Court filing
United States' Supplemental Sentencing Memorandum — U.S. v. Slaton
Filed June 29, 2022 in U.S. v. Slaton; one of 6 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2022-06-29 |
U.S. District Court for the Northern District of Georgia · No. 1:21-cr-00179-JPB · Doc. 25 · 2022-06-29 · Docket on CourtListener
Full text
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
v.
DENESSERIA SLATON A/K/A
DENESERRIE SLATON
Criminal Action No.
1:21-CR-179-JPB
United States’ Supplemental Sentencing Memorandum
The United States of America, by Ryan K. Buchanan, United States Attorney,
and Tal C. Chaiken and Nathan P. Kitchens, Assistant United States Attorneys for
the Northern District of Georgia, and Babasijibomi Moore, Trial Attorney for the
United States Department of Justice, respectfully files this Supplemental
Sentencing Memorandum. The Supplemental Sentencing Memorandum
addresses the Eleventh Circuit’s application of a three-level aggravating role
adjustment under United States Sentencing Guidelines Section 3B1.1(b).
A.
Courts Apply Seven Factors Primarily to Distinguish Between a Three-
Level and Four-Level Enhancement, not to Determine Whether an
Aggravating Role Enhancement Should Apply at All.
In her Sentencing Memorandum, Defendant urged the Court to consider the
seven factors identified in the commentary to Section 3B1.1 in deciding whether to
apply a three-level upward adjustment for Defendant’s role in the offense. (DE 22
at 3–4.) But the commentary explains that those factors are to be used “[i]n
distinguishing a leadership and organizational role from one of mere management
or supervision” – i.e. in deciding whether to apply a four-level adjustment under
Section 3B1.1(a) or a three-level adjustment under Section 3B1.1(b). U.S.S.G.
§ 3B1.1 cmt. n.4. In other words, those seven factors offer little guidance for the
Case 1:21-cr-00179-JPB Document 25 Filed 06/29/22 Page 1 of 6
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determination of whether an aggravating role adjustment applies in the first
instance.
The Eleventh Circuit recently addressed this issue, explaining that even if it
agreed with the defendant’s analysis of the application of the seven factors to his
conduct, it “would only know that [the defendant] was not in a leadership or
organizational role; [it] would not know much about whether he held a
management or supervision role.” United States v. Guerra Perez, 842 F. App’x 465,
468 (11th Cir. 2021) (emphasizing that the seven factors apply to distinguish a four-
level enhancement from a three-level enhancement); see also United States v.
Espinoza, 651 F. App’x 898, 900 (11th Cir. 2016) (concluding that the seven factors
“are relevant mainly to distinguish leadership or organizational roles from
managerial or supervisory roles”); United States v. Wolf, 860 F.3d 175, 199 (4th Cir.
2017) (“By its very terms . . . , application note four does not provide guidance for
determining whether to apply—in the first place—an aggravating role
enhancement. Rather, it is for ‘distinguishing a leadership and organizational role
from one of mere management or supervision.’”).
In sum, the seven factors that Defendant analyzed are relevant primarily to
a determination of whether a defendant was an organizer and leader subject to a
four-level adjustment or a manager or supervisor subject to a three-level
adjustment. Here, that analysis is unnecessary because the PSR does not
recommend, and the United States does not argue for, a four-level upward
adjustment.
Case 1:21-cr-00179-JPB Document 25 Filed 06/29/22 Page 2 of 6
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B.
Recruitment of One Participant is Sufficient to Warrant an Adjustment
Under Section 3B1.1(b).
Defendant’s suggestion that the seven factors enumerated in Application
Note 4 guide the Court’s decision on the application of any aggravating role
enhancement is flawed for another reason pertinent here: it ignores a line of
Eleventh Circuit authority holding that recruiting accomplices is, by itself,
sufficient to support an aggravating role enhancement. See United States v.
Vasquez, 486 F. App’x 830, 835 (11th Cir. 2012) (“[W]e have held many times that a
defendant’s recruitment of co-conspirators supports a § 3B1.1 enhancement.”);
United States v. Cunningham, 537 F. App’x 878, 880 (11th Cir. 2013) (upholding
three-level upward adjustment where the defendant’s only managerial act was
recruiting others to join scheme); United States v. Ducuara De Saiz, 511 F. App’x 892,
897 (11th Cir. 2013) (affirming three-level aggravating role enhancement based
solely on defendant’s role in “finding and recruiting couriers to transport drugs”);
United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (upholding four-level
enhancement based on evidence that defendant “recruit[ed] and instruct[ed] co-
conspirators”); United States v. Thomas, 446 F.3d 1348, 1355 n.2 (11th Cir. 2006)
(affirming application of aggravating role enhancement based solely on evidence
that defendant recruited others). In these cases, the Eleventh Circuit affirmed the
application of an aggravating role enhancement based solely on the recruitment of
accomplices, even though this conduct is only one of the seven factors enumerated
in Application Note 4. U.S.S.G. § 3B1.1 cmt. n.4. Defendant here conceded that she
recruited at least one business owner into the scheme to obtain a fraudulent
Paycheck Protection Program loan. Based on that concession alone, a three-level
enhancement under Section 3B1.1 is proper.
Case 1:21-cr-00179-JPB Document 25 Filed 06/29/22 Page 3 of 6
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While Defendant’s recruitment of a co-conspirator alone is sufficient to
warrant the enhancement, her undisputed conduct here included supervising and
providing direction to the owners of Infinite Education, Continuing Success, and
Transportation Management. (PSR ¶ 36.) That supervision of other participants
likewise supports the three-level upward adjustment. See United states v. Sosa, 777
F.3d 1279, 1301 (11th Cir. 2015) (upholding three-level adjustment, without
reference to seven factors, because “[e]ven if [the defendant] was a supervisor or
manager only of [one other participant], that single underling is enough to qualify
[the defendant] as a manager or supervisor under the Guidelines”). The fact that
Darrell Thomas orchestrated the fraudulent scheme and may have influenced
Defendant’s supervision and management of other co-conspirators does not
change the fact that Defendant’s role vis-à-vis the business-owners was one of
management and supervision. See e.g., United States v. Stroman, 661 F. App’x 600,
603 (11th Cir. 2016) (upholding three-level upward adjustment and rejecting the
defendant’s argument that she simply followed the mastermind’s instructions
because the evidence showed that the defendant “specifically directed other
codefendants in the tax fraud conspiracy”).
Case 1:21-cr-00179-JPB Document 25 Filed 06/29/22 Page 4 of 6
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Dated: June 29, 2022.
Respectfully submitted,
RYAN K. BUCHANAN
United States Attorney
TAL C. CHAIKEN
Assistant United States Attorney
Georgia Bar No. 273949
NATHAN P. KITCHENS
Assistant United States Attorney
Georgia Bar No. 263930
600 U.S. Courthouse
75 Ted Turner Drive SW
Atlanta, GA 30303
404-581-6000; Fax: 404-581-6181
SIJI MOORE
Trial Attorney, Fraud Section
U.S. Department of Justice
Case 1:21-cr-00179-JPB Document 25 Filed 06/29/22 Page 5 of 6
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Certificate of Service
The United States Attorney’s Office served this document today by filing it
using the Court’s CM/ECF system, which automatically notifies the parties
and counsel of record.
June 29, 2022
TAL CHAIKEN
Assistant United States Attorney
Case 1:21-cr-00179-JPB Document 25 Filed 06/29/22 Page 6 of 6File and source
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