Government’s Second Sentencing Memorandum — United States v. Clarke (Dkt. 23, N.D.N.Y.)

Summary

The government's second sentencing memorandum in United States v. Patricia Clarke, Criminal No. 1:23-CR-502 (MAD), in the U.S. District Court for the Northern District of New York, filed September 7, 2024 as Document 23 by Assistant U.S. Attorney Jonathan S. Reiner. Responding to the defendant's sentencing memorandum (ECF 22), it opposes her motion for a variance but consents to a downward departure for her role as a minor participant under U.S.S.G. §3B1.2(b). It recommends a sentence at the bottom of the range, 15 months incarceration, three years of supervised release, a Guideline fine, the agreed forfeiture of $66,092, restitution of $381,815 and a $100 special assessment.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Record facts

Full text

Case 1:23-cr-00502-MAD Document 23 Filed 09/07/24 Page 1 of 4




                        IN THE UNITED STATES DISTRICT COURT
                      FOR THE NORTHERN DISTRICT OF NEW YORK

 UNITED STATES OF AMERICA                      )   Criminal No.    1:23-CR-502 (MAD)
                                               )
               v.                              )   Government’s Second Sentencing Memorandum
                                               )
 PATRICIA CLARKE,                              )
                                               )
                                               )
               Defendant.                      )

        The United States of America, by and through its counsel of record, the United States

Attorney for the Northern District of New York, hereby files its second sentencing memorandum,

responding to contentions made in the Defendant’s sentencing memorandum. See ECF 22. The

Government opposes the Defendant’s motion for a variance, consents to the motion for a

downward departure based on her role as a minor participant, and recommends that the Court

impose a sentence at the bottom of the 15 months incarceration; three years supervised release; a

Guideline fine; the agreed-upon forfeiture of $66,092 and restitution of $381,815; and a $100

special assessment.

   I.      Motion for a Downward Departure

        The Defendant moved for a two-point-downward departure based upon her “role as a minor

participant.” ECF 22 at 2 (citing U.S.S.G. §3B1.2(b)). An offender is a minor participant when

“he or she is substantially less culpable than the average participant in the criminal activity.”

U.S.S.G. §3B1.2, app. n. 5. Factors to consider when determining this motion are

        (i) the degree to which the defendant understood the scope and structure of the
        criminal activity;

        (ii) the degree to which the defendant participated in planning or organizing the
        criminal activity;

        (iii) the degree to which the defendant exercised decision-making authority or
        influenced the exercise of decision-making authority;

          Case 1:23-cr-00502-MAD Document 23 Filed 09/07/24 Page 2 of 4




       (iv) the nature and extent of the defendant’s participation in the commission of the
       criminal activity, including the acts the defendant performed and the responsibility
       and discretion the defendant had in performing those acts;

       (v) the degree to which the defendant stood to benefit from the criminal activity.

U.S.S.G. §3B1.2, app. n. 3(C). An offender who “performs an essential or indispensable role in

the criminal activity” may still “receive an adjustment under this guideline if he or she is

substantially less culpable than the average participant in the criminal activity.” Id.

       There is no doubt that co-conspirator William Taylor is the substantially more culpable

actor in this conspiracy. Taylor obtained three victims’ personally-identifiable information and

sent it to the Defendant prior to the submission of a claim. PSIR ¶3(c). One of the victims’ claims

had the Defendant’s cell phone number as his claim. PSIR ¶16. A total of $66,092 in benefits for

that victim and two others were deposited into a bank account in the Defendant’s name. PSIR

¶¶3(g), (i).   The remaining 15 victims’ claims—representing over $300,000 in loss to the

NYSDOL—are not as closely associated with the Defendant.

       Applying the five Application Note 5 factors, the first factor cuts against the reduction

because the Defendant understood the scope and structure of the scheme. The second, third, and

fourth factors favor application of the reduction because the co-conspirator had a far greater role

in planning the scheme, the Defendant exercised less decision-making authority, and the

Defendant was a far lesser participant. Like the first factor, the fifth factor cuts against the

reduction: the Defendant had a significant financial gain from the criminal activity. In sum, three

factors favor application of the reduction while two caution against it.

