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Sentencing Memorandum and Incorporated Motion for Downward Variance Below the Low End of the Applicable Guideline Range — United States v. Philus (Dkt. 51, S.D. Fla.)

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A defense sentencing memorandum and incorporated motion for downward variance for Johnny Philus in United States v. Philus, Case No. 21-cr-20067-MGC-2, in the U.S. District Court for the Southern District of Florida, entered on the docket May 26, 2021 as Document 51 and signed by attorneys Jeffrey S. Weiner, Annabelle Nahra Nadler, Diego Weiner and Yisel Villar. It asks for a sentence below the guideline range under 18 U.S.C. §3553(a): twelve (12) months and one day of incarceration, then twelve (12) months of house arrest and three years of supervised release. The memorandum states that the case arises from Philus's involvement in conspiring with others to apply for PPP and EIDL loans, notes that co-defendant Latoya Stanley is his partner, and describes how a cousin offered to help him apply for a PPP loan.

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Filed May 26, 2021 in Johnny Philus; one of 1 filings from this case.

Record facts

Court	U.S. District Court for the Southern District of Florida
Filed	2021-05-26

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“Sentencing Memorandum and Incorporated Motion for Downward Variance Below the Low End of the Applicable Guideline Range — United States v. Philus (Dkt. 51, S.D. Fla.).” U.S. District Court for the Southern District of Florida, No. 1:21-cr-20067, Doc. 51, filed 2021-05-26. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-johnny-philus/2021-05-26-sentencing-memorandum-and-incorporated-motion-for-downward-v-dkt-51/, SHA-256 8dcc0c55651efb490d72e963157a55b3363d47e78adfed8e4efe79c3a72a1eec.

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Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA, §

Plaintiff, § CASE NO. 21-cr-20067-MGC-2

vs. §

JOHNNY PHILUS, §

Defendant. §
/

SENTENCING MEMORANDUM AND INCORPORATED MOTION FOR
DOWNWARD VARIANCE BELOW THE LOW END OF THE APPLICABLE
GUIDELINE RANGE

COMES NOW the Defendant, JOHNNY PHILUS, by and through his undersigned
counsel, and respectfully submits this sentencing memorandum in support of
his request for a sentence below the applicable guideline range that is “sufficient,
but not greater than necessary, to comply with the purposes set forth” in 18
U.S.C. §3553(a). Undersigned counsel recommends that this court sentence the
Defendant to twelve (12) months and one day of incarceration followed by twelve
(12) months of house arrest, followed by three years of supervised release.

I. INTRODUCTION

Johnny Philus is a 34 year-old stepfather of three children: Ken-Neil Rolle,
age 21; Jayvyn Exulien, age 14 and Jordyn Exulien, age 13. Mr. Philus and Latoya
Stanley have been in a loving and committed relationship for the past ten years.
Ms. Stanley is self-employed making and repairing wigs. Ms. Stanley is Mr.
Philus’s co-defendant in the case at Bar.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 2 of 21

United States of America v. Johnny Philus
Case No. 21-cr-20067-MGC-2
Sentencing Memorandum and Incorporated Motion for Downward Variance Below the Low End
of the Applicable Guideline Range
Page 2 of 21

Johnny Philus was born in White Plains, New York and resided there until
he was four years old when his family moved to Miami, Florida. He attended North
Miami High School and received his high school diploma from Bay Point School
where Johnny was sentenced as part of a Juvenile case. While at high school, he
was a member of the band, and he was on the varsity football team. He went to
church weekly with his family.

Mr. Philus was fortunate to grow up in a loving family, but his family could
not protect him from the dangers and crime he was exposed to in his North Miami
neighborhood.

a. Mr. Philus’s Upbringing in North Miami

The current crime statistics for North Miami are frightening, and they were
even worse when Johnny was growing up there.

With a crime rate of forty-seven (47) per one thousand (1000) residents, North
Miami has one of the highest crime rates in America compared to all communities
of all sizes - from the smallest towns to the very largest cities.1 Within Florida,
more than 93% of the communities have a lower crime rate than North Miami.
The chances of becoming a victim of either violent or property crime there is one
in twenty-one. Violent offenses tracked included rape, murder and non-
negligent manslaughter, armed robbery, and aggravated assault, including
assault with a deadly weapon.

