Defense Sentencing Submission — U.S. v. Martinez (S.D.N.Y. No. 1:22-cr-00251)

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U.S. District Court for the Southern District of New York · No. 1:22-cr-00251-LJL · Doc. 75 · 2023-06-27 · Docket on CourtListener

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UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF NEW YORK 
----------------------------------------
X 
UNITED STATES OF AMERICA, 
V. 
RAFAEL MARTINEZ, 
Defendant. 
----------------------------------------
X 
Case No. Sl 22 Cr. 251 (LJL) 
SENTENCING SUBMISSION ON BEHALF OF RAFAEL MARTINEZ 
WILLKIE FARR & GALLAGHER LLP 
Michael S. Schachter 
Randall W. Jackson 
787 Seventh Avenue 
New York, New York 10019 
MORVILLO, ABRAMOWITZ, GRAND, 
IASON & ANELLO, P.C. 
Elkan Abramowitz 
Telemachus P. Kasulis 
565 Fifth A venue 
New York, New York 10017 
Attorneys for Defendant Rafael Martinez 
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TABLE OF CONTENTS 
INTRODUCTION ........................................................................................................................... 1 
DISCUSSION .................................................................................................................................. 4 
I. 
CONSIDERATION OF THE SECTION 3553(A) FACTORS MERITS A 
DO WNW ARD VARIANCE FROM THE SENTENCING GUIDELINES . ...................... 6 
A. 
Mr. Ma1t inez's Hist01y and Character ..................................................................... 6 
I. 
Mr. Martinez's Childhood and Education ................................................... 6 
2. 
Mr. Mart inez's Family and Commitment to Community ............................ 8 
3. 
Mr. Martinez's Career.. .............................................................................. 14 
B. 
The Nature and Circumstances of the Offense ...................................................... 17 
1. 
Offense Background .................................................................................. 17 
2. 
The Nature and Circumstances of the Offense Call for Leniency ............. 26 
(a) 
There Was No Predatory Motive ................................................... 28 
(b) 
The Loss Amount Overstates the Seriousness of the Offense ....... 29 
C. 
A 60-Month Sentence Is Greater Than Necessa1y to Achieve Deten ence ............ 33 
D. 
A 60-Month Sentence Would Impose Unnecessary Collateral Costs on 
Rafael's Family and Community .......................................................................... .35 
CONCLUSION .............................................................................................................................. 36 
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TABLE OF AUTHORITIES 
Cases 
Page(s) 
Gall v. United States, 
552 U.S. 38 (2007) ................................................................................................................ .4, 5 
United States v. Adelson, 
441 F. Supp. 2d 506 (S.D.N.Y. 2006) .................................................................................. 6, 30 
United States v. Algahaim, 
842 F.3d 796 (2d Cir. 2016) .................................................................................................... .31 
United States v. Archer, 
No. 1:16-cr-00371 (S.D.N.Y. March 4, 2022) ........................................................................ .31 
United States v. Argo, 
No. 1:07-cr-00683 (S.D.N.Y. Jan. 23, 2008) .......................................................................... .30 
United States v. Chow, 
No. 17-cr-667 (S.D.N.Y. Jan 17, 2019) .................................................................................. .31 
United States v. Cooper Morgenthau, 
No. 1:23-cr-00002 (S.D.N.Y. April 17, 2023) ........................................................................ .31 
United States v. Corsey, 
723 F.3d 366 (2d Cir. 2013) ................................................................................................. 5, 32 
United States v. Craig, 
703 F.3d 1001 (7th Cir. 2012) ................................................................................................ .35 
United States v. Ferguson, 
No. 3:06-cr-00137 (D. Conn. Dec. 31, 2008) ......................................................................... .30 
United States v. Gaind, 
829 F. Supp. 669 (S.D.N.Y. 1993) .......................................................................................... .33 
United States v. Ghavami, 
No. 1:10-cr-01217 (S.D.N.Y. May 8, 2013) ........................................................................... .30 
United States v. Gupta, 
904 F. Supp. 2d 349 (S.D.N.Y. 2012) .................................................................. 4, 5, 29, 30, 33 
United States v. Guzzone, 
20-cr-354 (LJL), (S.D.N.Y. Jan. 19, 2021) .............................................................................. 16 
United States v. Hamilton, 
323 F. App'x 27 (2d Cir. 2009) .............................................................................................. .34 
11 
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United States v. Harris, 
821 F.3d 589 (5th Cir. 2016) .................................................................................................. .32 
United States v. Hastings, 
No. 1:20-cr-00534 (S.D.N.Y. Nov. 8, 2021) .......................................................................... .31 
United States v. Huberfeld, 
16-cr-467 (LJL) (S.D.N.Y. Sept. 28, 2021) ............................................................................. 17 
United States v. Johnson, 
No. 16-CR-457-1 (NGG), 2018 WL 1997975 (E.D.N.Y. Apr. 27, 2018) ............................... 29 
United States v. Kozersld, 
969 F.3d 310 (6th Cir. 2020) .................................................................................................. .32 
United States v. Lawrence, 
254 F. Supp. 3d 441 (E.D.N.Y. 2017) ..................................................................................... 35 
United States v. Martin, 
796 F.3d 1101 (9th Cir. 2015) ................................................................................................ .32 
United States v. Merritt, 
988 F.2d 1298 (2d Cir. 1993) ..................................................................................................... 6 
United States v. Milton, 
No. 3:06-cr-00137 (D. Conn. Jan. 30, 2009) .......................................................................... .30 
United States v. Polevikov, 
1:21-cr-00774 (S.D.N.Y. May 3, 2022) ............................................................................... 4, 17 
United States v. Shulick, 
18 F.4th 91 (3d Cir. 2021) ...................................................................................................... .32 
United States v. Smith, 
No. 1:21-cr-20001 (S.D. Fla. Dec. 16, 2021) ......................................................................... .32 
United States v. St. Bernard, 
No. 06-CR-483 (JBW), 2008 WL 973138 (E.D.N.Y. March. 19, 2008) ................................ .33 
United States v. Velazquez, 
No. 16-cr-233, 2017 WL 2782037 (S.D.N.Y. May 26, 2017) ................................................. 34 
United States v. Whittier, 
No. 1:07-cr-0087 (S.D.N.Y. Oct. 18, 2007) ........................................................................... .30 
Other Authorities 
Bany Boss & Kara Kapp, How the Economic Loss Guideline Lost its Way, and 
How to Save It, Ohio St. J. of Cr. Law 605 (2021) .................................................................. 29 
lll 
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U.S. Sent'g Comm'n, Amendments to the Sentencing Guidelines (April 27, 2023) .................... .34 
U.S. Sent'g Comm'n, Measuring Recidivism: The Criminal History Computation 
of the Federal Sentencing Guidelines, Ex. 9 (May 2004) ........................................................ 34 
Zvi D. Gabbay, Exploring the Limits of the Restorative Justice Paradigm: Restorative 
Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421 (2007) ............................ .35 
IV 
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Defendant Rafael Martinez respectfully submits this memorandum to aid the 
Cornt in his sentencing, cun-ently scheduled for July 11, 2023. 
INTRODUCTION 
The conviction in this case represents an utter abenation in the life of the man 
before the Comt-a man whose "personal history and characteristics" are dramatically different 
from most who appear for sentencing. Rafael Ma1tinez fully accepts responsibility for his 
conduct, has pied guilty without bmdening this Court with a trial, and will stand before Your 
Honor on July 11 in acknowledgement that it was his serious lapse in judgment, and nothing 
else, that has led him to this moment. This memorandum seeks to make no excuses for Rafael's 
conduct: he submitted false documentation to both the Small Business Administration (the 
"SBA") and Bank of America in connection with applications related to the federal Paycheck 
Protection Program ("PPP"), and in doing so, he broke the law. Instead, we write, alongside the 
many letters submitted to Your Honor by those in Rafael's life, in an effmt to provide this Comt 
with a glimpse of who Rafael is as a person, beyond the conduct described in the Indictment, 
with the hope that this Cornt will recognize that it is a man's "whole life" that matters at 
sentencing, not just his most regrettable mistakes. 
In some respects, Rafael's offense can be viewed as a warped extension of the 
otherwise admirable philosophy that has defined his life: that is, to provide for others and to step 
up when others have stepped aside. Deserted by his father when he was ve1y young, Rafael is 
the eldest of four children, raised by their single mother, an immigrant from the Dominican 
Republic, who cleaned houses in Washington Heights in order to provide for her children. By 
age 13, he'd acquired a number of odd jobs around the neighborhood and spent the weekends 
fixing bike flats and canying groceries for women in the community in an effort to lessen his 
family's financial burdens. 
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At age 24, Rafael manied the love of his life, Ina, who was his anchor, his trnsted 
confidant, and his best friend. As we describe below, Rafael and Ina believed strongly in 
community and strove to embody the ethos that to those whom much is given, much is expected. 
Rafael has se1ved his community for 35 years as a youth mentor at his church. He and his 
family, including his two beloved daughters, Chelsea and Samantha, have for years delivered 
turkeys eve1y Thanksgiving to disadvantaged families in his native Washington Heights 
community. Each fall, Rafael stocks the public school classrooms where his sisters teach with 
fresh school supplies, so that none of the children in their classes will suffer the indignity of not 
having the tools necessa1y to complete classwork. These small, consistent acts of community 
speak volumes about the kind of person that Rafael is. 