       One more consideration that favors application of the reduction is the agreed-upon manner

of calculating the loss amount. The Defendant points out that her offense level was calculated on


                                                  2

             Case 1:23-cr-00502-MAD Document 23 Filed 09/07/24 Page 3 of 4




the reasonably foreseeable loss for the whole conspiracy, and she acknowledges this is appropriate

under the relevant conduct Guideline. Def.’s Sent. Mem. at 3 (citing U.S.S.G. §1B1.3). However,

when the offense level is calculated in this manner, a minor participant role becomes appropriate.

See United States v. Lewis, 93 F.3d 1075, 1085 (2d Cir. 1996) (affirming the denial of the minor

participant adjustment where the offense level was calculated on Lewis’ limited role rather than

the entire scheme).

         Given the Defendant’s lesser role, the application of the factors articulated by the

Guidelines, and the manner of calculating the loss amount, the Government consents to the Section

3B1.2(b) reduction as a minor participant. This would result in an Adjusted Offense Level of 14,

which yields a Guidelines range of 15-to-21 months incarceration and a fine of $7,500 to $75,000.

U.S.S.G. Ch. 5 pt. A; §5E1.2(c)(3).

   II.        Motion for a Variance

         The Defendant’s purported justifications for a below-Guideline sentence are in significant

tension with the Guideline’s policy statements on Specific Offender Characteristics. See U.S.S.G.

§§5H1.6 (family circumstances ordinarily not relevant), 1 5H1.7 (lesser role not relevant), 5H1.11

(civic contributions not relevant).    The specific offender characteristics highlighted by the

Defendant are not present to such an unusual degree as to distinguish her from other offenders.

         The Court has broad discretion to impose a sentence below (or above) the Advisory

Guidelines range.     However, for the reasons stated in the Government’s First Sentencing

Memorandum, a bottom-of-Guideline sentence is sufficient but not greater than necessary to



         1
         Indeed, the Court can mitigate against the loss of caretaking and financial support for the
child by staggering the execution of the sentences of the Defendant and her co-conspirator. See
U.S.S.G. §5H1.6 app. n. 1(B).

                                                 3

            Case 1:23-cr-00502-MAD Document 23 Filed 09/07/24 Page 4 of 4




accomplish the goals of Section 3553(a). In light of the defendant’s motion for a downward

departure, the Government has consented to a six-month-reduction of the bottom of the Guideline

range. A lesser sentence diminishes the seriousness of the Defendant’s crime and would not

adequately deter others from taking advantage of government benefits programs.

   III.      CONCLUSION

          The Court should sentence the Defendant to a 15-month-term of incarceration; a three-

year-term of supervised release; a Guideline fine; and a $100 special assessment; and the Court

should order the agreed-upon restitution of $381,815 to the State of New York as and forfeiture of

$66,092.

          Respectfully submitted this 7th day of September, 2024.


                                                        CARLA B. FREEDMAN
                                                        United States Attorney

                                               By:      /s/ Jonathan S. Reiner
                                                        Jonathan S. Reiner
                                                        Assistant United States Attorney
                                                        Bar Roll No. 702645


                                  CERTIFICATE OF SERVICE

I hereby certify on September 7, 2024, I electronically filed the foregoing with the Clerk of the
District Court using the CM/ECF system, which sent notification of such filing to counsel for the
Defendant.

                                                      /s/ Jonathan S. Reiner
                                                     Jonathan S. Reiner
                                                     Assistant United States Attorney
                                                     Bar Roll No. 702645




                                                  4

File and source

File

23.pdf

Size

161,828 bytes

SHA-256

88f4111000ec543ce2dba4a9a757a5cf096ec642c31d5cc34ba2544a49d3935e

Our copy

23.pdf