1Neighborhood Scout, https://www.neighborhoodscout.com/fl/north-miami/crime#:~:text=
With%20a%20crime%20rate%20of,here%20is%20one%20in%2021, May 23, 2021

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 3 of 21

When he was a young child, Mr. Philus saw violence, illegal gang activity,
people getting arrested and chased by the police, and the sale of narcotics daily.
He also witnessed people being threatened with beatings, stabbings, and
shootings, and being physically assaulted. He was the victim of numerous
beatings and a shooting when another youth tried to rob him. During the robbery,
Johnny was shot in the back three times while he, as the victim, was running
away. A number of his peers were the aggressors or victims of community
violence—including drug use, beatings, shootings, stabbings, and break-ins,
within his neighborhood and school.

Researchers have known from decades of research and study that exposure
to this type of community violence can lead to emotional, social, and cognitive
problems. Children exposed to a violent environment are often more aggressive
and more involved in antisocial behavior than children who are not.2 Many
psychiatrists and other experts believe that crime, particularly among
adolescents, can be “contagious,” meaning that living in more violent
neighborhoods and communities can cause a vicious cycle of high crime rates.
A research team at Temple University found that youth are much more likely to
commit crimes if they live in high-crime neighborhoods and have greater
chances of reoffending if there is a high recidivism rate in their communities.3

Johnny was constantly surrounded by friends, school mates and neighbors
who engaged in violence and criminal activity on a day-to-day basis and many
argue that “the evidence is clear: aggression and violence among friends can be

2 Springer Link, Dario Bacchini, Growing Up in Violent Contexts: Differential Effects of

Community, Family, and School Violence on Child Adjustment, 20 October 2019.
3 The Coaction Of Neighborhood and Individual Effects on Juvenile recidivism, Temple

University, published in Cityscape: A Journal of Policy Development and Research, Volume
13, Number 3, 2011, U.S. Department of Housing and Urban Development, Officer of Policy
Development and Research.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 4 of 21

contagious.”4 Johnny tried to avoid these negative influences; he attended
after-school activities, played sports, and participated in the school band to
keep him away from the streets. He even took a job selling candy in other
neighborhoods to make some pocket money. Unfortunately, the desire to be
accepted by his friends, the lack of parental supervision, and the pressure of
struggling financially led him to commit crimes that he now regrets. Of course,
his upbringing is no excuse for his commission of the crime that brings him
before Your Honor.

b. Mr. Philus’s Home Life

Johnny’s home life was also challenging, and he was often left to fend for
himself. His father worked two jobs, one as a cook the other as a landscaper. His
mother worked full-time as a housekeeper at a hotel. Johnny usually made his
own meals with his siblings and was entrusted to do his homework alone without
any help or guidance.

Johnny lived in a small home with six other family members. They had enough
money to put food on the table, but there was never anything left over. His
parents constantly worried over bills and did the best they could to support their
children. Living in a violent neighborhood and a disadvantaged home left Johnny
feeling stressed and depressed from a young age. He turned to marijuana to help
him cope and continued to use marijuana daily for the next fifteen years.

c. Mr. Philus’s High School Experience

For many children growing up in a dangerous and violent neighborhood, their
school becomes a refuge. However, for Johnny, his experience at North Miami

4 MST Services, How Communities Impact Juvenile Crime, August 18, 2018

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 5 of 21

High School was just an extension of his life on the street. Many of his classmates
came to school with weapons and drugs. Fights would break out regularly and
security officers would step in to control them. Several female students were
pregnant at the school including at least one student who was impregnated by a
security officer at the school.

North Miami Senior High School placed in the bottom 50% of all schools in
Florida for overall test scores for the 2017-2018 school year.5 (Undersigned
counsel was unable to find the records for the time Mr. Philus attended the
school), the student-teacher ratio of 20:1 is considerably higher than the Florida
state level of 16:1. Minority enrollment is 98% of the student body (majority
Black), which is higher than the Florida state average of 62%. Approximately 82%
of students are “economically disadvantaged”.

Statistics like those support our contention that Mr. Philus had the deck
stacked against him when entering this world. Growing up in a dangerous
neighborhood, attending an underperforming school, living in a low-income
home with little to no supervision provided Mr. Philus with major challenges to
overcome. Undersigned counsel acknowledges that many other people in this
country live in those circumstances and do not go on to commit crimes. Mr.
Philus’s background gives some insight into his criminal conduct and is not an
excuse.
II. FACTS SURROUNDING THE INSTANT OFFENSE

On March 8, 2021, Mr. Philus entered a plea of guilty to a one-count
Information which charged him with conspiracy to defraud the United States,
that is, conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371.

