Reply to Government's Response to Defendant's Restitution Request — United States v. Antonio D. Hosey (N.D. Ga.)

Record facts

U.S. District Court, Northern District of Georgia · No. 1:20-cr-00396-LMM · Doc. 29 · 2022-12-20 · Docket on CourtListener

Full text

1 
 
 
IN THE UNITED STATES DISTRICT COURT 
 
FOR THE NORTHERN DISTRICT OF GEORGIA 
 
ATLANTA DIVISION 
 
UNITED STATES OF AMERICA 
  
) 
  
) 
v. 
 
 
 
  
)     CRIMINAL ACTION 
  
)     NO. 1:20-CR-00396-LMM 
ANTONIO HOSEY 
 
) 
____________________________________) 
 
REPLY TO GOVERNMENT’S RESPONSE TO DEFENDANT’S 
RESTIUTION REQUEST 
 
 
COMES NOW, Defendant, Antonio Hosey, by and through undersigned 
counsel and files this reply to the government’s response to his request that the Court 
apportion restitution pursuant to 18 U.S.C. § 3664(h) and order him to pay $33,332.1 
 
First, the government attempts to call into question the amount that Mr. Hosey 
profited from the conspiracy by citing statements allegedly made by his co-
conspirator, Rodericque Thompson. (Doc. 28 at 2).  However, these statements were 
 
1 As a preliminary matter, the government’s assertion that Mr. Hosey’s restitution 
request was made for the first time at his sentencing hearing is misleading.  
Undersigned counsel first received proposed restitution figures from the 
government two days prior to Mr. Hosey’s sentencing hearing.  This was five days 
after Mr. Hosey’s sentencing memorandum had been filed and nearly two years 
after the submission of PSR objections by both parties.  Both the initial and final 
PSR disclosures listed restitution as “to be determined” and stated that the report 
would be updated “upon receiving the restitution amount and victims.” Within 
seven hours of receiving the proposed figures from the government, undersigned 
counsel responded via email explaining Mr. Hosey’s restitution request and the 
statutory authority supporting it.  His arguments were raised at the first available 
opportunity and were not a surprise to the government.     
Case 1:20-cr-00396-LMM     Document 29     Filed 12/20/22     Page 1 of 4

2 
 
not included in Mr. Hosey’s PSR and were not presented as evidence during his 
sentencing hearing.  Mr. Hosey’s statement that he made a total of $33,333.32 from 
the conspiracy was included in his PSR, was not objected to by the government, and 
was accepted by this Court as fact. (PSR at ⁋ 32).   
 
The government also argues that Mr. Hosey misinterprets the term 
“apportion.” (Doc. 28 at 5). However, it is the government’s interpretation of this 
term that is flawed.  The government asserts that the Court would be “apportioning” 
restitution by ordering Mr. Hosey to pay $463,779.79—the amount of the entire loss 
that was attributed to him. Id. However, that is the maximum restitution figure that 
the Court could order.  There is no support for the government’s assertion that the 
Court could order to Mr. Hosey to pay restitution for loss that was not reasonably 
foreseeable to him. The government’s reliance on United States v. Scott, 335 F. 
App’x 891, 894 (11th Cir. 2009) to support its assertion that the court could order 
Mr. Hosey to pay restitution in an amount higher than the loss amount attributable 
to him is inapposite.  Scott was ordered to pay to pay restitution that equaled the loss 
attributable to her. On appeal, she argued that the trial court should have apportioned 
restitution based on her relative culpability.  The court’s analysis in Scott supports 
Mr. Hosey’s interpretation of the word “apportion.”  Although it upheld the district 
court’s denial of Scott’s request to apportion restitution between her and her co-
defendant, the Eleventh Circuit took no issue with her interpretation of the word 
Case 1:20-cr-00396-LMM     Document 29     Filed 12/20/22     Page 2 of 4

3 
 
“apportion” which was identical to that of Mr. Hosey here.  Additionally, the 
Eleventh Circuit determined that the district court did not clearly err in determining 
that Scott stood to benefit equally with her co-defendant—a fact that supported the 
district court’s denial of her request to apportion restitution.   
 
Here, Mr. Hosey did not stand to benefit equally from the criminal conspiracy.  
The court need not determine the exact profit discrepancy between Mr. Hosey and 
his co-conspirators to determine that he stood to make substantially less than each 
of them.  Each business owner stood to make $150,000 per $300,000 loan.  They 
were aware of the total amount of each loan and agreed to submit fraudulent 
applications because of the substantial profit they stood to gain.  Alternatively, Mr. 
Hosey played utilitarian role in the scheme and had little control over the overall 
amount involved.  The relatively small amount that he was paid is evidence of his 
limited role and culpability in relation to the larger scheme and supports his request 
that the court apportion restitution.  
Conclusion 
For the foregoing reasons, Mr. Hosey asks that this Court exercise its 
discretion under 18 U.S.C. § 3664(h) to apportion restitution and order him to pay 
$33,332.  
 
 
Case 1:20-cr-00396-LMM     Document 29     Filed 12/20/22     Page 3 of 4

4 
 
 
Dated:  This 20th day of December, 2022. 
Respectfully submitted,  
 
 
 
 
 
 
/s/ Caitlyn Wade  
 
 
 
 
 
 
State Bar No. 259114 
Attorney for Mr. Hosey 
 
FEDERAL DEFENDER PROGRAM, INC. 
Suite 1500, Centennial Tower 
101 Marietta Street, N.W. 
Atlanta, Georgia 30303 
(404) 688-7530 
Caitlyn_Wade@fd.org 
 
Case 1:20-cr-00396-LMM     Document 29     Filed 12/20/22     Page 4 of 4

File and source

File

gov.uscourts.gand.282638.29.0.pdf

Size

164,745 bytes

SHA-256

805e285924890720219b5bb458aaceef24f505ec68e92c09100e7152430b4c3a

Our copy

gov.uscourts.gand.282638.29.0.pdf

Original

PACER (login required)