Indeed, even in the face of unbearable grief, Rafael has tried to put others first. In 
2018, despite a valiant five-year snuggle against breast cancer, Ina passed away, leaving behind 
her young daughters and a devastated Rafael. Rafael's daughters, inspired by their mother's 
ti·emendous capacity for empathy, urged Rafael to make his wife's mem01y count for something 
bigger than themselves. He listened, and with their help, went on to establish 100 scholarships at 
Cardinal Hayes High School, in the Bronx. Those scholarships have allowed the sons of families 
who could never have otherwise afforded the tuition at a private school like Cardinal Hayes to 
receive an excellent high school education. In 2019, in recognition of how highly Ina had valued 
community engagement, Rafael renovated the community recreational center in Englewood, 
New Jersey, now named the Ina Maiiinez Fellowship Hall. Generosity of this nature is rare, 
even among those that are well-off, and its consistency over the course of Rafael's life evidences 
Rafael's real character and integrity and se1v es as proof that the circumstances that have led 
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Rafael to Your Honor's courtroom are indeed an anomaly in a life othe1wise lived with deep 
compassion for others and respect for our system of law. 
Indeed, even with respect to the instant offense, Rafael thought that his company, 
MBE Capital Partners ("MBE"), was uniquely situated to help businesses in need during an 
unprecedented global pandemic, especially the small and minority-owned businesses that were 
excluded from the PPP loan market established by traditional banks. Although it is undisputed 
that Rafael provided inaccurate information to the SBA on MBE's application for a license to 
issue PPP loans, it is equally undisputed that MBE provided almost $1 billion in much-needed 
loans to tens of thousands of deserving small businesses and people of color, exactly as the SBA 
intended when it granted MBE its license. Unlike most fraud cases where the Guidelines "loss" 
is the amount the defendant stole from innocent victims, here the "losses" which drive Rafael's 
adviso1y sentence are the fees MBE legitimately earned for doing its best to help the government 
get vital relief into the hands of underse1ved, minority-owned small businesses. While we do not 
dispute that it is a serious crime to submit an application to the federal government that contains 
false infmmation, we respectfully submit that the moral culpability of the wrong is mitigated to a 
meaningful extent by the fact that Rafael's company worked hard in challenging circumstances 
to deliver the critical se1vices it was expected to deliver, and in doing so, helped thousands of 
snuggling small businesses weather the pandemic. 
Likewise, there is no dispute that when MBE itself applied for a PPP loan-from 
Bank of America-Rafael overstated MBE's payroll obligations on the loan application. That 
misrepresentation is something that Rafael will regret for the rest of his life. But, unlike most of 
the PPP fraud cases that have been brought throughout this count1y, the $250,000 in PPP funds 
that Bank of America provided to MBE was in fact spent on payroll and business expenses, 
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precisely as Congress intended when it launched the CARES Act in 2020. In other words, this 
case is ve1y different than the typical PPP fraud case, in which the fraudster pocketed his PPP 
loan for himself, rather than on business expenses or employee payroll. 
Last year, in an unrelated sentencing of a white-collar defendant, Your Honor 
took pains to explain that a "person is not defined by their worst conduct" and that the federal 
sentencing statute, 18 U.S.C. § 3553(a), is designed to give comts flexibility in sentencing, to 
reflect the whole of a person's character, not their weakest moments. See Tr. at 42, United States 
v. Polevikov, l:21-cr-00774 (LJL) (S.D.N.Y. May 3, 2022), Dkt. 31. We respectfully submit that 
when Rafael's mistakes- serious as they are---are measured against the totality of his life, 
including the tremendous generosity of both time and resources that he has consistently given to 
his community, the Comt can detennine that a Guidelines sentence would be greater than is 
necessa1y to achieve the sentencing purposes of Section 3553(a). We respectfully and humbly 
request that the Comt, in light of Rafael's status as a first offender, the nature of the offense, and 
in consideration of Rafael's demonstrated good character, vaiy downward substantially from the 
advisory Guidelines sentence. We submit that such a sentence would be sufficient, but not 
greater than necessaiy, to satisfy the legitimate objectives of sentencing. 
DISCUSSION 
"Imposing a sentence on a fellow human being is a fonnidable responsibility." 
United States v. Gupta, 904 F. Supp. 2d 349, 350 (S.D.N.Y. 2012). The responsibility caiTies 
with it the obligation to "consider eve1y convicted person as an individual and eve1y case as a 
unique study," and, for that reason, judges are given both flexibility and deference, so that they 
may freely exercise compassion in the face of the "the human failings" that can, and do, lead 
good people temporai·ily astray. Gall v. United States, 552 U.S. 38, 52 (2007). 
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Sentencing a man requires "great care and sensitivity" because the "facts and 
factors" that must be weighed are numerous and impmiant. Gupta, 904 F. Supp. 2d at 350. 
While a sentencing court is required to "co1rnctly calculat[e] the applicable Guidelines range," 
see Gall, 552 U.S. at 49, that calculation falls "second" to "the bedrock" of federal sentencing, 
18 U.S.C. § 3553(a), which "requires a comt to take account of a defendant's character in 
imposing sentence." Gupta, 904 F. Supp. 2d at 353-54. Under Section 3553(a), the Comt must 
look at (1) the histmy and characteristics of the defendant; (2) the nature and circumstances of 
the offense; (3) the need to protect the public from finther crimes of the defendant; (4) the need 
to afford adequate detenence; and (5) the need to avoid unwananted sentence disparities. Gall, 
552 U.S. at 49-50 & n.6. As these factors reflect, sentencing bestows a "moral responsibility" to 
"judge the man as a whole." Gupta, 904 F. Supp. 2d at 350, 354. 
The Guidelines sentence and statuto1y maximum te1m of imprisonment applicable 
in this case is 60 months. (PSR ,r 5.) As the Second Circuit has explained, this Guidelines 
sentence is, at best, a "sta1ting point in a deeper analysis" of the appropriate sentence, which 
should involve consideration of the Section 3553(a) factors. United States v. Corsey, 723 F.3d 
366, 375-376 (2d Cir. 2013) (holding that district comt committed procedmal enor by assuming 
that imposition of statuto1y maximum sentence was "per se reasonable" because Guidelines 
range prior to application of§ 5G 1.1 "soared past the statutmy maximum.") Here, consideration 
of the factors described in Section 3553(a) leads to the conclusion that a non-Guidelines sentence 
is appropriate. 
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I. 
CONSIDERATION OF THE SECTION 3553(A) FACTORS MERITS A 
DOWNWARD VARIAN CE FROM THE SENTENCING GUIDELINES. 
A. 
Mr. Martinez's History and Character 
In the Second Circuit, a defendant's histmy and character are "central 
consideration[s] in the fashioning of a just sentence." United States v. Merritt, 988 F.2d 1298, 
1307 (2d Cir. 1993). By carefully considering a defendant's histmy and character, the Court 
adheres to the "elementaiy principle of weighing the good with the bad, which is basic to all the 
great religions, moral philosophies, and systems of justice" because "surely, if ever a man is to 
receive credit for the good he has done, and his immediate misconduct assessed in the context of 
his overall life hithe1to, it should be at the moment of his sentencing, when his very future hangs 
in the balance." United States v. Adelson, 441 F. Supp. 2d 506, 513-14 (S.D.N.Y. 2006). 
Rafael, in pa1ticular, is deserving of this Court's compassion. Dozens of people 
have written to the Court to explain that Rafael is, above all, a loving father and grandfather, a 
man of faith, and person who has spent his entire life giving back to people who are less 
fo1tunate than himself. (See Exhibit A, Letters to Judge Liman.) These letter-writers describe a 
fundamentally good man whose love for his two daughters, Chelsea and Samantha, his two 
grandchildren,. 
and-
and his late-wife Ina has touched the lives of many, and who in 
return, ask this Comt to exercise leniency during sentencing. 
1. 
Mr. Mart inez's Childhood and Education 
Rafael, now 58, grew up in the Washington Heights neighborhood of New York 
City, the eldest of four children, in a proud Dominican family. Rafael's father abandoned the 
family when Rafael was a young child, but Rafael's mother, Maria, worked multiple jobs 
cleaning houses and cooking meals for other women in the neighborhood in order to provide for 
her family. As the oldest child, Rafael quickly stepped up as a father figure to his younger 
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siblings. His sister, Rosa, recalls that Rafael was a ''ve1y responsible and thoughtful older 
brother," who helped with homework, maintained order when their mother was away, and took 
odd jobs all over the neighborhood to contribute to the family's finances. (Ex. A at 8.) Even as 
a kid, Rafael put his family first: when he earned his first paycheck at the age of 13, he did not 
spend the money on himself. Instead, he bought his twin sisters a hula hoop because they 
desperately wanted one and their mother was not able to afford it. (Ex. A at 7.) 
Rafael attended high school at Cardinal Hayes High School. Although he was 
never a stellar student, he excelled on the football, baseball, basketball, track, and hockey teams. 
(PSR ,r 68.) Both he and his mother worked hard in order to afford the tuition at Cardinal Hayes: 
in between practices and games, Rafael worked eve1y chance he could get. He sold programs at 
Madison Square Garden for New York Ranger games and he worked as a clerk at a menswear 
store in Washington Heights, where he gained an appreciation for both business and fashion. As 
always, he continued to take odd jobs around the Washington Heights neighborhood. Yet, 
despite the efforts of both Rafael and his mother, the tuition obligations at Cardinal Hayes often 
felt out of reach and there were multiple times when Rafael was in jeopardy of being expelled 
from school because the tuition bill had not been paid. (PSR ,r 68.) That experience, and that 
anxiety, was one he never forgot. 
After graduating from high school, Rafael emolled at the University of Syracuse, 
with the dream of studying architecture. After learning that it would take many years of 
apprenticeship before he would earn a meaningful income in architecture, he realized that such a 
degree did not make sense for him, given the financial needs of his family. (PSR ,r 69.) 