5Public School Review, North Miami Senior Higher, 2017-2018 school year

https://www.publicschoolreview.com/north-miami-senior-high-school-profile

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 6 of 21

This case arises out of the defendant’s involvement in conspiring with
others to apply for a loan from the Paycheck Protection Program (“PPP”) and
Economic Injury Disaster Loan (“EIDL”).

Mr. Philus and his cousin, Johnas (“Jay”) Andre, grew up together and are
very close. Mr. Andre is a college graduate who worked for Deloitte as a Senior
Designer II. Johnny has always looked up to his cousin and trusted his advice.

When the COVID-19 pandemic struck, Mr. Philus’s business came to a halt.
Since 2011, he has been the owner and operator of Elegance Auto Boutique, LLC
(“Elegance Auto”), a car rental business. No one rented cars from him after the
COVID-19 pandemic hit.

Given that Mr. Philus only has a high school diploma, he is not a savvy or
experienced business owner. He did the best that he could to promote his
business and appeal to customers. His customers rent vehicles from him for a
few days or a few months. During the pandemic, he had no clients. He complained
to Jay that he was struggling. Jay told him that he (Jay) had just filed for a PPP
loan and had been approved. He offered to help Johnny apply for a PPP loan.
Johnny had heard about the PPP loan program and understood that if he had a
business, he might qualify for a loan which he did not have to pay back as long
as he used the money to pay payroll and business expenses. Jay told him he
would help him with the application and asked Johnny for his personal and
business information, which Johnny provided. Johnny did not fill out the PPP
application, did not sign it, and did not create or even see any of the documents
that were submitted with the application – Nevertheless, his involvement in the
crime was knowing and intentional in order for him to receive money which was
to be used to purchase vehicles to expand his business.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 7 of 21

When the lender called Johnny to confirm the loan details, Johnny had to
call Jay and ask how much money had been requested and how many employees
had been listed. Johnny then provided false information to the lender regarding
the number of employees, the number of vehicles he owned and rented, and
those vehicles' value. Johnny expected to receive a loan of $100,000 and was
shocked when the amount in his bank account was $538,325. Jay told Johnny
that to have the loan forgiven, he needed to set up payroll for his employees, and
he provided Johnny with the name and phone number of a company that could
set up the payroll for him. Both Johnny and Jay knew that Johnny did not have
employees and that Johnny would list his friends and family members as
employees so they would receive the payroll disbursements. Johnny contacted
the payroll company and provided them with the personal information of friends
and family that he claimed were his employees.

Shortly after receiving the money, Johnny was told that his bank account
was being closed, and the money was being sent back to the lender. Johnny called
Jay and advised him of the situation, to which Jay responded that he did not know
what had happened and he would help Johnny get “the money back.”
Unbeknownst to Mr. Philus, a second application for an EIDL was filed, and the
lender attempted to disburse $150,000 into Mr. Philus’s bank account. These
funds were immediately returned to the lender by the bank.

Mr. Philus had no knowledge that a second application was filed on his
behalf and did not consent for that application to be filed. Since that time,
$535,653.54 has been returned to the lender, which means Johnny only received
$2,671.46 in illegal proceeds due to his participation in this fraudulent
conspiracy, although some of Johnny’s relatives did receive money that they were
not entitled to as a result of this crime.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 8 of 21

III. THE COURT SHOULD DEPART DOWNWARD BASED ON
OVERSTATEMENT OF CRIMINAL HISTORY

The policy statement for the Federal Sentencing Guideline §4A1.3(b)(1)
provides that a downward departure may be warranted “[i]f reliable information
indicates that the defendant’s criminal history category substantially over-
represents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.”

It is important to consider Johnny Philus’s criminal history in the context
of the crime-ridden and violent neighborhood he grew up in. Mr. Philus fell prey
to becoming friends with a group of young men that negatively influenced him.
Johnny was arrested in connection with numerous armed robbery charges and
committed to the Department of Juvenile Justice and placed in a maximum risk
program combined with an after-care program focusing on drug treatment.
Johnny was eventually transferred from Omega Juvenile Prison Boot Camp to Bay
Point School (“Bay Point”). The crimes he committed as a juvenile were serious,
but he learned valuable lessons during his time at Bay Point. Unfortunately for
Mr. Philus, his time at Bay Point did not cure him of his marijuana habit. By that
time, he had been smoking marijuana since he was a young teenager daily. In
several traffic stops for alleged minor infractions such as window tints, he was
arrested three times for marijuana possession.

