Government sentencing memorandum — United States v. Diamond Blue Smith (S.D. Fla.)

Record facts

U.S. District Court, Southern District of Florida · No. 1:21-cr-20001-MGC · Doc. 47 · 2021-11-30 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
BROWARD DIVISION 
 
CASE NO. 21-20001-CR-COOKE 
 
UNITED STATES OF AMERICA  
 
 
 
 
 
 
 
 
 
 
vs. 
    
 
 
 
 
 
 
 
 
 
 
 
 
 
 
DIAMOND BLUE SMITH, 
 
 
Defendant. 
__________________________________/ 
 
GOVERNMENT’S SENTENCING MEMORANDUM  
The United States of America, by and through its undersigned counsel, hereby submits this 
Sentencing Memorandum as to Defendant Diamond Blue Smith (the “Defendant”).  The 
Defendant is presently set for sentencing before the Court on December 16, 2021 for his conviction 
by guilty plea to one count of conspiracy to commit wire fraud, in violation of Title 18, United 
State Code, Section 371.  The offense stems from the Defendant’s participation in a fraud scheme 
involving the Paycheck Protection Program (“PPP”) under the Cares Act, as a result of which the 
Defendant received more than $1 million in fraudulent loan proceeds.     
For the reasons set forth herein, the United States respectfully recommends that the Court 
sentence the Defendant to a term of imprisonment of 37 months, to be followed by three years of 
supervised release, and that the Court impose a forfeiture money judgment, order the forfeiture of 
specific property, and order restitution, as agreed to by the parties and as discussed below.  The 
government believes that its sentencing recommendation will provide punishment for the offense 
of conviction that is sufficient, but not greater than necessary, to accomplish the purposes of 
sentencing set forth in 18 U.S.C. § 3553(a). 
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I. 
FACTUAL BACKGROUND 
In early 2020, as the COVID-19 pandemic spread across the country and disrupted 
everyday life, causing illness, death and economic distress, the U.S. government assembled relief 
programs to help those whose livelihoods were jeopardized.  One of those programs was the PPP.  
Against this backdrop, the Defendant and his co-conspirators participated in a scheme to obtain by 
fraud millions of dollars in forgivable loans through the PPP,  and have done so by conspiring with 
James Stote (“Stote”), Phillip J. Augustin (“Augustin”), and others.  The Defendant obtained two 
fraudulent PPP loans for his companies, Throwbackjerseys.com, LLC (“Throwbackjerseys.com”) 
and Blue Star Records, LLC (“Blue Star Records”), with Stote providing falsified documents and 
submitting the applications on the Defendant’s behalf in exchange for a kickback from the loan 
proceeds.  To inflate the size of these PPP loans, and the corresponding kickbacks, the conspirators 
relied on a variety of false statements, including by submitting falsified bank statements and 
payroll tax forms.     
A. 
The CARES Act 
In March 2020, in response to the many challenges presented by the pandemic, Congress 
passed the CARES ACT, Pub. L. 116-136, which created the PPP.  The PPP authorized $349 
billion in forgivable loans to small businesses to be used for payroll, mortgage interest, rent/lease 
payments, or utilities.   In April 2020, Congress authorized an additional $310 billion for PPP 
funding.  These funds were designed to address the unprecedented crisis facing Americans—
especially business owners whose livelihoods were threatened by the public health emergency.  
PPP funds were designed as a lifeline.   
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The program was designed to provide funds quickly and easily to qualifying individuals.  
PPP loans were not dispensed through any government bureaucracy; funds were distributed by 
banks who had existing relationships with many of the people in need.  To apply, individuals 
submitted an application to a participating financial institution along with supporting 
documentation as to the business’s payroll expenses.  The supporting documentation requirement 
was minimal, and could be satisfied with one years’ worth of the company’s tax records.  If a PPP 
loan application was approved, the participating financial institution funded the PPP loan using its 
own monies, which were 100% guaranteed by the Small Business Administration (“SBA”). 
B. 
Overview of Defendant’s Conduct 
A more detailed recitation of the facts relating to the scheme is detailed in the Defendant’s 