Recalling his experience as a sales clerk in the menswear boutique in Washington Heights, he 
transfeITed to the Fashion Institute of Technology ("FIT") in New York City, where he began 
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studying finance and apparel production management. (PSR ,r 70.) Although he liked his 
classes very much, his mother was snuggling to support his brother and sisters and Rafael 
ultimately withdrew from school two semesters before graduating in order to find full-time 
employment. (PSR ,r 70.) 
Despite the fact that they had ve1y little in te1ms of material wealth, Rafael recalls 
a joyful childhood, and when he became a father, he stJ.·ove to emulate that same happy 
upbringing in his own home. Indeed, the sacrifices Maria made for her family have left a life-
long impression on Rafael. To this day, Rafael spends Father's Day with Maria because she 
played the role of both a mother and a father in his life. Her steadfast belief in him and his 
siblings was one of the driving forces behind Rafael's dete1mination to do well, leave the 
Washington Heights neighborhood, and make a name for himself. To this day, Rafael has been 
unable to bring himself to tell his 90-year old mother, who devoted herself so selflessly to her 
children, about his conduct and the charges in this case for fear of breaking her heart. 
2. 
Mr. Martinez's Family and Commitment to Community 
Although Rafael did not graduate from FIT, the most pivotal moment of his life 
occuned while he was studying there: he met the love of his life, Ina Samuels, outside the 
school cafeteria. Theirs was a tJ.ue love affair, and to this day Rafael considers his decision to 
ask Ina to marry him to be the best and most imp01tant decision he has ever made. 
After they were manied, Rafael and Ina moved to New Jersey to sta1t a family. 
They had two daughters, Chelsea and Samantha. Rafael was dete1mined to be the father to his 
daughters that he had never had: he checked homework, he taught the girls to dance, he made it 
a point to have dinner with his family. When his younger daughter Samantha, who was born 
with cerebral palsy, wanted to play fomth-grade basketball, Rafael didn't tJ.y to coax her out of 
it. Instead, he signed up to coach the girls' basketball team and designed special plays that 
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wouldn't tax Samantha's much weaker left side. (Ex. A at 5.) When Samantha was 15, Rafael 
practiced slow dancing with her so that she could dance confidently at her "Sweet Sixteen" 
bitthday party, despite the weakness in her ankles. (Id.) Rafael was equally as close with 
Chelsea, his oldest daughter. An accomplished athlete, Chelsea was recrnited to attend Ohio 
State University as a fencer and was palt of the NCAA champion women's team in her freshman 
year. Throughout her childhood, Rafael was the consistent parent on the sidelines, determined to 
make sure that Chelsea knew how proud he was of her. 
Rafael and Ina were united in theit· belief that helping others is a vital palt of any 
life wmth living and they strove to instill those same values in their daughters. The family was 
active in St. Paul's Episcopal Church in Englewood, New Jersey where they actively supported 
the choit· program. Rafael, who has been a member of the parish for 35 years, served on St. 
Paul's Vestry, which is the congregation's board of leadership, and also served as a mentor to 
young people in the parish. Father Bill Allpmt, the Church's pastor, describes Rafael as "a man 
of deep commitment to family ... , to community, and to those without social or economic 
advantages." (Ex. A at 12.) Over the years, Rafael has donated more than $175,000 wolih of 
furniture and others goods to local parishes, including the purchase of a replacement furnace for 
the Transcend Worship Center in Irvington, New Jersey. 
As children, Chelsea and Samantha ( along with their parents) fed the homeless on 
Thanksgiving and in more recent years, the family has donated hundreds of turkeys to strnggling 
families in the Washington Heights neighborhood. (Ex. A at 3, 7, 8, 13.) When Chelsea was a 
teenager, she began playing golf and Rafael recalled his own first experience with the sport: he 
had been invited to a golf outing as part of a business event and was embanassed to say that he 
had never played. Although Rafael realized that Chelsea would not have that same experience, 
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Rafael realized he wanted to do more. Together with Ina, the couple began sponsoring a golf 
camp, so that kids from impoverished backgrounds who were interested in golf would have the 
opportunity to be taught by real players and play on real courses. (Ex. A at 7, 8.) Rafael and Ina 
similarly suppo1ted a soccer league which provided free after-school and surnmer camp 
experiences for young people in Washington Heights. (Ex. A at 13.) Indeed, his mother's 
immigrant background and his Dominican heritage inspired Rafael to create a civic organization 
called Entre Familia, which was dedicated to providing professional and educational 
opp01tunities for the Dominican community. (Ex. B, Entre Familia Presentation.) 
When Rafael's daughters were still young teenagers, tragedy strnck the family. 
Ina was diagnosed with breast cancer, which eventually metastasized to her lungs, stomach, 
spine, and brain. Although doctors only gave her three years to live, Ina fought the disease for 
five years, suffering through painful rounds of chemotherapy and other invasive treatments, with 
Rafael at her side. Three days a week, without fail, Rafael drove Ina to doctor appointments and 
watched her snuggle through her u-eatment. Many of the letters submitted alongside this 
memorandum describe how tenderly Rafael cared for Ina in her final days and the eno1mous 
emotional and psychological toll her loss has taken on him. After learning that Ina's cancer was 
te1minal, Rafael was dete1mined to make a reality out of Ina's dreams of seeing the world: 
"[ e ]ve1y few months, Rafael would tell Ina to pack a bag; only disclosing the temperature of the 
location he had planned to take her. She knew nothing until she got on the plane. He gave her 
hope." (Ex. A at 16.) In Ina's final days, Rafael canied her from her sick bed to the bathroom 
and urged her doctors to transplant one of his kidneys if it could buy him just a little bit more 
time with her. (Ex. A at 20.) And indeed Rafael was told by Ina's doctors that the u·emendous 
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suppmt that he had shown to his wife had "extend[ ed] her days beyond the time of medical 
science." (Ex. A at 15.) Ina passed away on Janua1y 10, 2018. (PSR ,i 50.) 
After Ina's death, Rafael and his daughters coped in different ways. Although he 
tried to hide it, Rafael began drinking, in part as a way to disguise the ove1whelming loneliness 
he felt in the evenings without Ina's presence. (PSR at ,i 65.) As Chelsea explains in her letter to 
the Court, Ina's death "broke" something in Rafael. She watched as he "drown[ ed] himself in 
regrets" and became so "depressed ... that he couldn't even speak." (Ex. A at 3.) Rafael, 
however, tried to work through his crippling grief by honoring Ina's memmy in a manner 
consistent with the values that were impo1tant to her. Aware of how impo1tant early detection 
can be in cancer cases, Rafael donated hundreds of thousands of dollars to a hospital in 
Englewood in 2019, which was earn1arked to assist women of color, who lacked health 
insmance, to obtain cancer tests and screenings. (Ex. A at 11.) Ultimately Rafael's generosity 
inspired others to give, and the hospital was able to raise another $500,000 in 2020 to fund a 
breast screening program for women of color. Rafael had also learned, through his parish, that a 
local recreation center desperately needed some long-delayed repairs. Recalling Ina's belief in 
community and the power of local institutions to bring people together, Rafael spearheaded the 
renovations, refinishing the gym floor, installing new technology, replacing the lighting, and 
giving eve1ything a fresh coat of paint and a much needed deep clean. Ultimately the gym was 
named for Ina. (Ex. A at 15.) Rafael also donated more than $400,000 to renovate the 
community center at NAN Tech, a learning center in Newark, New Jersey, that is devoted to 
helping low-income Newark residents access and use technology they othe1wise might not be 
able to afford. For the last five years, Rafael has worked towards building a community center in 
Washington Heights that will be named after Ina and will allow adults to learn English and 
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computer skills and will provide underprivileged children with a safe space to go after school to 
receive tutoring and a hot meal. 
Both Chelsea and Samantha were strnng students-Chelsea had transfeITed to 
Fordham when her mother was sick and graduated with a degree in Psychology. She cuITently 
attends virtual classes at Pepperdine University to obtain her MBA. (PSR ,i 51.) Samantha 
graduated from George Washington University, earned a Master's in Public Health from 
Columbia University, and is cuITently earning her MBA from the University of Chicago's Booth 
School of Business. In addition to her studies, she works at the University of Chicago Medical 
Center. (Ex. A at 5.) Rafael, who was never a star student, is immensely proud of his daughters' 
achievements and credits them to Ina's strong influence. Knowing how important education was 
to Ina, and recalling the anxiety he had felt as a teenager at Cardinal Hayes, when he was 
perpetually uncertain as to whether he would be able to make the tuition payments, Rafael 
decided, after Ina's death, to establish 100 scholarships at Cardinal Hayes, in Ina's memory. 
These scholarships have allowed students who otherwise would never have been able to afford to 
attend Cardinal Hayes an opportunity to receive an excellent high school education. (Ex. A at 
13.) 
In addition to financing the scholarship program at Cardinal Hayes, Rafael and his 
family established a nonprofit called Reaching New Heights, which is dedicated to providing 
students of color with an introduction to careers in different professions, including business, 
politics, and media. Chelsea cuITently works with her father to rnn Reaching New Heights and 
they have been able to provide some truly exceptional opportunities to high school students from 
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low income neighborhoods.1 By way of just one example, in 2021, Reaching New Heights paid 
for a number of students at Cardinal Hayes to take a one-day aviation course, where they 
received firsthand experience flying in the cockpit of a plane with a pilot. (See Exhibit C, 
Reaching New Heights Webpage.) In addition to Reaching New Heights, Rafa.el has also found 
ways to mentor those in his community who need a friend. For example, as Sweta Shah explains 
in her letter to the Comt, Rafa.el has taken her teenage son., who suffers from autism, under 
his wing. This relationship is impmtant to both of them: despite the fa.ct that- needs 
significant assistance, including help cleaning himself after he uses the bathroom, Rafa.el has not 
shied away from spending significant time with- Indeed, this past year, he and-took 
a special trip by themselves to the City-to the Bronx Zoo-to see the holiday lights and 
decorations because Rafael knew that- ve1y much wanted to go but that the excursion 
would be a challenge for-'s family. (Ex. A at 9.) 