Johnny Philus also acknowledges that he was very irresponsible with his
vehicle and allowed many of his friends and family to drive it. On numerous
occasions, they received speeding tickets, toll violations, or other tickets while
driving the vehicle. Non-payment of those infractions resulted in Johnny’s
driver’s license being suspended. Even when Mr. Philus received tickets himself,

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 9 of 21

he often did not pay the tickets, the fines, and the court costs, and his license
was suspended for non-payment.

The Guidelines in this case greatly exaggerate the significance of Mr. Philus’s
criminal history. For these reasons, Mr. Philus respectfully requests the court to
grant his motion for downward variance.

III. THE FACTORS 18 IN U.S.C. §3553 SUPPORT THE DEFENDANT’S
MOTION FOR A DOWNWARD DEPARTURE AND DOWNWARD
VARIANCE

A. THE COURT MUST CONSIDER ALL FACTORS SURROUNDING THE OFFENSE
WHEN DETERMINING SENTENCE

The greatest benefit of the United States Supreme Court decision in United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005) was that it once again vested
the power with federal district judges to use discretion at sentencings. Post-
Booker, judges are now again trusted to weigh the facts and surrounding
circumstances of each individual case and defendant, and then tailor a sentence
that they believe to be truly just. The beauty of the Booker decision is that
although the Guidelines must be calculated and considered, they are but one
factor the court must take into consideration when imposing sentence. The court
should not simply look to the Guidelines and not take into consideration the
many factors that inevitably surround an offense and a defendant’s life.

Johnny Philus certainly deserves and expects punishment. But he is not a
dangerous man who needs lengthy imprisonment to protect the public. His priors
involve foolish decisions he made as a juvenile (over eighteen years ago), arrests
caused by his use of marijuana, or irresponsible behavior concerning his driving

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 10 of 21

privileges. There is also no need to imprison him for a long time to reflect the
acknowledged seriousness of this offense, Johnny is deeply embarrassed and
remorseful for his actions, and he has admitted his responsibility. The nature and
circumstances of the offense, the sentences of other defendants, and the history
and characteristics unique to Mr. Philus support a significant variance below the
applicable Guideline range.

B. Nature and Circumstances of Instant Offense Support a Request for a
Downward Variance

The facts of this case do not fit within the heartland of conspiracy to commit
wire fraud cases, and therefore, undersigned counsel respectfully suggests that
this court should vary below the Guidelines in sentencing Johnny Philus as
requested in the sentencing memorandum.

i. Mr. Philus’s Limited Involvement in the Conspiracy Warrants a
Downward Variance Below the Applicable Guideline Range

Johnny Philus’s involvement in the conspiracy was limited to providing his
information to co-conspirators who then created fraudulent documents and
submitted two PPP applications on Mr. Philus’s behalf. He set up payroll for his
friends and family, so the loan proceeds would be paid out to them. His
involvement was deliberate and lasted for about two months.

Mr. Philus was in contact with his cousin Jay about the scheme. Johnny did
not communicate with the other participants and was not aware of the much
larger fraud that was operating. Johnny did not sign, review, or create the
documents for the PPP application that was submitted under this company name.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 11 of 21

It is also important to note that as part of the plea agreement, Johnny Philus
took responsibility for the additional $150,000 associated with the EIDL
application that was submitted under his company’s name. However, Mr. Philus
did not authorize his conspirators to submit that application. He did not sign it
nor create the supporting documents. He was not even aware of its existence
until he was arrested. When the original PPP loan funds were frozen at the bank,
Jay (Mr. Philus’s cousin) told him he would help him “get the money back.” Mr.
Philus accepted the loss amount for the EIDL application because he believed that
Jay would try to get the original funds from the PPP loan back or re-submit
another application on his behalf and “the law” supports such a loss amount.
Johnny had no idea what an EIDL application was and would not have agreed for
Jay to submit one on his behalf, which claimed he was a “farmer” and lived on a
farm.