factual proffer statement [ECF No. 36], and the Pre-Sentence Investigation Report (“PSR”) [ECF 
No. 41].  
Beginning in May 2020 through in or around at least August 2020, the Defendant conspired 
with Stote, Augustin, and others to obtain by fraud two PPP loans on behalf of his companies, 
Throwbackjerseys.com and Blue Star Records.     
In furtherance of the conspiracy, the Defendant caused the submission of a PPP loan 
application on behalf of Throwbackjerseys.com that contained materially false and fraudulent 
representations.  The supporting documents prepared by Stote included a falsified company bank 
statement and IRS Forms 941 for 2019 (Employer’s Quarterly Federal Tax Return), which falsely 
represented wages that the company had not paid to employees that the company did not have.    
On May 18, 2020, the Defendant electronically signed a PPP loan application form on behalf of 
Throwbackjerseys.com, which falsely represented that Throwbackjerseys.com had 21 employees 
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and an average monthly payroll of $170,687.  Relying on those false representations, Bank 1 
approved and funded a PPP loan for Throwbackjerseys.com in the amount of $426,717.   
Following the success of this fraudulent PPP loan application, the Defendant wanted to 
apply for a second PPP loan on behalf of another company he owned, Blue Star Records.  The 
Defendant was advised by Stote, however, that he could not be the applicant on more than one 
PPP loan.  In order to get around this limitation, on or about May 21, 2020, the Defendant obtained 
Stote’s help to add his mother as an officer to the corporate records for Blue Star Records.  
Thereafter, the Defendant caused the submission of a PPP loan on behalf of Blue Star Records that 
falsely represented that the Defendant’s mother was the sole owner of the business.  The loan 
application for Blue Star Records contained false and fraudulent representations about the number 
of employees and wages paid for each quarter of 2019, similar to the false representations 
contained in the Throwbackjerseys.com loan application.   
The loan application and supporting documents for Blue Star Records were prepared by 
Stote, and they included a falsified bank statement and IRS Forms 941 for each quarter of 2019.  
The Defendant forged his mother’s signature on the Blue Star Records loan application, which 
falsely claimed that Blue Star Records had 35 employees and an average monthly payroll of 
$283,226.  Relying on those false representations, Bank 1 approved and funded a PPP loan for 
Blue Star Records in the amount of $708,065.  Combined with the Throwbackjerseys.com loan, 
the Defendant fraudulently obtained $1,134,782 in PPP funds. 
The Defendant paid kickbacks to Stote and Augustin totaling approximately $250,000, for 
their assistance in preparing and submitting the fraudulent loan applications on behalf of 
Throwbackjerseys.com and Blue Star Records.  The Defendant spent the PPP loan proceeds on 
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himself and others, not on the uses authorized under the CARES Act.  The Defendant used the 
loan proceeds on luxury items, such as the purchase of a Ferrari 458 Italia sports car and at the 
Seminole Hard Rock Hotel and Casino.       
II. 
PROCEDURAL HISTORY 
On September 30, 2020, the Defendant was charged by complaint with conspiracy to 
commit wire fraud and bank fraud, in violation of Title 18, United States Code, Section 1349, wire 
fraud, in violation of Title 18, United States Code, Section 1343, and bank fraud, in violation of 
Title 18, United States Code, Section 1344 [ECF No. 3].  The Defendant agreed to a waiver of 
indictment, and on January 5, 2021, he was charged in an Information with conspiracy to commit 
wire fraud, in violation of Title 18, United States Code, Section 371 [ECF Nos. 15, 16, 17].  The 
Defendant pleaded guilty before this Court to the Information pursuant to a written plea agreement 
on August 4, 2021 [ECF Nos. 31, 36, 37].  Sentencing is presently scheduled for December 16, 
2021. 
III. 
SENTENCING GUIDELINES CALCULATIONS 
As explained below, the United States submits that the Defendant should be assigned a 
Total Offense Level of 21.  At Criminal History Category I, the corresponding advisory Guidelines 
range is 37-46 months in prison.   
A. 
The Government’s Computation of the Offense Level 
 