Rafael remains extraordinarily close with his two daughters. Chelsea lives close 
to her father and has two small children, two-year old., and a baby 
who was born 
this past April. As Chelsea explained to Probation, Rafael takes care of his grandchildren three 
days a week and he is an extraordinarily impo1tant person in her life. (PSR il 55.) As she 
explains in her letter to Your Honor, she wonies that a long custodial sentence for her father will 
send her "into a. dark place" where she would "truly be lost." (Ex. A at 3; PSR il 55.) Samantha., 
now 25, is equally close with Rafael. She identifies her father as "one of the greatest inspirations 
in [her] life," and describes him as "the most caring person I have ever met." (Ex. A at 5.) 
Inspired by her father's lifelong work helping underprivileged communities, Samantha. has been 
11 See Reaching New Heights Inc., https://www.youtube.com/watch?v=uLlocSCNEAk, YouTube (last accessed 
June 22, 2023); Men in the Media Panel- Brought to you by Reaching New Heights Inc., YouTube, 
https://www.youtube.com/watch?v=UuRmelpUJBM (last accessed June 22, 2023). 
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driven to use her education and talents to provide healthcare to immigrant and minority families 
who often lack access to medical care. 
3. 
Mr. Martinez's Career 
Having grown up admiring the diverse business owners in his native Washington 
Heights, Rafael dedicated his career to helping small, minority businesses thrive. After working 
for a couple years for local car dealerships, a friend helped Rafael get a job as a representative 
for a fashion designer named Emil Rutenburg. (PSR ,r,r 75-77.) During this time, Rafael became 
familiar with the concept of "purchase order financing," which is a financing anangement in 
which businesses that lack liquidity to satisfy large customer orders use a third party to provide 
sho1t-te1m financing, backed by the purchase order as collateral. Rafael eventually went into 
business on his own. Using startup capital from wealthy investors, Rafael founded Republic 
Group, LLC, and later MBE Capital Paitners, which focused on providing short te1m financing 
solutions to women and minority-owned small businesses that serve as vendors to Fortune 500 
corporations. Rafael has been doing this type of work for 30 yeai·s. 
Many of the small businesses that Rafael worked with over the years have written 
to the Comt to describe how instrnmental his assistance has been in ensuring that their 
businesses thrived. Olu Victor Longe, owner of a Michigan-based minority tempora1y staffing 
agency describes how, in 2016, Rafael provided Longe's business with working capital. Longe 
states that "[ w ]ithout Mr. Rafael Ma1tinez[ 's] help, it could have been impossible to grow our 
company because not only did he find us access to working capital; he constantly for a period of 
three years mentored my partner and I in growing the business." (Ex. A at 25.) John Henderson, 
the CEO and President of a minority-ce1tified logistics company recalls how "[ f]rom eai·ly 2016 
through most of 2018 my company obtained much needed working capital financing through 
[Rafael's] business MBE Capital. This financing supported my company's growth to more than 
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$50 million in revenue and gave us the means to transition to a traditional finance institution. 
The availability of these services was difficult to obtain but Ra( f]ael was knowledgeable and able 
to provide the financing we needed. I truly believe that we could not have survived without his 
assistance." (Ex. A at 27.) 
Jose Arias, the owner of a New York construction business, explains that "Rafael 
Ma1t inez and his film have been instrumental in our success as both financial suppo1t and more 
importantly served as a personal mentor. He has spent many hours of his time instructing and 
guiding me on achieving higher levels of success as minority and overcoming the challenges that 
we face as both a small business and a minority." (Ex. A at 26.) These are only a few examples 
of the many minority small businesses that Rafael has assisted during the course of his three-
decade career. See also (Exhibit D, Video testimonial of David Segura) (explaining how MBE 
helped Mr. Segura's business quickly raise money to make investments and hire personnel); 
(Exhibit E, Video testimonial of Frank Garcia) (president of environn1entally friendly technology 
company and President of Hispanic Chamber of Commerce describing how financing obtained 
from MBE helped his business get a contr·act with Amazon); (Exhibit F, Video testimonial of 
Gurndas Sarkar) (describing how Rafael helped his software business obtain financing in 2015, 
which allowed the business to maintain and expand payroll); (Exhibit G, Video testimonial 
compilation). 
Long before the Covid-19 pandemic, Rafael had earned a positive reputation in 
the minority small business community for his work providing small businesses with access to 
capital. Rafael was a member of the New York & New Jersey Minority Supplier Development 
Counsel ("NYNJMSDCC"), which is a professional non-profit organization that certifies 
minority small businesses and provides those businesses with resources to help them grow. 
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TeITence Clark, the President and CEO ofNYNJMSDC, has written to the Comt to explain that 
Rafael was one of the first people he met who "shared a passion for assisting in the growth and 
development of minority business owners as they look to scale their businesses" and, in the more 
than eight years that they have known one another, Rafael has "always been a respected person 
in this endeavor." (Ex. A at 24.) Mr. Clark explains how he pa1tnered with Rafael to provide 
affordable capital to ce1tified minority small businesses in NYNJMSDC's database and that, 
under the program, Mr. Clark's clients were able to "elevate" their businesses thanks to Rafael's 
help. (Exhibit H, Testimonial video of TeITence Clark.) 
Rafael's company also pa1tnered with the federal government to provide small 
minority businesses with access to capital years before Covid-19 or the PPP program. In 2017, 
MBE entered into a memorandum of understanding with the Depa1tment of Commerce's 
Minority Business Development Agency ("MBDA") to provide over $1 billion in financing to 
companies that were clients ofMBDA "Business Centers." (Exhibit I, Press release announcing 
MOU.) The paitnership was extremely successful. A yeai· after entering into the memorandum 
of understanding, MBE was awarded MBDA's "Access to Capital" award after financing $970 
million in accounts receivables and helping its clients grow an average of 31 %. (Exhibit J, 
MDBA's Access to Capital Award Press Release.) 
The record before the Court makes clear that Rafael Martinez is a hardworking, 
generous man who cares deeply about others. His extraordinaiy generosity and kindness 
distinguishes him from most criminal defendants. These are the same characteristics that Your 
Honor has found deserving of mercy in other cases. See, e.g., Tr. at 47, United States v. 
Guzzone, 20-cr-354 (LJL), (S.D.N.Y. Jan. 19, 2021), Dkt. 28 (imposing below Guidelines 
sentence in tax evasion case based, in pa1t, on letters that "paint a remarkably consistent picture, 
16 
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paint a picture of somebody who is an extraordinarily hard worker, who came from a background 
that was not a privileged one, with a single mother. They paint a picture of a person who is a 
good family man, who cares deeply about his wife and whose wife cares deeply about him, cares 
about his mother and his in-laws, and his son, and who cares about his neighbors and 
colleagues."); Tr. at 47, United States v. Huberfeld, 16-cr-467 (LJL) (S.D.N.Y. Sept. 28, 2021), 
Dkt. 420 (imposing a sentence of 7 months for conspiracy to commit wire fraud and finding that 
defendant's "long history of giving argues strongly in favor ofleniency." ); Tr. at 44, United 
States v. Poleviknv, 1 :21-cr-00774 (LJL) (S.D.N.Y. May 3, 2022), Dkt. 31 (imposing below 
Guidelines sentence after finding that letters from friends and family "speak to a person [who] 
thinks about and who cares about and who devotes time and energy an[ d] effo1i to causes [ and] 
people outside of himself and that speaks ve1y highly of [the defendant] and is a factor I need to 
think about and do think about."). 
B. 
The Nature and Circumstances of the Offense 
1. 
Offense Background 
While Rafael takes full responsibility for his mistakes, it is imp01iant for the 
Comito understand the context in which the offense occurred. On March 29, 2020, the federal 
government enacted the Coronavirns Aid, Relief, and Economic Secmity ("CARES") Act. (PSR 
,r 11.) One of the purposes of the CARES Act was to assist small businesses maintain payroll 
and satisfy other expenses through the PPP, in order to stabilize the American economy and 
prevent a catastrophic depression dming an unprecedented worldwide crisis. (Id.) Congress 
crafted the PPP program to allow businesses to receive unsecmed loans that the businesses were 
required to use on payroll costs, m01igage interest, rent, and/or utilities. (Id. at ,r12.) Those 
loans would then be forgiven if the funds were spent appropriately. (Id.) 
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The federal government did not provide PPP loans to small businesses directly. 
Instead, commercial lenders issued loans that were guaranteed by the SBA. (Id. at ,i 12.) 
Congress authorized up to $349 billion in SBA-guaranteed PPP loans on March 29, 2020, a 
second round of $300 billion in PPP funding on April 24, 2020, and additional rounds of funding 
that ended on May 31, 2021. (Id. at ,i 11.) 