Mr. Philus’s loss amount is $688,325, which results in an increased offense
level of 14 levels. However, if the $150,000 for the EIDL application was not
included, the resulting loss amount would be $538,325 which would result in an
increased offense level of 12 levels. Undersigned counsel acknowledges the
signed plea agreement which includes the EIDL application guideline, however,
we respectfully suggest that this court can consider that a more appropriate
offense level would be an increase of 12 levels, not 14 levels. If the court agrees,
this reduction can be done with a downward variance.

ii. Mr. Philus’s Lack of Financial Benefit and Overstatement of
Guidelines Due to “Loss Amount” Warrant a Variance

As is the case in most conspiracy to commit wire fraud cases, the
Defendant’s Guideline calculation is driven by the loss amount; this case is no
different. Mr. Philus’s Guideline punishment is driven by the “loss amount”

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 12 of 21

despite the fact almost all the monies were either sent back to the bank or were
never received by him. Additionally, unlike the typical wire fraud cases where
defendants use their ill gotten gains to purchase expensive items, the Defendant
did not receive any financial benefit beyond the $2,600 his friends and family
received through payroll.

From the original PPP loan of $538,325, a total of $535,653.54 was returned
to Celtic Bank. From the $150,000 EIDL loan that was requested, there was a
returned disbursement of $149,900. Mr. Philus never saw nor had access to the
EIDL funds. The difference between the two numbers is due to wiring,
transaction, and processing fees. Mr. Philus received very little financial benefit.
What Johnny has lost is far more – his good reputation, now being a convicted
Federal felon, his freedom, and financial loss.

Mr. Philus finds himself before this court, facing years in prison for being
involved in the conspiracy for about two months, providing his information and
names to someone else, and receiving a grand total of approximately $2,600. As
such, these factors weigh very heavily in favor of a variance significantly below
the applicable guideline range. We hope Your Honor will agree a sentence of a
year and a day in custody, 12 months house arrest and three years’ supervised
release is a proper and just sentence.

C. THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT SUPPORT A
SIGNIFICANT DOWNWARD VARIANCE

Johnny Philus has learned a great deal from his involvement and the felony
conviction in this case. In reading the character letters submitted on behalf of

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 13 of 21

Johnny, it is clear that he is a person whose first and primary focus is his family.6
When he is not working to support his family, he dedicates every free moment to
his partner and his children. Mr. Philus’s devotion and deep commitment to his
family represent his character more than the instant offense.

i. The Defendant Has Extraordinary Familial Obligations That Warrant
a Sentence Below the Applicable Guidelines

Mr. Philus is the primary breadwinner for his partner and three step
children who rely on him almost exclusively for support. The family faces severe
financial hardship. Of course, Mr. Philus should have considered his
responsibility to his partner and children before committing the crime he pled
guilty to. They will face tremendous emotional and financial hardship during the
period of Mr. Philus’s incarceration. Mr. Philus admits and acknowledges his
involvement in this offense and is devastated that his actions will harm his family
and future. After his juvenile run-ins with the police, Johnny was a law-abiding
citizen until this time.

The sad truth is that as a Black man, Mr. Philus and his family will face more
negative future consequences with respect to employment, financial security,
family stability, impact on his children’s development and reintegration into
society than experienced by his white counterparts facing similar charges.

The U.S. penal population of 2.2 million adults is the largest in the world.7 In
2012, close to 25 percent of the world’s prisoners were held in American prisons,

6 These letters will be submitted as a separate filing.
7 National Research Council, The National Academics Press, The Growth of Incarceration in the

United States: Exploring Causes and Consequences (2014), page 2, available at
https://doi.org/10.17226/18613.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 14 of 21

although the United States accounts for only about 5 percent of the world’s
population.8 More than half the prison population is Black or Hispanic.9 In 2010,
Black citizens were incarcerated at six times and Hispanics at three times the rate
for non-Hispanic whites. 10 One scholar predicted that "imprisonment will
become the most significant factor contributing to the dissolution and
breakdown of African American families during the decade of the 1990s."11

Virtually all research on employment and earnings find that people who have
been incarcerated and convicted do very poorly in the labor market because of
their difficulty in being employed. Nowadays, someone’s criminal history is
available to all potential employers at the click of a button. More and more states
and private employers are instituting rules to exclude individuals with criminal
records permanently. In addition, extended periods of absence from the labor
market can erode skills and create significant gaps in work histories, in turn
raising questions about individuals’ preparation for work.12 Research has also
shown that men with prison records are estimated to earn thirty to forty percent
less annually than men without prison records.13