 
The United States’ Offense Level calculations are as follows: 
Base Offense Level, § 2B1.1(a)(2) 
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Loss greater than $550,000 but not more than $1,500,000, § 2B1.1(b)(1)(H) 
14 
The defendant derived more than $1,000,000 in gross receipts from one or more 
financial institutions as a result of the offense, pursuant to § 2B1.1(b)(17)(A) 
  2 
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Increase to level 24, pursuant to § 2B1.1(b)(17)(D) 
Total: 24 
Acceptance of Responsibility and Timely Notification § 3E1.1(a) and (b) 
(3) 
Total Adjusted Offense Level 
21 
 
 
The Defendant objects to Probation’s recommendation in the PSR to impose a two-level 
enhancement for employing sophisticated means, pursuant to Guidelines Section 2B1.1(b)(10).  
See PSR at ¶ 54.  While the government agrees that the offense involved “sophisticated means,” 
particularly in the making of false company bank statements and IRS forms filed with the 
fraudulent loan applications, the Defendant did not intentionally engage in or cause the conduct 
constituting sophisticated means in this case.  Thus, the government is generally in agreement with 
the Defendant that the sophisticated means enhancement should not be applied here. 
The Defendant also objects to Probation’s recommendation in the PSR to impose a two-
level enhancement for having derived more than $1,000,000 in gross receipts from a financial 
institution, pursuant to Guidelines Section 2B1.1(b)(17)(A).  As explained below, the Defendant 
should receive an enhancement for having received more than $1,000,000 in gross receipts from a 
financial institution as a result of this offense.     
B. 
Defendant derived more than a million dollars in gross receipts from a 
financial institution, requiring enhancement under § 2B1.1(b)(17).  
 
 
Section 2B1.1(b)(17)(A) of the Guidelines provides a two-level enhancement when “the 
defendant derived more than $1,000,000 in gross receipts from one or more financial institutions 
as a result of the offense.”  U.S.S.G. § 2B1.1(b)(17)(A).  The comments section in the Guidelines 
provides that the enhancement applies to a defendant “if the gross receipts to the defendant 
individually, rather than to all participants, exceeded $1,000,000.”  §2B1.1 Comment 13(A).  In 
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addition, “[g]ross receipts from the offense” is defined as “all property … which is obtained 
directly or indirectly as a result of such offense.”  §2B1.1 Comment 13(B). 
 
The Defendant argues that this enhancement should not be applied because the loss amount 
calculation already takes into account the amount the defendant received from the offense, and 
thus, this enhancement in effect double counts the same aspect of the offense conduct.  Def’s 
Objections [ECF 45 at p. 3].   The Defendant’s argument lacks merit and this objection should be 
overruled. 
 
First, there is no real question here whether the enhancement applies.  It clearly does.  The 
Defendant directly received more than $1,000,000 in property, i.e., gross receipts, from a financial 
institution, Bank 1, as a result of the offense.  There is no dispute that Bank 1 was the source of 
$1,134,782 that the Defendant obtained and that Bank 1 was a victim of the offense conduct.  See, 
e.g., United States v. Muho, 978 F.3d 1212, 1221-22 (holding that enhancement applied when the 
financial institution was the source of the property and was the victim of the offense conduct).   
 
Second, this enhancement has a specific application, and is not interchangeable with the 
loss amount.  The Defendant was convicted for his participation in a wire fraud conspiracy.  This 
conspiracy involved over 90 fraudulent PPP loans and caused an intended loss  of over $34 millions 
of dollars, and an actual loss to financial institutions in excess of $17 million.   However, the 
Defendant is being held accountable only for the role that he played as to his own loans and the 
resulting loss he directly caused therefrom.  The “loss amount” calculation in the Guidelines is 
intended to broadly encompass the intended and actual loss to anyone or any entity who was a 
victim of the offense, whether or not any of the proceeds derived from the offense made its way to 
the Defendant.    
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By contrast, the enhancement at issue applies only when the victim of the offense is a 
financial institution, and when the Defendant – individually – received more than $1 million from 
that financial institution as a result of the offense.  The enhancement reflects the U.S. Sentencing 
Commission’s view that offense conduct directed at a financial institution that has this particular 
result, i.e., the defendant deriving more than $1 million from the financial institution, warrants a 
sentencing enhancement.  In other words, the conduct warrants a higher offense level, i.e., greater 
punishment, over and above whatever the offense level may be after calculation of the loss amount.  
Furthermore, the U.S. Sentencing Commission determined that this offense conduct is sufficiently 
egregious that it set an offense level floor of 24 in cases where this enhancement applies.  U.S.S.G. 
§2B1.1(b)(17)(D).   Guidelines Section 2B1.1(b)(17)(D) provides that if the financial institutions 
enhancement applies, and the offense level is less than 24, the offense level shall be increased to 
24.  Id. 
 
