouse
          312 North Spring Street
6         Los Angeles, California 90012
          Telephone: (213) 894-0713
7         Facsimile: (213) 894-6269
          E-mail:     richard.robinson@usdoj.gov
8
     GLENN S. LEON
9    Chief, Fraud Section
     WILLIAM E. JOHNSTON (D.C. Bar No. 1030662)
10   Assistant Chief, Fraud Section
     Criminal Division
11   United States Department of Justice
          1400 New York Avenue, NW
12        Washington, DC 20005
          Phone: (202)514-0687
13        Email: william.johnston4@usdoj.gov
14   Attorneys for Plaintiff
     UNITED STATES OF AMERICA
15
                             UNITED STATES DISTRICT COURT
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                       FOR THE CENTRAL DISTRICT OF CALIFORNIA
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     UNITED STATES OF AMERICA,                No. CR 21-00081-VAP
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                Plaintiff,                    RESPONSE TO DEFENDANT’S MOTION FOR
19                                            SENTENCE REDUCTION PURSUANT TO 18
                      v.                      U.S.C. § 3582(c)(2).
20
     HASSAN KANYIKE,
21
                Defendant.
22

23         The United States of America, by and through undersigned counsel,
24   responds to defendant Hassan Kanyike’s Motion for Sentence Reduction
25   Pursuant to 18 U.S.C. § 3582(c)(2).        ECF No. 109.    Kanyike’s motion is
26   predicated on Amendment 821 to the U.S. Sentencing Guidelines (USSG),
27   which creates a new provision, Section 4C1.1, that gives a two-level
28   downward   adjustment    for   certain   offenders   who   have   zero   criminal

     Case 2:21-cr-00081-VAP Document 115 Filed 12/11/23 Page 2 of 7 Page ID #:1107



1    history points.         Because it concludes that the new provision applies

2    retroactively to the defendant, the government does not oppose the

3    defendant’s motion to the extent this Court reduces his sentence by no

4    more than 10 months, equivalent to the low end of the amended Guidelines

5    range, with an effective date of February 1, 2024.

6                                            BACKGROUND

7           On December 8, 2020, the defendant was arrested on a complaint

8    charging       him    with   defrauding     the   Small   Business     Administration’s

9    Paycheck Protection Program (PPP) and Economic Injury & Disaster Loan

10   (EIDL) program.         ECF No. 1 & 3.      The next day the defendant was ordered

11   detained pending trial.           ECF No. 6.

12          On March 29, 2021, the defendant pleaded guilty to a one-count

13   information charging him with wire fraud in violation of 18 U.S.C.

14   § 1343. ECF No. 42 & 51. As part of the statement of facts accompanying

15   his guilty plea, the defendant admitted to fraudulently obtaining

16   $1,002,550 in PPP funds and $300,000 in EIDL funds. ECF No. 44.

17          The PSR calculated his offense level as 24, corresponding to a

18   guidelines range of 51-63 months.                 ECF No. 64.        At the sentencing

19   hearing on November 15, 2021, this Court adopted the PSR’s offense

20   level calculation and imposed a sentence of 51 months.                    ECF No. 66 &

21   67.    The defendant is currently incarcerated at FCI Victorville; he

22   has no disciplinary record so far, and has an estimated release date

23   of December 8, 2024.         U.S. Bureau of Prisons, Inmate Locator, available

24   at https://www.bop.gov/inmateloc/ (last accessed Dec. 4, 2023).

25                                       LEGAL AUTHORITY

26          Pursuant to 18 U.S.C. § 3582(c)(2), this Court has the authority

27   to    reduce    the    sentence    of   a   defendant     “sentenced    to   a   term   of

28   imprisonment based on a sentencing range that has subsequently been

                                                 2

     Case 2:21-cr-00081-VAP Document 115 Filed 12/11/23 Page 3 of 7 Page ID #:1108



1    lowered by the Sentencing Commission . . . after considering the factors

2    set forth in section 3553(a) . . . if such a reduction is consistent

3    with applicable policy statements issued by the Sentencing Commission.”

4          In determining whether to lower a sentence, the applicable policy

5    statement directs this Court to “determine the amended guideline range

6    that would have been applicable to the defendant if the amendment(s)

7    to the guidelines listed in subsection (d) had been in effect at the

8    time the defendant was sentenced.”           U.S.S.G. § 1B1.10 (Nov. 1, 2023).

9          Amendment 821 to the USSG, creating § 4C1.1 and effective starting

10   on November 1, 2023, provides for a two-level reduction for certain

11   offenders    who   have    zero   criminal    history     points.     Among    other

12   disqualifications,        the   reduction    is   not   available   to    those   who

13   “personally cause[d] substantial financial hardship” or received a

14   leadership enhancement under § 3B1.1.             U.S.S.G. § 4C1.1.        While the

15   Sentencing Commission has made the amendment retroactively applicable,

16   any order granting a sentence reduction must be effective on February

17   1, 2024.    U.S.S.G. § 1B1.10(d) & (e)(2).