The racial and ethnic disparities of the prison population are also reflected in
the disparate rates of parental incarceration. In 2007, Black and Hispanic children
in the United States were 7.5 and 2.7 times more likely, respectively, than white
children to have a parent in prison.14 Most studies find that incarceration is

8 Id. At 2.
9 Id. At 2.
10 Id.at 2.
11 King, A., The impact of incarceration on African American families: Implications for practice.(

Families in Society: The Journal of Contemporary Human Services, 74, 145—153, (1993)
12 Id. At. National Research Council, page 235, available at https://doi.org/10.17226/18613.
13 Daniel Snyder, One Size Does Not Fit All: A Look At The Disproportionate Effects Of Federal

Mandatory Minimum Drug Sentences On Racial Minorities And How They Have Contributed To
The Degradation Of The Underprivileged African-American Family, 36 Hamline J. Pub. L. & Pol'y
77: Hamline Journal of Public Law and Policy Fall, 2014.
14 Id. At. National Research Council, page 260, available at https://doi.org/10.17226/18613

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 15 of 21

associated with weaker family bonds and lower levels of child well-being. The
majority of children of incarcerated parents face profound and complex threats
to their emotional, physical, educational, and financial well-being.15 Many
children whose parents are involved in the criminal justice system, in particular,
face a host of challenges and difficulties: psychological strain, antisocial
behavior, suspension or expulsion from school, economic hardship, and criminal
activity.16 Children with imprisoned parents also do worse in school, and twenty-
three percent of children with incarcerated fathers are expelled or suspended,
compared to 4 percent of children without.17 One statistic indicates that children
of incarcerated parents are, on average, six times more likely to become
incarcerated themselves.18

The closeness of the child and the incarcerated parents' relationship is often
a factor that can exacerbate the negative impact on the child of being separated
from that parent. Mr. Philus is very close to his three step sons, ages 13, 14, and
21. He is justifiably concerned that if he is separated from his children for an
extended period during this crucial period in their development, it could have
devastating consequences for them.

Incarceration of one parent also puts the remaining parent under immense
pressure to manage the financial, household and childcare duties which in turn

15 Eric Martin, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice

Hidden Consequences: The Impact of Incarceration on Dependent Children available at
https://www.nij.gov/journals/278/pages/impact-of-incarceration-on-dependent-
children.aspx
16 Id.
17 Clio Chang, The Century Foundation Incarcerated Fathers and the Children Left Behind,
September 93, 2004, https://tcf.org/content/commentary/incarcerated-fathers-and-the-
children-left-behind/?Agreed=1
18 Megan Cox, The Relationships Between Episodes of Parental Incarceration and Students'

Psycho-Social and Educational Outcomes: An Analysis of Risk Factors , Philadelphia: Temple
University, 2009.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 16 of 21

can result in a breakdown in the relationship between the parents. Numerous
studies suggest that “those incarcerated had a much harder time marrying,
staying married, and parenting their children.”19

According to the Bureau of Justice Statistics, more than half of fathers in state
prison report being the primary breadwinner in their family, thus the partners
and children of these men experience a loss of economic resources while the
provider is in prison.20 This effect is also likely to persist after the father returns
home, given what is known about the link between incarceration and
unemployment.

Although section 5H1.6 of the Guidelines state that “family ties and
responsibilities and community ties are not ordinarily relevant in determining
whether a sentence should be outside the Guidelines”, courts have recognized
that extraordinary family circumstances can warrant a downward departure. “The
United States Sentencing Guidelines do not require a judge to leave compassion
and common sense as the door to the courtroom.” United States v. Chambers,
885 F.Supp. 12 (D.D.C. 1995). The studies suggest that Mr. Philus and his family
are going to face considerable and disproportionate hardship because of his
incarceration and because he is a Black man.