In this case, the adjusted offense level would reach 22 if the sophisticated means 
enhancement is not applied, but §2B1.1(b)(17)(D) dictates that the offense level must be increased 
to 24 where the enhancement applies.  Thus, with or without application of the sophisticated means 
enhancement, the adjusted offense level in this case is 24 once the enhancement for receiving more 
than $1 million from a financial institution is applied.  See U.S.S.G. §2B1.1(b)(17).  For the reasons 
discussed above, this sentencing enhancement applies and the Defendant’s objection should be 
overruled. 
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IV. 
CONSIDERATION OF SENTENCING FACTORS UNDER 18 U.S.C. § 3553(A) 
Title 18, United States Code, Section 3553(a), enumerates several factors that the Court 
shall consider in sentencing a defendant.  As addressed in turn below, the 3553(a) factors relevant 
to the Defendant support the sentence recommended by the United States. 
A. 
Nature and Circumstances of the Offense  
This was a serious offense.  In 2020, as the COVID-19 pandemic spread across the country 
causing illness, death and economic distress, the government created PPP loans to help small 
business owners and their employees whose livelihoods were jeopardized.  The Defendant took 
advantage of the program by submitting not one, but two false applications claiming to have 
employees and payroll that did not exist.   The applications were supported by false tax forms, and 
fictitious bank statements.  As to the second loan application, the Defendant concealed his 
ownership interest in the business by listing his mother as the owner, and he forged his mother’s 
signature on the application.  The Defendant’s willful participation in this serious criminal conduct 
warrants a sentence of imprisonment within the advisory Guidelines range.  The United States’ 
recommended sentence of 37 months’ imprisonment, which is at the bottom of the Guidelines 
range, is sufficient but not greater than necessary to accomplish this goal. 
B. 
History and Characteristics of the Defendant  
The Defendant is a 37-year-old musician who conducts live performances with a band.  
The Defendant is self employed and owns several companies, including the two companies he 
used to apply for the fraudulent PPP loans in this case.  The Defendant has two prior arrests for 
battery, but no convictions, and zero criminal history points.      
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The Defendant agreed to plead guilty before being indicted, and thus deserves credit for 
accepting responsibility early and saving the government considerable resources in preparing for 
trial.  The sentence recommended by the United States reflects such acceptance because it is within 
the Guidelines produced by the Offense Level that has been adjusted downward by three levels for 
acceptance of responsibility pursuant to Section 3E1.1(a) and (b). 
C. 
Need for the Sentence to Afford Adequate Deterrence to Criminal  
Conduct and Protect the Public from Further Crimes of the Defendant 
The sentence in this case should address a need for both general and specific deterrence.  
As to general deterrence, the Eleventh Circuit has explicitly stated that “general deterrence is an 
important factor in white-collar cases, where the motivation is greed.”  United States v. Hayes, 762 
F.3d 1300, 1308 (11th Cir. 2014).  As explained above, this case was motivated by greed at time 
when millions of Americans were suffering from the economic impact of a global pandemic.  As 
the pandemic spread, so too did fraud related to the PPP program and other programs designed to 
provide critical economic assistance—especially in the Southern District of Florida.  The 
government’s recommended sentence of imprisonment in this case is thus appropriate to provide 
both specific and general deterrence.  Such a sentence will send a clear message to the Defendant 
and other offenders that there are serious consequences for defrauding government pandemic relief 
programs.  Actors like the Defendant who seek to defraud these programs not only drain the 
program of limited funding, they make it more difficult for administrators of government and other 
relief programs to get aid to individuals that qualify for and need it.  The Defendant’s sentence 
will serve as a warning and deterrent to others inclined to exploit pandemic relief programs. 
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Furthermore, a sentence at the bottom of the Guidelines range is sufficient to protect the 
public from future crimes of this Defendant who has no prior convictions.  With this sentence, the 
government believes the risk of recidivism is low.   
D. 
Need for the Sentence to Avoid Unwarranted Sentencing Disparities  
The sentence recommended by the United States will not create an unwarranted sentencing 
disparity.  There are two relevant points of comparison to avoid unwarranted sentencing 
disparities: sentences associated with others convicted of PPP related fraud, and the sentences of 
co-conspirators in this case.  While a relatively small number of defendants have been sentenced 
to date for offenses related to PPP fraud, judges of this Court and of other Districts have imposed 
sentences with significant terms of imprisonment.  See, e.g., United States v. Ioannis Kralievits, 
Case No. 21-20157-CR-Altonaga (S.D. Fla. June 30, 2021) (sentencing cooperating defendant to 
19-month term of imprisonment (following reduction pursuant to 5K1.1) in connection with two 
fraudulent PPP loans totaling approximately $824,750); United States v. David Hines, Case No. 
21-20011-CR-Cooke (S.D. Fla. May 12, 2021) (imposing 78-month term of imprisonment for 
defendant responsible for a loss of $3.9 million resulting from multiple fraudulent PPP loans);  
United States v. Ganell Tubbs, 20-00193-CR-Miller (E.D. Ark.) (imposing 41-month term of 
imprisonment for defendant responsible for loss of $1.9 million resulting from two fraudulent PPP 
loans). 
Seven other conspirators in this scheme have been sentenced.  On October 18, 2021, the 
court sentenced co-conspirator Devonte Thames to 31 months imprisonment, three years of 
supervised release, and ordered him to pay restitution and forfeiture. United States v. Thames, Case 
No. 21-cr-60125-RKA (S.D. Fla.).  The sentence was at the bottom of the adjusted Guidelines 
range after the court granted the government’s motion, pursuant to Section 5K1.1, and reduced 
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Thames’ sentence by approximately 33%.  Meanwhile, on October 13, 2021, the court sentenced 
co-conspirator Dennes Garcia to 18 months imprisonment – which was at the bottom of the 
Guidelines range – three years of supervised release, and ordered him to pay restitution and 
forfeiture.  United States v. Garcia, Case No. 21-cr-60146 (S.D. Fla.). 
In addition, on July 13, 2021, the court sentenced co-conspirator Tiara Walker to one year 
and one day, three years of supervised release, and ordered her to pay restitution and forfeiture.  
United States v. Walker, Case No. 20-cr-60159-RAR (S.D. Fla.).  On July 27, 2021, co-conspirator 
Tonye Johnson was sentenced by the court to 18 months in prison, three years of supervised 
release, and ordered him to pay restitution and forfeiture.  United States v. Johnson, Case No. 21-
CR-60017-RKA (S.D. Fla.).  On September 24, 2021, the court sentenced Brian Arnold to time 
served, three years of supervised release, including one year of home confinement, 600 hours of 
community service, and ordered him to pay restitution and forfeiture.  United States v. Arnold, No. 
21-CR-20331 (S.D. Fla.).  Unlike defendants Smith, Thames, Walker, and Johnson, the proceeds 
for Defendant Arnold’s fraudulent PPP loan were immediately frozen before he could pay any 
kickbacks or otherwise spend the funds.  On October 8, 2021, the court sentenced Cindi Denton to 
six months imprisonment, three years of supervised release, including one year of home 
confinement, and ordered her to pay restitution and forfeiture.  United States v. Denton, No. 21-
CR-60171 (S.D. Fla.).  Defendants Walker, Johnson, Arnold, and Denton had no criminal history 
points; they each sought fraudulent PPP loans for their own companies, for less than $500,000 
each, and did not refer others to the scheme.1   
 
