Court filing

Defendant’s Sentencing Memorandum and Request for a Reasonable Sentence — United States v. Charno (Dkt. 63, N.D. Ohio)

Summary

Defendant Ross Charno's sentencing memorandum and request for a reasonable sentence, filed May 16, 2022 as Doc 63 in United States v. Ross Charno, Case No. 1:21-cr-00806-PAB, in the U.S. District Court for the Northern District of Ohio. It states that Charno was charged by Information on November 10, 2021 with one count of conspiracy to commit wire fraud under 18 U.S.C. § 371 and pled guilty on December 28, 2021. The memo says he and the government agree on a loss of more than $9,000,000 but less than $25,000,000, and it disputes the Probation Office's intended loss of $35,746,506, which adds thirty-nine PPP loans worth $17,397,114 sought by co-defendant James Stote. It puts the advisory range at thirty-seven to forty-six months and asks for a sentence below it, citing his acceptance of responsibility, his family and $338,090.02 he has ready to pay at sentencing.

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

Filed May 16, 2022 in Ross Charno; one of 4 filings from this case.

Record facts

Court	U.S. District Court for the Northern District of Ohio
Filed	2022-05-16

Cite this document

“Defendant’s Sentencing Memorandum and Request for a Reasonable Sentence — United States v. Charno (Dkt. 63, N.D. Ohio).” U.S. District Court for the Northern District of Ohio, No. 1:21-cr-00806, Doc. 63, filed 2022-05-16. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-wyleia-nashon-williams/2022-05-16-defendant-s-sentencing-memorandum-and-request-for-a-reasonab-dkt-63/, SHA-256 25ab36ef55d8ea7281dc8dac96d19770ad7582e641a3da227ca0beefe9df3ae2.

Search CourtListener for this docket number

Full text

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 1 of 20. PageID #: 581

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO (EASTERN DIVISION)
Case No.: 21-CR-00806-PAB

UNITED STATES OF AMERICA,

Plaintiff,

ROSS CHARNO,

Defendant.
__________________________________________/

DEFENDANT’S SENTENCING MEMORANDUM AND
REQUEST FOR A REASONABLE SENTENCE

Defendant, ROSS CHARNO (“Mr. Charno”), by and through undersigned counsel,

hereby files this Sentencing Memorandum and moves this Court pursuant to 18 U.S.C. § 3553(a)

to impose a reasonable sentence, all facts and circumstances considered.

I. INTRODUCTION

Mr. Charno is a forty-eight (48) year old father of two minor children who also serves as

his wife’s primary caretaker. Mr. Charno understands that he has been charged with, and pled

guilty to, a serious offense. He is ashamed of his conduct, has taken full responsibility for his

actions, and expects to be punished for what he did. However, there are several mitigating factors

which Mr. Charno respectfully brings to this Court’s attention for its consideration when

fashioning the appropriate sentence. Except for the offense conduct at issue here, Mr. Charno has

led an exemplary and law-abiding life. Inter alia, Mr. Charno’s early and complete acceptance of

responsibility, unique family circumstances, the public and private embarrassment of a felony

conviction, the negative impact the conviction will have on Mr. Charno for the remainder of his

life, and his low risk of recidivism all provide ample justification for the Court to impose a below-

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 2 of 20. PageID #: 582

guideline sentence. Such a sentence would be sufficient—but not greater than necessary—to

satisfy the factors outlined in 18 U.S.C. § 3553(a). See Kimbrough v. United States, 552 U.S. 85,

101 (2007).

II. PROCEDURAL HISTORY

1. On November 10, 2021, Mr. Charno was charged by Information with one (1) count

of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371 (Count 1). (D.E. 29).

2. On December 28, 2021, Mr. Charno pled guilty to the Information. (D.E. 37).

3. Sentencing is set for May 23, 2022, at 9:00 A.M.

III. ADVISORY GUIDELINES CALCULATIONS

A. UNCONTESTED GUIDELINE PROVISIONS

U.S.S.G. §2X1.1 is the applicable guideline for violations of 18 U.S.C. § 371. Under

U.S.S.G. §2X1.1(a), the base offense level is determined using the guideline for the substantive

offense (18 U.S.C. § 1343 – Wire Fraud).

U.S.S.G §2B1.1 is the guideline for violations of 18 U.S.C. § 1343. The base offense level

is six (6). See U.S.S.G. §2B1.1(a)(2). The Government and Mr. Charno jointly recommend this

Court find the value of the funds involved to be at least $9,000,000, but no more than $25,000,000,

resulting in a twenty (20)-point increase to the base offense level. See Plea Agreement at ¶ 20

(D.E. 48); see also U.S.S.G. §2B1.1(b)(1)(K).

The parties agree that a two (2)-point downward adjustment is appropriate because Mr.