Mr. Philus is a devoted partner, father, brother, and son who was involved
in a financial, non-violent offense. Undersigned counsel recommends a sentence

19 Joseph E. Kennedy, The Jena Six, Mass Incarceration, Remoralization of Civil Rights, 44 Harv.

C.R.-C.L. L. Rev. 477: Harvard Civil Rights-Civil Liberties Law Review, Summer 2009.
20 Eric Martin, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice

Hidden Consequences: The Impact of Incarceration on Dependent Children available at
https://www.nij.gov/journals/278/pages/impact-of-incarceration-on-dependent-
children.aspx

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 17 of 21

below the applicable guideline range as requested herein as an appropriate
sentence in this case.

D. THE COURT SHOULD SEEK UNIFORMITY IN SENTENCING AND THAT
SIMILARLY SITUATED DEFENDANT’S RECEIVE SIMILAR SENTENCES.

18 U.S.C. §3553(a)(6) advises the court to avoid unwarranted sentencing
disparities among defendants with similar records who have been found guilty of
similar conduct. In its holding in Booker the United States Supreme Court stated:

“[t]his point is critically important. Congress’ basic goal in passing
the Sentencing Act was to move sentencing in the general direction
of uniformity. That uniformity does not simply consist of similar
sentences for those convicted of violation the same statute…[i]t
consists, more importantly, of similar relationships between
sentences and real conduct…” Supra at 254.

The necessity for consistent and not disparate sentencing, especially within
the same district, cannot be overstated. Part of the purpose behind creating the
Sentencing Commission was to ensure that similarly situated defendants receive
comparable sentences.

In United States v. Jaafar, 20-CR-00185-CMH, Eastern District of Virginia,
Mr. Jaafar pled guilty to one count of conspiracy to defraud various financial
institutions and the United States in violation of 18 U.S.C. § 371.(D.E. 34). He and
his co-conspirator, his wife Monika Jaworska, submitted 18 fraudulent PPP loan
applications in their own names and in names of their four business to twelve
financial institutions. The eighteen PPP loans totaled $6,640,200 and a total of
$1,438,500 was disbursed. The defendant withdrew $30,000 in cash, which the
government later recovered. Additionally, between April 7, 2020, and April 15,
2020, Mr. Jaafar and his wife submitted two EIDL loan applications for two of the

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 18 of 21

shell entities to the SBA. As a result, one $10,000 EIDL advance was obtained
from the SBA. Knowing he and his wife were both under investigation, and despite
making plans to meet with the government in-person for a second planned
meeting, Jaafar purchased one-way tickets for himself, his wife, and their two
children, to fly from New York to Poland, June 20, 2020. Mr. Jaafar and his wife
were arrested at John F. Kennedy International (“JFK”) airport with 18 bags. Law
enforcement found $49,875.65 in cash in the various bags, approximately 14
cell phones, and multiple laptops. Both Mr. Jaafar and his wife were taken into
custody and ordered pre-trial detained. At sentencing, Mr. Jaafar’s advisory
guideline range was calculated to be 24 to 30 months’ imprisonment. (D.E. 62).
He was sentenced to 12 months’ imprisonment. (D.E. 67). Ms. Jaworski’s
sentencing range was also calculated to be 24 to 30 months. At the time of
sentencing, the parties jointly recommended a sentence of time served. Ms.
Jaworska had been in custody for approximately six months.

Mr. Jaafar and Ms. Monika Jaworska’s conduct was far more egregious than
that of Mr. Philus. They knowingly submitted 18 fraudulent applications, secured
loans over $1.8 million, and attempted to flee the country when they were
arrested. However, like Mr. Philus they did not greatly financially benefit from
their crimes as almost all the money was recovered. Mr. Jaafra and his wife were
in a similar situation to Mr. Philus and Ms. Stanley concerning their children. Mr.
Jaafar and his wife had two children and both parties recommended that since
Ms. Jaworska seemed to be less culpable than her husband, she was the caretaker
of the couple’s two children, and to avoid the children being placed in foster-
care or with other family members a sentence of time served was recommended
for her.

In United States v. Jackson, 20-CR-112-MJN, Southern District of Ohio, Ms.
Jackson pled guilty to two counts of scheme to defraud the United States in

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 19 of 21

violation of 18 U.S.C. §1343 and one count of false statement in violation of 18
U.S.C. §1001(a)(2). (D.E. 27). On March 29, 2020. Jackson submitted a loan
application to the EIDL Program on behalf her company. A month later, she also
applied for a PPP loan of $1,315,491.12. Soon after that she submitted another
application seeking a PPP loan of $1,236,817. She submitted fraudulent tax
documents and other supporting records for all these applications. A total of
$2,312,117 in fraudulent loan proceeds was issued under the three loans;
$6,020.30 was not recovered. One of the primary mitigating factors in the case
was that Ms. Jackson had four minor children. At sentencing, her advisory
guideline range was 51 to 67 months. (D.E. 31). She was sentenced to 24 months
imprisonment. (D.E. 39).

