Sentencing Memorandum; Memorandum in Support of Guideline Objection; and Motion for a Downward Variance — United States v. Diop McKenzie (M.D. Fla.)

Record facts

U.S. District Court, Middle District of Florida (Fort Myers Division) · No. 2:23-cr-00088 · Doc. 80 · 2024-09-05 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES OF AMERICA 
 
v.  
Case No. 2:23-cr-88-SPC-KCD 
 
DIOP MCKENZIE   
___________________________/ 
 
 
SENTENCING MEMORANDUM; 
MEMORANDUM IN SUPPORT OF GUIDELINE OBJECTION; 
AND MOTION FOR A DOWNWARD  VARIANCE 
 
DIOP MCKENZIE, through counsel, files his Sentencing Memorandum; 
Memorandum in Support of Guideline Objection; and Motion for a Downward 
Variance, and states: 
INTRODUCTION  
Mr. McKenzie is charged in a multi-count indictment alleging two counts 
of Bank Fraud in violation of 18 U.S.C. § 1344; two counts of Wire Fraud in 
violation of 18 U.S.C. § 1343; and one count of Aggravated Identity Theft in 
violation of 18 U.SC. § 1028A. On June 11, 2024, pursuant to a written plea 
agreement with the Government, Mr. McKenzie pled guilty to Count I, Bank 
Fraud; Count IV Wire Fraud; and Count V Aggravated Identity Theft.  These 
allegations relate to various fraudulent loan applications under the Paycheck 
Protection Act (PPP) and the Emergency Injury Disaster Loan (EIDL) 
programs during the COVID pandemic.  Additionally, in Count V it is alleged 
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that Mr. McKenzie used without authorization the identity of an individual 
identified as M.D. to apply for a loan.  
 
       The PSR calculates the guideline range for Counts I and IV as follows: 
BOL 
2B1.1(a)(1) 
   7 
Loss Amount 
2B1.1(b)(1)(F) 
+10 
conduct described in 18 U.S.C § 1040 2B1.1(b)(12) 
+ 2 
Acceptance of Responsibility 
3E1.1 (a) and (b)   -3 
Total Offense Level 
 
  16 
Guideline Range 
Level 16 CH III 
 
27-33 months imprisonment 
 
 
Under § 1028A, Count V requires a 24-month consecutive sentence. This 
brings the effective total guideline range to 51-57 months imprisonment.  Of 
course, the Court cannot vary from the statutory range as to Count V. The 
Court can vary with respect to the guideline range for Counts I and IV.  
   GUIDELINE OBJECTION  
 
 Mr. Mckenzie’s only objection to the guideline calculation is to the two-
level enhancement under USSG §2B1.1(b)(12). This provision applies only 
where a defendant engages in conduct that violates 18 U.S.C.  § 1040. Section 
1040 in turn prohibits engaging in a fraud in connection with a benefit 
authorized by a major disaster declaration under section 401 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. § 5170) or 
an emergency declaration under section 501 of the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act (42 U.S.C. § 5191). Mr. McKenzie 
GUIDELINE CALCULATION  
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maintains that to trigger this provision, therefore, the benefits must be 
authorized specifically by the Stafford Act as opposed to other statutory 
authority. The PSR indicates solely that Mr. Mckenzie made fraudulent 
statements and representations involving a benefit in connection with an 
emergency declaration (Coronavirus Aid, Relief, and Economic Security 
(Cares) Act/Covid-19 pandemic).PSR ¶ 57.    
 
By extending the pre-existing EIDL loan program to include economic 
losses sustained due to the COVID-19 pandemic, the CARES Act provided a 
separate statutory source of authorization and funding for EIDLs that was 
unrelated to any Stafford Act declaration. EIDLs authorized under the CARES 
Act were forgivable grants, whereas the pre-existing EIDL program 
administered by the SBA which was authorized by 21 U.S.C. § 636 provided 
for actual loans that needed to be repaid. This distinction demonstrates the 
separate authority of EIDLs authorized by the CARES Act. Because Mr. 
McKenzie applied for benefits authorized by the CARES Act, he did not seek a 
benefit “authorized” or “paid in connection with” a Stafford Act declaration, as 
required to apply § 2B1.1(b)(12). Accordingly, the guideline increase should not 
be imposed.  
MR. MCKENZIE’S BACKGROUND AND CHARACTERISTICS  
 
Mr. McKenzie’s statement to Court is attached. Appendix A. In accepting 
responsibility, Mr. McKenzie pulls no punches, explicitly admitting that he 
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“stole” $ 237,000 from the U.S. Government.  As opposed to making excuses, 
equally explicitly, he acknowledges that this was a “cowards” way out of 
dealing with his financial circumstances. 
Mr. McKenzie’s describes his personal history in detail in his letter to 
the Court. This description is consistent with what is the PSR and only does 
not require significant elaboration. In short, Mr. McKenzie was born to a single 
mother and spent his formative years in Lauderhill Florida, which he describes 
a rough area in Broward County. He recalls his father spent time in jail. He 
has no memory of his parents living in the same home. PSR ¶ 92. His mother 
had to work long hours, sometimes working multiple jobs to make ends meet. 
PSR ¶ 93.  As a result, Mr. McKenzie recalls he was frequently home alone and 
“inevitably spent a lot of time ‘running the streets’ and ‘raising myself.’” 
Exhibit A. After his mother and stepfather divorced the family moved to Cape 
Coral. His mother had found employment with Keiser University.  Mr. 
McKenzie felt that he never fit in in Cape Coral and did not do well in school. 
Still, he pursued unsuccessfully his dreams of playing basketball on the college 
level or alternatively serving his country in the military.  
 