Prior to the Covid-19 pandemic, non-traditional lenders like Rafael's company, 
MBE, which specialized in purchase order financing, were generally ineligible to pa1ticipate in 
SBA lending programs. As with other SBA loan progralllS, traditional banks issued the vast 
majority of the original $349 billion that Congress authorized for PPP loans.2 Businesses with 
pre-existing banking relationships-which also tended to be larger companies predominately 
owned by white entrepreneurs-had an easier time obtaining PPP loans from these traditional 
lenders than did small businesses that did not have such relationships.3 According to one study 
conducted by economists at the Federal Rese1ve Bank of New York, "95 percent of large bank 
applicants and 83 percent of small bank applicants had a prior relationship with their PPP 
lenders . . . . These bonowers had more employees, higher credit scores, and were more likely to 
have white owners."4 As a result, during the first round of PPP, minority-owned and 
traditionally underse1ved businesses had difficulty obtaining loans. 
The federal government received loud and well-deserved criticism for its 
distribution of the first round of PPP funding. Traditional banks had distributed large pmtions of 
2 U.S. Gov't Accountability Off., GAO-21-601 Paycheck Protection Program Program Changes Increased Lending 
to the Smallest Businesses and in Underserved Locations, at 18 (Sept. 2021) (attached hereto as Exhibit K). 
3 Jessica Battisto et. al, Who Received PPP Loans by Fintech Lenders? Libetty Street Economics, (May 27, 2021) 
(attached hereto as Exhibit L). 
4 Id. 
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PPP funding to corporations like Shake Shack,5 the Los Angeles Lakers,6 and Ritz-Carlton7, 
while the businesses that needed the money the most-and which employed almost half of all 
Americans-were left without assistance, especially those owned by self-employed individuals, 
minorities, women, and veterans.8 
Congress made several changes to the PPP program in response to the public's 
criticism and in an effo1t to get funding to deserving small businesses that had been excluded 
from the first round of funding. One of these changes was to permit new, non-traditional lenders 
to participate in the second round of PPP, including firms like Rafael's business.9 Indeed, the 
SBA appeared eager to approve nonbank lenders, like MBE, that had a proven history of 
providing financing solutions to small minority-owned businesses. For example, on April 21, 
2020, while MBE's lender application was pending, Susan Streich, the SBA's Director of the 
Office of Credit Risk Management, emailed another SBA employee, Paul Kiiwin, to check the 
status ofMBE's application and Mr. Kirwin thereafter confirmed in an internal SBA email that 
the agency wanted to "prioritize the review of' MBE's application "[d]ue to [its] active hist01y 
of making 'smaller' small business loans."10 At the same time, Dr. Christopher Metzler, the 
Senior Vice President of Corporate Diversity, Equity and Inclusion at the National Urban 
5 Alicia Wallace, Shake Shack, Ruth 's Chris and Other Chain Restaurants Got Big PPP Loans When Small 
Businesses Couldn't, CNN Business (Apr. 20, 2020) (attached hereto as Exhibit M). 
6 Kevin Amovitz, Lakers Got Money from Loan Program, Returned It, ESPN (Apr. 27, 2020) (attached hereto as 
ExhibitN). 
7 Shannon K. Crawford, Luxury Hotels Benefittedfrom PPP Loans. So Did the Investment Trusts That Own Them, 
ABC News (Apr. 29, 2020) (attached hereto as Exhibit 0 ). 
8 Ex. K at 1; The U.S. Chamber of Commerce, The State of Small Business Now (April 10, 2023) (attached hereto as 
Exhibit P). 
9 Ex Kat 20. 
10 April 21, 2020 email from Susan Streich to Paul Kirwin (attached hereto as Exhibit Q); April 21, 2020 email from 
Paul Ki.tw in to Scott Inouye (attached hereto as Exhibit R). 
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League, was discussing MBE's application with the SBA's top official, Administrator Jovita 
Cananza, and f01warded the application for her personal review.11 
Ultimately, SBA staff prepared an "Action Memo" discussing how to proceed 
with MBE's nonbank lender application. The Action Memo raised concerns with MBE's 
application, including that: 
• 
MBE "ha[d] not met the necessa1y qualifications to process, close, disburse, and 
service PPP loans." 
• 
Because MBE "ha[ d] not provided 2019 Audited Financials, it [was] not possible to 
determine [its] [loan] originations, and the 2018 Financials show inconsistencies." 
• 
"Given the sho1t-te1m nature of the loans[] it specializes in, as well as the relatively 
few clients it services, and missing 2019 financials it is impossible to verify 
originations." 
• 
"It seems unlikely that [MBE Capital] would be able to quickly and efficiently 
process a meaningful volume of applications if it were approved as a PPP loan non-
bank lender."12 
Despite these reservations about MBE's application, and without raising these issues with MBE, 
the SBA drafted a letter approving the application the ve1y next day, a fact which suggests that 
the SBA's priority was to find lenders willing to work with smaller and minority-owned 
businesses, who could immediately begin disbursing much-needed federal loans to these 
stru ggling entities.13 
As soon as MBE was approved as a nonbank lender, it began issuing PPP loans to 
small businesses, consistent with the SBA's expectations. While we do not dispute that Rafael 
submitted inaccurate info1mation to the SBA regarding MBE's financial statements in MBE's 
11 April 22, 2020 email rom Clui s Metzler to Gail HlUTis-Beny (attached hereto as Exhibit S); Biography of Clu·is 
Metzler (attached hereto as Exhibit T). 
12 SBA Action Memorandum at 2-3, dated April 22, 2020 (attached hereto as Exhibit U). 
13April 23, 2020 email from P. Kirwin to S. Streich (attached hereto as Exhibit V). 
20 
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nonbank lender application-and that such conduct was wrong-it is impmiant to note that MBE 
was not issuing loans from the assets reflected on the financial statements submitted to the SBA. 
In other words, MBE's assets (or lack thereof) had no bearing on its capacity to issue loans to 
bo1rnwers in need. Rather, MBE obtained funding from Equitrnst Life Insurance Company to 
finance the first $100 million in PPP loans, and then obtained funding from the Federal Reserve 
Bank's Payment Protection Liquidity Facility (the "PPPLF") to issue additional PPP loans. (PSR 
,r,r 14, 18.) Equitrnst lost nothing. By September 2020, MBE had repaid Equitrnst its $100 
million investment, as well as $3 million in fees that it earned from the SBA for issuing the PPP 
loans. (PSR ,r 18.)14 In total, Equitrnst saw a profit of almost $4.3 million as a result of its 
partnership with Rafael and MBE. 
In addition to the $100 million in capital that Equitrnst invested in MBE's PPP 
lending effo11s, MBE also obtained $832 million in capital from the PPPLF to make additional 
loans. (PSR ,r 18.) The entire purpose of the PPPLF was to provide liquidity to small lenders 
like MBE so that they could make PPP loans.15 As one economist at the Federal Rese1ve Bank 
of New York noted, one "issue affecting small lenders' incentives to pa1iicipate in the PPP was 
14 See also September 3, 2020 email from R. Maitinez to V. Bhatt and K. Matheny (attached hereto as Exhibit W). 
15 In its responses to Mr. Martinez's objections to the PSR, the Government states that MBE "completely subve1ted 
the structure ai1d purpose of the PPPLF' by "pledg[ing] PPP loans that had not yet been issued in seeking fonding 
from the PPLF program, and then us[ing] the fonding the Fed provided to fond the ve1y loans that were supposed to 
serve as collateral." (ECF 74 at 32.) MBE utilized the PPPLF in precisely the way representatives from the Federal 
Reserve publicly described how the program was designed to function. In a clear diagram explaining "How the 
PPPLF works," the Federal Reserve explained that the Federal Reserve Bank would send the money to the PPP 
lender which would, in tum, provide that money to the small business. See Stefanie Aschenbrenner et al., Federal 
Reserve Bank of Minneapolis, The Fed's emergency lending supports the Paycheck Protection Program (Aug. 2, 
2021) https://www.minneapolisfed.org/article/202l/the-feds-emergency-lending-suppmts-the-paycheck-protection-
program#_ftn2; see also Federal Reserve Bank of Minneapolis, Conversations with the Fed: Paycheck Protection 
Liquidity Facility, at 11 :40 https://www.youtube.com/watch?v=6YlYOgtnKiU, YouTube (last accessed June 22, 
2023) (explaining that, under the PPPLF, the lender pledges to the Fed the ve1y loan for which the lender is seeking 
an advance, and then the lender issues the loan "on the back end" after it receives the funds from the Fed, with the 
tenns of the Fed's advance to the lender "exactly match[ing]" the tenns of the loai1 the lender subsequently issues to 
the PPP bon-ower). As the Federal Reserve explained the program, the whole purpose of the PPPLF was to 
encourage lenders who did not have the necessa1y balance sheet capital to bonow from the PPPLF and use those 
ftmds to issue loans. 
21 
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their balance-sheet capacity . . . [Thus,] the Federal Reserve, with the backing of the Secretaiy of 
the Treasmy announced on April 6, 2020, that it would establish [the PPPLF] to facilitate 
lending to small businesses through the PPP."16 
Of critical impo1tance, not a single cent of Equitrnst's $100 million or the $832 
million of PPPLF funds went into Rafael's pocket. Rafael and MBE used that money to issue 
PPP loans to minority-owned small businesses who desperately needed it-exactly as intended 
by the SBA and Congress. While MBE, like many other nonbank lenders inundated with PPP 
applications, at times snu ggled to keep up with demand (resulting in some unhappy PPP 
bmrnwers), reviews left by many MBE bonowers attest to the critical role that those loans 
played in helping their businesses smvive the pandemic: 
• 
Marcus Fanell wrote that his loan "helped us get through a ve1y hard period." 
• 
William Perla wrote that MBE was "Great[.] [T]hey were very helpful so we can 
keep up with the business." 
• 
Sheron Booth wrote: "You help[ ed] my business to stay afloat by being able to pay 
ongoing expenses while I was economically impacted when my bank failed me with 
PPP. Thank you MBE[.] 