In United States v. Hayford, 20-CR-00088-CVE, Northern District of
Oklahoma, Mr. Hayford pled guilty to one count of bank fraud in violation of 18
U.S.C. § 1344 and one count of false statements to a financial institution in
violation of 18 U.S.C. § 1014. (D.E. 26).21 His loss amount was $8 Millions. Mr.
Hayford did not enter into a written plea agreement. He was sentenced to 24
months imprisonment. (D.E. 38).

The sentences in the above cases were significantly under the low-end of
the applicable Guidelines. Mr. Philus is considerably less culpable than Ms.
Jackson and Mr. Hayford; he did not file the applications himself, did not create
the fraudulent documents, and he minimally financially benefitted. In all of the
above-referenced cases, all the defendants received sentences well below their
guidelines, and as such, a well below guideline sentence is appropriate in this
case.

21 Undersigned counsel obtained this information from DOJ press releases at

https://www.justice.gov/usao-ndok/pr/arkansas-project-manager-sentenced-connection-
covid-relief-fraud. Last accessed May 23, 2021.

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 20 of 21

IV. CONCLUSION
Punishment comes in many forms, and it is the unenviable task of this
court to determine what form is most appropriate. All too often, courts find that
the only truly punitive tool at their disposal is lengthy imprisonment. The
Supreme Court in Booker vested district courts with the ability to consider the
facts and circumstances, and more importantly, the unique characteristics of
each defendant and his involvement in the crime they were convicted of.

This was a stupid, inexcusable, almost profitless crime that has absolutely
destroyed Johnny Philus’s life and will forever have a severe negative impact on
his future. Mr. Philus is a good man who made a grave error in judgment when
he committed the crime which he pled guilty to. He has readily admitted his
mistakes and accepts responsibility. Johnny now stands before the court as a
convicted felon who will forever have to live with the shame and consequences
of his acts. Johnny Philus has caused irreparable damage to his family and career.
He is disgraced in the community and now faces the weight of being a convicted
felon forever.

He has accepted responsibility for his actions and is truly repentant. 18
U.S.C.§3553(a) states that any sentence imposed must be “sufficient but not
greater than necessary.” In this instance, the Defendant recommends the court
to sentence Johnny Philus to a sentence below the applicable guideline range to
one year and one day incarceration followed by twelve months of house arrest
and three years of supervised release. The Defendant also requests that this court
recommend the Defendant serve his sentence at the Federal Prison Camp in
Miami.

WHEREFORE, based upon the foregoing and additional arguments to be
made at the time of sentencing, the Defendant, JOHNNY PHILUS by and through

Case 1:21-cr-20067-MGC Document 51 Entered on FLSD Docket 05/26/2021 Page 21 of 21

his undersigned counsel, moves this court to grant his motion for downward
variance in accordance with 18 U.S.C. §3553 and sentence the Defendant to a
sentence of a period of twelve (12) months and one day incarceration followed
by twelve months house arrest and three years of supervised release. The
Defendant also requests that this court recommend the Defendant serve his time
at the Federal Prison Camp in Miami.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
electronically filed with the Clerk of the Court by using the CM/ECF system which
will send a notice of electronic filing to all counsel of record this 25th day of May
2021.
Respectfully submitted,

JEFFREY S. WEINER, P.A.
ATTORNEYS AT LAW
Two Datran Center, Suite 1910
9130 South Dadeland Blvd.
Miami, Florida 33156-7858
305 670-9919
305 670-9299 Fax
lawfirm@jeffweiner.com

By: /s/Jeffrey S. Weiner
JEFFREY S. WEINER, ESQUIRE
Florida Bar No. 185214

By: /s/Annabelle Nahra Nadler
ANNABELLE NAHRA NADLER, ESQUIRE
Florida Bar No. 96072

By: /s/ Diego Weiner
DIEGO WEINER, ESQUIRE
Florida Bar No. 122454

By: /s/ Yisel Villar
YISEL VILLAR, ESQUIRE
Florida Bar No. 1015657

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