18         The maximum by which this Court should reduce any sentence due to

19   Amendment 821 is determined by the “the minimum of the amended guideline

20   range.”     Id. § 1B1.10(b)(2)(A).

21                                          ARGUMENT

22         The   defendant     would   be   eligible   for   the   zero-point    offender

23   reduction if he were sentenced today.              According to the defendant’s

24   PSR, he had zero criminal history points.               ECF No. 64.      None of the

25   carveouts in Amendment 821 that would otherwise make a zero-point

26   offender ineligible for the reduction, such as leadership role or

27   substantial financial hardship, apply to the defendant.               Accordingly,

28   the reduction is retroactively applicable to the defendant.

                                             3

     Case 2:21-cr-00081-VAP Document 115 Filed 12/11/23 Page 4 of 7 Page ID #:1109



1          The two level reduction to the offense level this Court adopted

2    at sentencing would yield an amended offense level of 22, corresponding

3    to a guidelines range of 41-51 months.              Accordingly, the maximum

4    reduction that the defendant is eligible for is 10-month reduction from

5    51 months to 41 months.     See U.S.S.G. § 1B1.10(b)(2)(A).       The effective

6    date for this reduction may not be before February 1, 2024.             U.S.S.G.

7    § 1B1.10(d) & (e)(2).

8          The factors set forth in 18 U.S.C. § 3553(a) do not weigh against

9    a 10-month reduction in the defendant’s sentence.          While the defendant

10   deliberately stole more than $1 million from the SBA, the defendant’s

11   criminal conduct is no more severe than the typical PPP fraudster who

12   exploited an emergency benefit program for his own personal gain; such

13   offenders would be entitled to the zero-point offender reduction.               His

14   personal characteristics also do not militate against a reduction: he

15   has incurred no disciplinary record while incarcerated.            Accordingly,

16   the defendant should receive the benefit of Amendment 821.

17   //

18   //

19   //

20   //

21   //

22   //

23   //

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25

26                                      CONCLUSION

27         For the foregoing reasons, the government does not oppose a 10

28   month reduction in the defendant’s sentence so long as it has an

                                           4

     Case 2:21-cr-00081-VAP Document 115 Filed 12/11/23 Page 5 of 7 Page ID #:1110



1    effective date of February 1, 2024.

2     Dated: December 7, 2023              Respectfully submitted,

3                                          E. MARTIN ESTRADA
                                           United States Attorney
4
                                           MACK E. JENKINS
5                                          Assistant United States Attorney
                                           Chief, Criminal Division
6
                                            /s/
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                                           RICHARD E. ROBINSON
8                                          Assistant United States Attorney

9
                                           GLENN S. LEON
10                                         Chief, Fraud Section
                                           Criminal Division
11                                         U.S. Department of Justice

12                                         /s/
13                                         WILLIAM E. JOHNSTON
                                           Assistant Chief
14

15                                         Attorneys for Applicant
                                           UNITED STATES OF AMERICA
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     Case 2:21-cr-00081-VAP Document 115 Filed 12/11/23 Page 6 of 7 Page ID #:1111



 1                              CERTIFICATE OF SERVICE

 2

 3         I, ALLISON FREITAS, declare:

 4         That I am a citizen of the United States and a resident of or

 5   employed in Los Angeles County, California; that my business address

 6   is the Office of United States Attorney, 312 North Spring Street,

 7   Los Angeles, California 90012; that I am over the age of 18; and

 8   that I am not a party to the above-titled action;

 9         That I am employed by the United States Attorney for the

10   Central District of California, who is a member of the Bar of the

11   United States District Court for the Central District of California,

12   at whose direction I served a copy of:

13   RESPONSE TO DEFENDANT’S MOTION FOR SENTENCE REDUCTION PURSUANT TO 18

14   U.S.C. § 3582(c)(2).

15

16   service was:

17

18     ☐ Placed in a closed envelope          ☒ Placed in a sealed envelope
         for collection and inter-              for collection and mailing
19       office delivery, addressed as          via United States mail,
         follows:                               addressed as follows:
20
       ☐ By hand delivery, addressed          ☐ By facsimile, as follows:
21       as follows:

22     ☐ By messenger, as follows:            ☐ By Federal Express, as
                                                follows:
23     ☐ By E-mail, as follows:

24
           Hassan Kanyike
25
           REG. NO. 21355-509
26
           FCI VICTORVILLE - MEDIUM I
27
           PO BOX 3725
28

     Case 2:21-cr-00081-VAP Document 115 Filed 12/11/23 Page 7 of 7 Page ID #:1112



 1         ADELANTO, CA 92301

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           This Certificate is executed on December 11, 2023, at Los
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     Angeles, California.      I certify under penalty of perjury that the
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     foregoing is true and correct.
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                                              /s/ Allison Freitas
 7                                            ALLISON FREITAS
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