• 
Kowondra Price wrote that the loan her business received from MBE "Save[ d] us 
from closing." 
• 
Cal D. Wentwmth wrote that the PPP loan he received from MBE "stopped layoffs." 
Antonio Moore wrote: "Thanks to [MBE] we were able to stay afloat during the 
pandemic." 
• 
Patty Norona wrote that MBE "made the PPP process quite easy. I thank you for 
taking the time to assist a small business owner." 
• 
Donnean Bolds wrote that MBE "helped me to keep my business afloat for now." 
• 
Ramiro Maitinez wrote that the loan his business received from MBE "Kept my shop 
open during the pandemic." 
16 Desi Volker, The Paycheck Protection Program Liquidity Facility, Federal Reserve Bank of New York Economic 
Policy Review 28, at 190 (June 2022) (attached hereto as Exhibit X). 
22 
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• 
Tyrone Johnson wrote that MBE's help "Means the world to me and [I] appreciate 
yom support and assistance!" 
• 
Angela Amoroso wrote that the PPP loan her dance studio received from MBE 
"saved us! After 40 years in business looking into an abyss is frightening." 
• 
Carl Webb wrote the MBE "helped my business stay afloat dming this unprecedented 
pandemic. Process an[ d] timing eliminated a lot of stress. "17 
The above reviews reflect only a small percentage of the businesses that received critical PPP 
funds through MBE. After it became an approved lender, MBE issued loans to approximately 
36,600 small businesses, (PSR il 18), many of whom could not obtain a PPP loan from a bank. 
One PPP bonower, Ricardo Villaneal, the owner of the ltty Bitty Inn in No1th Bend, Oregon-a 
complete stranger to Rafael except for his interactions with MBE during the PPP process-
describes in a letter to the Comt just how meaningful Rafael's eff 01ts were to helping businesses 
like his weather the pandemic. Mr. Villaneal, who has been the innkeeper of his family nm 
business since 2014, strnggled to get a loan from traditional banks after Oregon mandated the 
shut down of hotels and motels in the state. The representatives of those traditional banks 
appeared to Mr. Villaneal to be "complacent, uninterested, and disconnected" to the dire 
situation that his business faced. (Ex. A. at 37.) Rafael and MBE, on the other hand, 
"demonstrated empathy" during the darkest days of the pandemic and "were respectful and 
quick-to-act" in helping Mr. Villaneal's business find financial relief. (Ex. A at 37-38.) Mr. 
Villaneal credits Rafael's "professional grit and heart" with saving his business "when it seemed 
that no one else would." (Ex. A at 38.) 
While the PSR repo1ts that MBE was "unqualified to underwrite loans," see PSR 
il 20, in fact, as detailed above, MBE had years of experience providing working capital to small 
businesses in need and had even pa1tnered with the federal government to lend close to a billion 
17 Reviews MBE received from PPP bonowers (attached hereto as Exhibit Y). 
23 
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dollars to small businesses three years before the pandemic. See supra at 14-16. Although MBE 
experienced some challenges in getting loans out quickly to bonowers and detecting fraudulent 
applications, that was a struggle shared by nearly all PPP lenders. From May 2020 through 
August 7, 2021, the SBA's Office of General Counsel received at least 2,800 inquiries from PPP 
lenders-pa1ticularly from non-traditional lenders like MBE who "generally had less experience 
with SBA and dealing with fraud,"-regarding the en01mous volume of PPP applications.18 The 
SBA Inspector General has since concluded that the agency did not provide adequate guidance to 
lenders about how to detect fraud. That "lack of specific guidance for lenders" increased "the 
risk of guaranteeing and forgiving PPP loans for potentially fraudulent and ineligible 
applicants."19 Moreover, given the nature of the pandemic, the federal government prioritized 
the speedy distribution of funds to snuggling businesses over the detection of fraudulent 
applications. As the Inspector General has explained, PPP lenders were not required to conduct 
extensive due diligence on applicants and were pennitted to rely on "bonower ce1tifications" of 
eligibility.20 Given these relaxed criteria, a large amount of potentially fraudulent loans were 
processed, by traditional banks and nonbank lenders alike. Indeed, the Inspector General has 
reported that in one five-month period, lenders provided $692 million in duplicate loans.21 In 
total, the SBA suspects that over 70,000 loans were issued to potentially ineligible bmTowers.22 
18 SBA Inspector General Report, SBA's Handling of Potentially Fraudulent Paycheck Protection Program Loans, 
Rep01t No. 22-13 at 9 (May 26, 2022) (attached hereto as Exhibit Z). 
19 Id. at 10. 
20 Id. at Appendix C, pg. 2. 
21 SBA Inspector General, Flash Repott Duplicate Loans Made Under the Paycheck Protection Program, Repo1t No. 
21-09 at 2 (March 15, 2021) (attached hereto as Exhibit AA). 
22Ex. Z at 1 
24 
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Despite the fact that PPP lenders were not required to conduct extensive diligence 
on prospective bonowers, Rafael and his team at JvIBE did their best to avoid funding ineligible 
applications, despite pressure from the SBA to get loans to small businesses quickly. For 
example, in response to inquiries from the SBA about why a pa1ticular loan had not been funded, 
Rafael explained that JvffiE had flagged 368 loan applications that did not have any of the 
required tax documents and that MBE's employees were hying to work with bonowers to obtain 
the required documentation.23 One rep01t detailing the loans that were processed through MBE 
shows that the company declined to fund 18,368 applications totaling over $617 million for 
reasons such as suspected fraud or because a bonower had submitted multiple applications.24 
The SBA expressed gratitude to Rafael for his effo1ts to help small, underserved 
businesses obtain PPP loans. Indeed, in August 2020, the SBA informed Rafael that JvffiE and 
Equitrnst had been nominated for the agency's "National Award." In contacting Rafael about 
the award, the SBA noted that Rafael had "been incredible to work with" and that MBE's 
pa1tnership with Equitiust "has been a game changer for so many."25 
Processing and issuing tens of thousands of PPP loans to small businesses in need 
was a tremendous undertaking, which required Rafael to hire more people at MBE. Knowing 
that he would need to retain more employees, Rafael applied for a PPP loan himself, from Bank 
of America. In doing so, he made a decision he will regret for the rest of his life: on his PPP 
application, Rafael overstated the number of employees employed by JvIBE and his payroll costs. 
(PSR ,r 16.) However, sh01tly after obtaining the PPP loan of approximately $283,000, MBE did 
23 May 20, 2020 email from R. Maitinez to M. Schindler (attached hereto as Exhibit BB). 
24 April 8, 2022 email from Hubspot to Kenya Shiver (attached hereto as Exhibit CC). 
25 August 12, 2020 email from Ashley Bell to Rafael Maitinez (attached hereto as Exhibit DD). 
25 
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substantially increase its payroll. MBE's payroll and bank records for 2020 show that MBE paid 
17 employees over $250,000 in payroll in 2020.26 This amount was approximately $130,000 
greater than the payroll that Rafael represented to Bank of America when he applied for the PPP 
loan. (PSR ,r 16.) In other words, the PPP loan application actually underestimatedMBE's 
actual payroll costs for 2020, even if the info1mation provided was overstated at the time it was 
submitted. Rafael has since withdrawn MBE's PPP loan forgiveness application and paid back 
the full amount of the loan. 
By setting forth the above context, we do not mean to make light of the offenses 
for which Rafael has pled guilty. Providing false info1mation to the federal government and 
financial institutions is a selious crime and Rafael is deeply ashamed of his actions. What we 
wish to convey, however, is that while Rafael understood that paiticipating in the PPP program 
could inme to his financial benefit, he was also motivated to-and actually did-help thousands 
of people in need. That makes Rafael's conduct different than most wire fraud cases, where 
defendants prey on helpless victims and act solely from greed. For the reasons set f01th below, 
the Comt should consider these differences, as pa1t of its consideration of the Section 3553(a) 
factors, as a meaningful justification for a non-Guidelines sentence. 
2. 
The Nature and Circumstances of the Offense Call for 
Leniency 
26 The Government contends in its responses to Mr. Martinez's objections to the PSR that it "cannot verify the 
sourcing or accuracy of the records," submitted to Probation, which documents MBE's actual payroll for 2020. 
(ECF No. 74 at 29). But the bank records that the Government produced to Mr. Mai1inez in discove1y show that, 
less than a month after MBE received its PPP loan from Bank of Ame1ica, it transfe1Ted $600,000 to another MBE 
bank account from which it made payroll payments. Those bank records, in combination with the W-2 fonns for 
each ofMBE's employees and MBE's internal payroll detail report, demonstrate that MBE did use the funds it 
received from Bank of Ame1ica for payroll. (See Exhibit EE, W-2 fonns for MBE employees for FY 2020; Exhibit 
FF, May 2020 Bartle of America Records; Exhibit GG June 2020 Bank of America Records; Exhibit HH, JP Morgan 
Chase Bank Records from June 8, 2020 to August 19, 2020; Exhibit II JP Morgan Chase Bank Records from August 
14, 2020 to December 31, 2020; Exhibit JJ, MBE Capital Payroll Detail Repo11). 
26 
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The Guidelines sentence of 60 months is driven almost entirely by the "loss" 
amount. The base offense level is 6-which under the Guidelines, results in a recommendation 
of no prison time for a first offender like Rafael. However, Rafael's offense level was increased 
by 24 levels based on the fees earned by MBE in coI1I1ection with the loans it issued. (PSR ,r 
28.) We respectfully contend that an increase of 24 levels based upon the "losses" in this case 
vastly overstates the hue nature of the offense and is inconsistent with the bedrock principles of 
sentencing, as espoused in Section 3553(a). 