Mr. McKenzie has eight children, two of whom have special needs. PSR 
¶¶ 96, 98. Contrary to what might be expected under the circumstances, two 
of his mothers of his children think enough of him as a father to write to the 
Court. Kristina Stewart, a Lee County School teacher, speaks in glowing terms 
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of Mr. McKenzie’s positive relationship with their ten-year daughter. Appendix 
E. Lindsay Neal, the mother of his younger three children, describes the 
diagnosis of their four-year old son with two congenital conditions leading to 
blindness. She also indicates that her son was diagnosed with autism. She 
describes Mr. McKenzie’s active role in her son’s journey and particularly an 
occasion when they spent five nights in the ICU together. Appendix F. This 
child will require constant care in the future.  
 
Both of Mr. McKenzie’s parents, as well as his younger sister, have also 
written letters to the Court on his behalf. Appendix B, C, and D.   
GROUNDS FOR A VARIANCE 
 
Mr. McKenzie recognizes that any variance from the guideline range 
would be limited Count I and Count IV. He maintains that there are grounds 
for a variance as to those counts for the following reasons.  
Insufficient Credit for Acceptance of Responsibility  
 
Due to the mandatory consecutive 2-year sentence for Count V, the 
reduction Mr. McKenzie receives for acceptance of responsibility is minimal. 
Should the guideline range remain as calculated, the total sentence with 
acceptance of responsibility would be 51 months on the low-end. (27 months on 
counts I and IV plus 24 months on Count V). This is based on a total offense 
level of 16, Criminal History Category III. Without acceptance of responsibility, 
Mr. McKenzie would be at a level 19, Criminal History Category III on those 
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counts. This would result in a guideline range of 37-46 months. As a practical 
matter, if sentenced to the low-end of the guidelines, Mr. McKenzie would 
receive only a total reduction for acceptance of responsibility of 10 months. Mr. 
McKenzie respectfully maintains that the Court should vary to more fully 
credit his acceptance of responsibility.  
Unwarranted Sentencing Disparities 
  
18 U.S.C. § 3553 (a)(6), of course, directs the Court to avoid unwarranted 
sentencing disparities. In this regard, the total sentence of 51 months sought 
by the Government exceeds sentences imposed in other COVID fraud cases. In 
a case involving a former public official, the sentence was minimal compared 
to the sentence Mr. McKenzie is facing. See United States v. Harding, 1:22-CR-
00032-001 (N.D. FL. October 19, 2023)(former Florida State representative 
sentenced to 4 months for fraudulently obtaining $ 150,000 in Covid-19 relief 
funds);https://www.justice.gov/usao-ndfl/pr/former-florida-state 
representative-sentenced-federal-prison-wire-fraud-money.   In another case, 
although there was not a § 1028A count, the defendant’s conduct was at least 
as severe and the loss amount was far greater. See United States v. Crowther, 
2:20-cr-114 (M.D.FL. June 29, 2021), affirmed 2023 WL 3813509 (11th Cir. 
June 5, 2023)(37-month sentence following a trial for a defendant who 
fraudulently obtained 2.1 million dollars in PPP funds and whose conduct 
included submitting 39 fake social security and green cards for nonexistent 
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employees).  In comparison to these two cases, as examples, Mr. McKenzie 
maintains that his proposed guideline sentence is disproportionately severe.  
CONCLUSION  
 
Mr. McKenzie maintains that a modest variance is appropriate as to the 
non-mandatory portion of his sentence.  
Respectfully submitted, 
A. Fitzgerald Hall, Esq. 
Federal Defender 
Middle District of Florida 
 
/s/ Russell K. Rosenthal  
Russell K. Rosenthal, Esq. 
Florida Bar No. 0319244 
Assistant Federal Public Defender 
2075 West First Street 3rd Floor  
Fort Myers Florida 33901 
Telephone:(239)334-0397 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that on this 5th day of September 2024, a true copy 
of the foregoing filed in this court and a copy was forwarded using CM/ECF to 
Yolande Viacava, Office of the United States Attorney, 2110 First Street, 3-137 
Fort Myers, Florida 33901. 
/s/ Russell K. Rosenthal 
Russell K. Rosenthal, Esq. 
Assistant Federal Defender 
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