1 Notably, however, defendant Johnson tested positive for marijuana during the presentence 
investigation and attempted to conceal his marijuana use from Probation by using a device to 
provide urine from someone other than the test taker. 
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On July 30, 2021, the court sentenced Andre Clark to 33 months imprisonment, three years 
of supervised release, and ordered him to pay restitution and forfeiture.  United States v. Clark, 
Case No. 21-CR-60029 (S.D. Fla.).  Defendant Clark sought his own fraudulent PPP loan and also 
referred other conspirators to the scheme, and he did so with a significant criminal history.  
Defendant Clark’s sentence was at the bottom of the Guidelines as calculated by the court, after 
the court held that a two-level minor role reduction was warranted because Clark ultimately 
received very little from the scheme, so his Guidelines loss amount greatly exceeded his personal 
gain.2   
A sentence of 37 months for this Defendant, which is the low end of the Guideline range, 
is a fair and just sentence in this case.  It takes into consideration that the Defendant is being held 
responsible only for the loss associated with his two fraudulent loans totaling $1,134,782, but also 
provides deterrence to others who may seek to defraud on-going government programs intended 
to alleviate the economic impacts of the Covid-19 pandemic.   
V. 
RESTITUTION & FORFEITURE 
Restitution is mandatory in this case pursuant to 18 U.S.C. § 3663A(a)(1).  The parties 
agreed in the Plea Agreement that the Defendant owes restitution in the amount of $1,134,782, 
which represents the loss to Bank 1 as a result of the Defendant’s participation in the conspiracy.  
The Defendant has objected to Paragraph 103 of the PSR, and advised the government that he did 
not withdraw the balance of $23,436.77, which was removed from his Throwbackjerseys.com 
bank account before the account was closed.  The government has been informed by Bank 1, the 
 