The Guidelines applicable to economic crimes have been consistently criticized, 
including by experienced members of the judicia1y. In November 2014, an ABA Criminal 
Justice Task Force on the Refo1m of Federal Sentencing for Economic Crimes, which included 
Judge Gerard Lynch and Judge Jed Rakoff, submitted a proposal to the Sentencing Commission 
seeking substantial revisions of the Sentencing Guidelines for economic crimes. (Exhibit KK, 
"A Report on Behalf of the American Bar Association Criminal Justice Section Task Force on 
the Refmm of Federal Sentencing for Economic Crimes," American Bar Association, Nov. 10, 
2014).) The ABA Task Force obse1ved that, under ce1tain circumstances, the Guidelines may 
produce an offense level that substantially overstates the seriousness of an offense. Specifically, 
the ABA Task Force noted that 
Where the motive for the offense was not entirely predato1y, where the loss was 
largely intended rather than actual, where the defendant's gain from the offense 
was significantly less than the loss, where the offense was of limited 
sophistication or dmation, 
where significant and unusual 
extenuating 
circumstances conu·ibuted to the commission of the offense, or where the 
defendant took significant steps to mitigate the ha1m caused by the offense, the 
guidelines may produce an offense level that substantially overstates the 
seriousness of the offense. If so, a downward depa1ture may be wananted.27 
27 See Testimony from the American Bar Association before the United States Sentencing Commission, at 14 
https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-hearings-and-
meetings/20150312/Felman.pdf (March 12, 2015). 
27 
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In Rafael's case, the nature and circumstances of the offense justifies a downward 
variance from a 60-month Guidelines sentence for at least two reasons. 
(a) 
There Was No Predatory Motive 
First, the conduct for which Rafael was convicted falls outside the hea1tland of 
typical fraud cases because he lacked a predat01y motive. This is not a typical fraud case in 
which an offender preys on innocent victims to steal money from them. Rather, the gravamen of 
the offense conduct is that Rafael provided inaccurate inf01mation to the SBA in order to obtain 
a license for his company, MBE, to operate as a nonbank lender of PPP loans. The critical fact 
that justifies a substantial downward variance is that Rafael actually did provide PPP loans to 
businesses in need. In other words, even though Rafael obtained a license to act as a PPP lender 
by providing inaccurate inf01mation to the SBA, he actually earned the fees he generated by 
perf 01ming the services that the SBA desired. And he did so by providing loans to small 
businesses that were being ignored by traditional lending institutions. 
In this way, Rafael's conduct constitutes what the ABA Task Force described as a 
"gatekeeping" offense. Such "offenses are not specifically intended to cause loss or even to shift 
the risk of loss. Instead, they violate so-called 'gatekeeping' requirements intended generally to 
prevent practices that create potential loss or a risk of loss." (Ex. KK at 3 .) As an example, the 
ABA Task Force describes "billing Medicare for medically necessaiy goods and services that are 
actually provided without the appropriate third-pa1ty verification of medical necessity" as a 
prototypical gatekeeping offense. Id. Gatekeeping offenses "are generally at the lower level of 
culpability" when compared to crimes that are designed to intentionally impose a loss on, or 
purposely shift the risk of loss to, the victim. Id. 
Rafael's conduct violated the gatekeeping requirements that the SBA imposed on 
nonbank lenders to ensure that they were qualified to participate in the PPP program. He did not 
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set out to defraud innocent victims. The fact that Rafael acted out of a desire to-and actually 
did-help small businesses in need dming an unprecedented pandemic justifies a sentence 
significantly lower than that calculated under the Guidelines. 
(b) 
The Loss Amount Overstates the Seriousness of the Offense 
Second, the loss amount in this case overstates the seriousness of the offense 
because the "losses" here are the bank fees earned by MBE for distributing PPP loans. While 
MBE's license to provide PPP loans was obtained via an application that contained false 
infonnation, MBE, once licensed, did the work to distribute real loans to real Americans in a 
desperately underserved community, who ve1y much needed the funds. As such, the fees earned 
by MBE for this work are different than the typical "loss" ordinarily at issue in wire fraud cases. 
Fmthermore, as many critics have pointed out, the approach to "loss" that has 
been incorporated into the Guidelines exacerbates the potential for an unfair sentence. Both 
scholars and judges have observed that the way Section 2B 1.1 of the Guidelines calculates loss 
for economic crimes routinely results in "arbitra1y, dispropo1tionate, and often draconian 
sentences" especially for "first-time offenders of economic crimes." Bany Boss & Kara Kapp, 
How the Economic Loss Guideline Lost its Way, and How to Save It, 18 Ohio St. J. of Cr. Law 
605, 605-06 (2021). The cmTent loss table "has an outsized role in determining the length of an 
economic crime offender's sentence," and recommends "extraordinarily high sentences . . . in 
high-loss cases," which "result[s in] overemphasis on loss that overstates offenders' culpability." 
Id. at 606; see also United States v. Johnson, No. 16-CR-457-1 (NGG), 2018 WL 1997975, at *3 
(E.D.N.Y. Apr. 27, 2018) ("[T]he Sentencing Commission's loss-enhancement numbers do not 
result from any reasoned determination of how the punishment can best fit the crime, nor any 
approximation of the moral seriousness of the crime."); United States v. Gupta, 904 F. Supp. 2d 
349, 351 (S.D.N.Y. 2012) ("By making a Guidelines sentence tmn, for all practical purposes, on 
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this single factor [loss or gain], the Sentencing Commission ignored[§ 3553(a)] and . . . 
effectively guaranteed that many such sentences would be inational on their face."); United 
States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006) (criticizing "the inordinate 
emphasis that the Sentencing Guidelines place in fraud cases on the amount of actual or intended 
financial loss" without any explanation for "why it is appropriate to accord such huge weight to 
[this] factor[]"). 
For this reason, many comts in this Circuit have imposed substantial downward 
variances in fraud cases involving paiticularly high Guidelines recommendations, similar to 
those that the loss amount table recommends in Rafael's case. 
• 
United States v. Gupta, 904 F. Supp. 2d 349 (S.D.N.Y. 2012) (imposing 24-month 
sentence in case where Guidelines range was 78-97 months); 
• 
United States v. Milton, No. 3:06-cr-00137 Dlet.1216 (D. Conn. Jan. 30, 
2009)(Judgment); Diet. 1164 (D. Conn. Oct. 31, 2008) (Ruling on Loss Calculation, 
Victim Enhancement, and Restitution) (imposing 48-month sentence in case where the 
Guidelines range was life imprisonment); 
• 
United States v. Ferguson, No. 3:06-cr-00137, Diet. 1199 (D. Conn. Dec. 31, 2008) 
(Judgment); Dkt. 1164 (D. Conn. Oct. 31, 2008) (Ruling on Loss Calculation, Victim 
Enhancement, and Restitution) (imposing 24-month sentence in case where Guidelines 
range was life imprisonment and loss amount was $544 million); 
• 
United States v. Whittier, No. 1:07-cr-0087, Diet. 12 (S.D.N.Y. Oct. 18, 2007) 
(Judgment); 1:07-cr-0087, Diet. 14 (S.D.N.Y. Nov. 6, 2007) (Tr.) (imposing 36-month 
sentence in case where Guidelines range was 188-235 months and loss amount was $88 
million); 
• 
United States v. Argo, No. 1:07-cr-00683, Diet. 14 (S.D.N.Y. Jan. 23, 2008) 
(Government's Sentencing Memorandum); Diet. 16 (S.D.N.Y. Jan. 29, 2008) (Judgment) 
(imposing six-month sentence in case where Guidelines range was 97-121 months and 
stipulated loss amount was $1-2.5 million); 
• 
United States v. Ghavami, No. 1:10-cr-01217, Dkt. 374-3 (S.D.N.Y. May 8, 2013) 
(Guidelines Calculation); Dkt. 374-6 (S.D.N.Y. May 8, 2013) (Loss Calculation); Diets. 
384, 385, 389 (Judgments) (imposing sentences of 3 years, 18 months, and 16 months on 
codefendants in an over $9 million fraud scheme where the Guidelines ranges were 235-
293 months, 210-265 months, and 135-168 months respectively); 
30 
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• 
United States v. Chow, No. l 7-cr-667, Dkt. 161 (S.D.N.Y. Jan 17, 2019) (Tr.) (imposing 
three-month sentence where loss amount was $5 million and Guidelines range was 63-78 
months); 
• 
United States v. Hastings, No. l:20-cr-00534, Dkt. 97 (S.D.N.Y. Nov. 8, 2021) 
(Government's Sentencing Memorandum); Dkt. 102 (Nov. 29, 2021) (Judgment) 
(imposing 36-month sentence where loss amount was over $9 million and Guidelines 
calculation was 10 years); 
• 
United States v. Archer, No. l:16-cr-00371, Dkt. 1005 (S.D.N.Y. March 4, 2022) (Tr.) 
(imposing a sentence of a year and a day where loss amount was over $25 million and 
Guidelines sentence was 108 to 135 months); 
• 
United States v. Cooper Morgenthau, No. l:23-cr-00002, Dkt. 13 (S.D.N.Y. April 17, 
2023) (Government's Sentencing Memorandum); Dkt. 15 (S.D.N.Y. May 1, 2023) 
(Judgment) (imposing 36-month sentence where loss amount was over $5 million and 
Probation had calculated a Guidelines range of 87-108 months). 
The Guidelines sentence here is driven entirely by the 24-level increase attributed 
to the loss amount; the base offense of 6 would result in a recommendation of probation for a 
first time offender like Rafael. The Second Circuit has found that, in circumstances like these, a 
significant downward variance from a Guidelines sentence is appropriate. United States v. 
Algahaim, 842 F.3d 796, 800 (2d Cir. 2016) ("Where the Commission has assigned a rather low 
base offense level to a crime and then increased it significantly by a loss enhancement, that 
combination of circumstances entitles a sentencing judge to consider a non-Guidelines 
sentence."). 
When considering whether the loss amount in this case appropriately reflects 
Rafael's culpability, it is helpful to analogize to situations in which comts have sentenced 
defendants in procurement fraud cases. In such instances, where defendants fraudulently procure 
set-aside contracts by misrepresenting their status as a minority or veteran owned business but 
actually perform the work required under the contract, comts have held that the appropriate 
calculation of loss requires crediting the defendant for the market value of the work performed. 
31 
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See United States v. Shulick, 18 F.4th 91, 114 (3d Cir. 2021); United States v. Kozerski, 969 F.3d 
310, 313 (6th Cir. 2020); United States v. Harris, 821 F.3d 589, 602-04 (5th Cir. 2016); United 
States v. Martin, 796 F.3d 1101, 1110-11 (9th Cir. 2015). Even though the pa1ties have 
stipulated to the loss amount in this case, it is still appropriate for the Comt to conclude that the 
Guidelines calculation overstates Rafael's culpability because it doesn't account for the fact that 
MBE earned $71 million in fees for PPP loans it actually provided to bonowers in need.28 See 
United States v. Corsey, 723 F.3d 366, 379 (2d Cir. 2013) (Underhill, J. concuning) ("Although 
the District Comt used the intended loss amount conectly for purposes of calculating the 
Sentencing Guidelines range, the Comt ened by failing to dramatically discount that calculation 
when weighing the section 3553(a) factors against the totality of circumstances."). 
In addition to the $71 million in PPP lender fees, the loss amount also accounts 
for a $283,764 PPP loan that MBE obtained based on inaccurate info1mation that Rafael 
provided to Bank of America about MBE's employees and payroll. But, as described above, 
even though Rafael provided inaccmate inf01mation about the number of MBE's employees and 
payroll at the time he applied for the loan, he subsequently hired more employees and increased 
MBE's payroll by an amount that exceeded what he represented in MBE's PPP loan 
application.29 While Rafael should never have provided inaccmate inf01mation on MBE's PPP 
loan application, the fact that the loan was used for its legitimate, intended purposes should 
weigh in favor of a downward variance. See, e.g. , Sentencing Tr. at 11-12, 25-26, United States 
v. Smith, No. 1:21-cr-20001 (S.D. Fla. Dec. 16, 2021), Dkt. 54 (sentencing defendant who pied 
28 It is also worth noting that the $71 million in the fees that MBE earned was spent primarily on business expenses, 
including fees paid to Equitmst, fees paid to other banks and technology companies MBE partnered with to process 
PPP loans, rent, employee salaries, and other operating expenses incuned in processing approximately 40,000 PPP 
applications. 
29 See Exs. EE-JJ. 
32 
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guilty to one count of conspiracy to commit wire fraud to 20 months' imprisonment, which was a 
downward variance from the Guidelines, where he applied for multiple PPP loans totaling over 
$1 million and spent some money on luxrny items and some on legitimate business expenses). 
C. 
A 60-Month Sentence Is Greater Than Necessary to Achieve 
Deterrence. 
Imposing a Guidelines sentence of 60 months' imprisonment is greater than is 
necessary to deter Rafael from co1I1IDitting frnther crimes. Rafael is 58 years old and has never 
been in trouble with the law before being aITested for the offenses in this case. He has already 
suffered consequences sufficient to deter him from co1I1IDitting similar crimes in the future, 
including the agony his conviction has caused to his two daughters and the damage it has 
inflicted on his reputation as a businessman. This damage to Rafael's family and reputation are 
sufficient to deter him from committing future crimes. See, e.g., Gupta, 904 F. Supp. 2d at 355 
("As to specific deteITence, it seems obvious that, having suffered such a blow to his reputation, 
[ defendant] is unlikely to repeat his transgressions, and no further punishment is needed to 
achieve this result."); United States v. Gaind, 829 F. Supp. 669, 671 (S.D.N.Y. 1993) (granting 
downward departme where defendant was punished by the loss of his business); United States v. 
St. Bernard, No. 06-CR-483 (JBW), 2008 WL 973138, at *1 (E.D.N.Y. March. 19, 2008) ("fu 
view of [defendant's] histmy and close family ties, specific detenence is achieved by a sentence 
of time served."). Additionally, as part of his plea agreement, Rafael has agreed to pay over $70 
million in restitution, in addition to almost $45 million in forfeitme payments. The severe 
economic consequences of his conviction serve as further detenence to Rafael from committing 
future crimes. 
Statistically, defendants in Rafael's position pose a low risk of recidivism. As the 
Sentencing Commission has recognized, first time offenders, particularly older offenders, are far 
33 
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less likely to recidivate than others. See U.S. Sent'g Comm'n, Measuring Recidivism: The 
Criminal History Computation of the Federal Sentencing Guidelines, at 28, Ex. 9 (May 2004) 
(showing a 6.2% recidivism rate for offenders over the age of 50 with a Criminal Histo1y 
Catego1y ofl). For this reason, the Sentencing Commission recently adopted amendments to the 
Guidelines that provide an additional decrease of two levels from the offense level for offenders 
who have zero criminal hist01y points. See U.S. Sent'g Comm'n, Amendments to the Sentencing 
Guidelines, at 79 (April 27, 2023). The Sentencing Commission adopted this amendment after 
analyzing data that showed offenders with "zero criminal history points have considerably lower 
recidivism rates than other offenders, including offenders with one criminal histo1y point." Id. 
The Commission also noted that, in fiscal year 2021, offenders with zero criminal histo1y points 
received downward departures or variances in over 60% of cases. Id. While these amendments 
are not effective until November 2023, the Comt should take them into consideration when 
determining whether a downward variance is appropriate here. See, e.g., United States v. 
Hamilton, 323 F. App'x 27, 31 (2d Cir. 2009) ("[T]he district cornt abused its discretion in not 
taking into account policy considerations with regard to age recidivism not included in the 
Guidelines"). 
A 60-month sentence is also substantially greater than necessa1y to deter others 
from committing similar crimes. "Cunent empirical research on general detenence shows that 
while ce1tainty of punishment has a detenent effect, increases in severity of punishments do not 
yield significant (if any) marginal deten ent effect . . . Three National Academy of Science panels 
... reached that conclusion, as has every major smvey of the evidence." United States v. 
Velazquez, No. 16-cr-233, 2017 WL 2782037, at *4 (S.D.N.Y. May 26, 2017). "[T]here is no 
decisive evidence to supp01t the conclusion that harsh sentences actually have a general and 
34 
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specific deteITent effect on potential white-collar offenders." Zvi D. Gabbay, Exploring the 
Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8 
Cardozo J. Conflict Resol. 421, 448-49 (2007). While the Comt should consider the need for a 
sentence to impose adequate general deteITence, "[ s ]entencing judges should try to be realistic 
about the incremental deteITent effect of extr·emely long sentences." United States v. Craig, 703 
F.3d 1001, 1004 (7th Cir. 2012) (Posner, J., concmTing). Thus, even if the Comt were to 
conclude that a custodial sentence was necessaiy in this case for general deteITence pmposes, a 
sentence of 60 months is significantly longer than is necessa1y to achieve that goal. 
D. 
A 60-Month Sentence Would Impose Unnecessary Collateral Costs on 
Rafael's Family and Community. 
Imposition of a five-year custodial sentence would also impose meaningful 
collateral consequences on Rafael's family and the community at lai·ge. As Rafael's daughter, 
Chelsea, explained to Probation, she relies on him to take cai·e of her young children three days a 
week. (PSR ,i 55.) Rafael supports many of his family members, including his 90-year old 
mother who is in ill health, his siblings, his children, and his grandchildren. (PSR ,i 46, 55.) 
Even if he will not be able to support them financially, given his restitution and forfeitme 
obligations, Rafael still provides important social suppo1t to his family, visiting his elderly 
mother and helping her with her daily tasks, providing childcare for his grandchildren, and 
working with his neighbors in his parish community. The Court can, and should, take these 
considerations into account when detennining whether a years-long custodial sentence is 
necessary in this case. See United States v. Lawrence, 254 F. Supp. 3d 441, 447 (E.D.N.Y. 
2017) ("Another vector is the cost to a defendant's community of long-term imprisonment: 
defendants are usually incapable of making substantial contr·ibutions to their communities and 
families while they are incarcerated and after a long sentence has been served."). 
35 
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CONCLUSION 
We hope that when Your Honor considers the life Rafael Maitinez has lived-one 
defined by kindness, generosity, compassion and caring for others-and the fact that the 
Guidelines sentence here is driven not by money stolen from victims, but by fees earned for 
helping the government get critical relief into the hands of overlooked minority-owned small 
businesses, the Comt will conclude that a sentence that is substantially shorter than five years is 
appropriate. 
Dated: 
New York, New York 
June 27, 2023 
WILLKIE FARR & GALLAGHER LLP 
By: Isl Michael S. Schachter 
Michael S. Schachter 
Randall W. Jackson 
787 Seventh Avenue 
New York, New York 10019 
Phone: (212) 728-8000 
MORVILLO, ABRAMOWITZ, GRAND, 
IASON & ANELLO, P.C. 
Elkan Abramowitz 
Telemachus P. Kasulis 
565 Fifth A venue 
New York, New York 10017 
Attorneys for Def endant Rafael Martinez 
36 
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