2 Based primarily on his referrals, Clark’s loss amount for sentencing purposes was between 
$3,500,000 and $9,500,000.  However, Clark ultimately received little money from the scheme, 
which the sentencing court found to be a significant factor at sentencing.  
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victim in this case, that the Defendant’s bank transferred $23,436.77 to Bank 1 from the 
Defendant’s account.  Accordingly, the restitution amount of $1,134,782 should be reduced by 
$23,436.77, to reflect the amount that the Defendant currently owes, which is $1,111,345.23.  
Restitution is owed joint and severally with the Defendant’s co-conspirators charged in the 
following related case:  21-CR-00805-PAB (N.D. Oh.). 
Furthermore, pursuant to the Plea Agreement, the Defendant agreed to the forfeiture of the 
2010 black Ferrari 458 Italia, and a forfeiture money judgment in the amount of $1,134,782.  On 
October 25, 2021, the Court entered a preliminary order of forfeiture in which the Court entered a 
forfeiture money judgment of $1,134,782 [ECF No. 44].  
 
* 
 
* 
 
* 
 
 
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CONCLUSION 
 
For the forgoing reasons, the United States respectfully recommends that the Court 
sentence the Defendant to a term of imprisonment of 37 months, to be followed by a term of 
supervised release of three (3) years.  The United States also requests that the Court order 
restitution, forfeiture, and a special assessment, consistent with the Plea Agreement and the 
modifications discussed herein. 
 
 
Respectfully Submitted, 
 
 
JUAN ANTONIO GONZALEZ 
UNITED STATES ATTORNEY  
 
 
By:       _/s/ Aimee C. Jimenez 
AIMEE C. JIMENEZ 
Assistant United States Attorney 
Court No. A5500795 
99 NE 4TH Street 
Miami, FL 33132 
Tel. (305) 961-9028 
Fax (305) 961-7976 
Email: aimee.jimenez@usdoj.gov 
 
 
 
 
 
 
JOSEPH S. BEEMSTERBOER 
ACTING CHIEF, FRAUD SECTION 
    
 
By:      /s/ Philip B. Trout  
            PHILIP B. TROUT 
Trial Attorney, Fraud Section 
U.S. Department of Justice 
1400 New York Ave NW 
Washington, DC 20530 
Tel: (202) 616-6989 
Fax: (202) 514-3708 
Email: philip.trout@usdoj.gov 
 
 
 
 
 
 
 
 
 
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CERTIFICATE OF SERVICE  
I HEREBY CERTIFY that on November 30, 2021, I electronically filed the foregoing 
document with the Clerk of the Court using CM/ECF.   
s/Aimee Jimenez                           
Aimee C. Jimenez 
Assistant United States Attorney 
 
 
 
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