Charno was a minor participant in the offense conduct. See Plea Agreement at ¶ 20 (D.E. 48);

U.S.S.G. §3B1.2(b). Furthermore, the base offense level should be reduced by two (2) points for

acceptance of responsibility under U.S.S.G. §3E1.1(a). See Plea Agreement at ¶ 21 (D.E. 48). The

Government has also agreed to file a motion requesting an additional one (1) level decrease

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 3 of 20. PageID #: 583

pursuant to U.S.S.G. §3E1.1(b) due to Mr. Charno’s substantial and timely cooperation with the

investigation of his misconduct. Id. (D.E. 48).

B. CONTESTED LOSS AMOUNT CALCULATION

Mr. Charno and the Government agreed that the loss amount attributable to Mr. Charno’s

conduct is more than $9,000,000 but less than $25,000,000. Despite this, the United States

Probation Office insists that Mr. Charno is responsible for an intended loss amount of $35,746,506

because he was aware that one of his co-defendants attempted to process an additional thirty-nine

(39) PPP loans worth $17,397,114. See Presentence Investigation Report at ¶ 16. The Probation

Office’s loss calculation results in a twenty-two (22)-point increase to Mr. Charno’s base offense

level. U.S.S.G. §2B1.1(b)(1)(L). After the undersigned and the Government – separately –

conferred with the Probation office to explain their identical positions on the loss amount, the

Probation Office maintains its request to increase Mr. Charno’s advisory guideline range by two

points.

It is legally insufficient to include the thirty-nine (39) PPP loans sought by co-defendant

James Stote in the loss calculation for Mr. Charno. See United States v. Manatau, 647 F.3d 1048

(10th Cir. 2011) (quoting Giles v. California, 554 U.S. 353, 368 (2008)).

To be included in an advisory guidelines calculation the intended loss must have been an

object of the defendant’s purpose. Manatau, 647 F.3d at 1048. Indeed, “intended loss” is defined

as “(I) the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended

pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government

sting operation, or an insurance fraud in which the claim exceeded the insured value).” See

U.S.S.G. § 2B1.1 cmt. n.3(A)(ii).

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 4 of 20. PageID #: 584

Thus, “something is intended if it is done on purpose – not merely known, foreseen, or

just possible or potentially contemplated.” Manatau, 647 F.3d at 1050 (holding “intended loss”

does not mean a loss that the defendant merely knew would result from his scheme or a loss he

might have possibly and potentially contemplated) (emphasis added).

“The simple fact is [that] intent and knowledge are different things, different as a matter of

their plain meaning, different in their treatment in modern American criminal law.” Id. at 1051.

Consequently, Mr. Charno and the Government submit that the appropriate loss amount for

guideline purposes1 is $18,349,392.00 and a twenty (20) point increase to the base offense level is

proper.

C. TOTAL OFFENSE LEVEL

A total offense level of twenty-one (21) and criminal history category of I results in an

advisory sentencing guideline range of thirty-seven (37) to forty-six (46) months’ imprisonment.

However, as further discussed below, several mitigating factors support a far lower, more

reasonable sentence below the advisory guideline range.

IV. REQUEST FOR A REASONABLE SENTENCE

As this Court well knows, “[t]he Guidelines are not only not mandatory on sentencing

courts; they are also not to be presumed reasonable.” Nelson v. United States, 555 U.S. 350, 352

(2009) (emphasis on original); see also Gall v. United States, 552 U.S. 38, 39 (2007) (a district

judge “may not presume that the Guidelines range is reasonable but must make an

individualized assessment based on the facts presented.”). “The corollary of that proposition is

that district judges have an obligation to consider whether a sentence other than a Guidelines

sentence would be sufficient, but not greater than necessary, to serve the purposes of sentencing”

1
The Parties also agree that the loss amount for restitution purposes is $3,126,567.15.

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 5 of 20. PageID #: 585

under 18 U.S.C. § 3553(a). See United States v. Corsey, 723 F.3d 366, 382 (2d. Cir. 2013)

(Underhill, J., concurring).

Unless otherwise prohibited by law, this Court “may consider, without limitation, any

information concerning the background, character and conduct of [a] defendant.” U.S.S.G. §

1B1.4; see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning

the background, character, and conduct of a person convicted of an offense which a court of the

United States may receive and consider for the purpose of imposing an appropriate sentence.”).

18 U.S.C. § 3553(a) obliges the Court, “in determining the particular sentence to be

imposed[,]” to consider:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;

(2) the need for the sentence imposed to—

(A) reflect the seriousness of the offense, promote respect
for the law, and provide just punishment for the
offense;

(B) provide adequate deterrence to criminal conduct;

(D) provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines—

* * * *

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 6 of 20. PageID #: 586

(5) any pertinent policy statement—

* * * *

(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a)(1)–(7).

Mr. Charno respectfully asks this Court to look beyond the advisory sentencing guideline

range and focus on the principles pronounced by the United States Supreme Court and the factors

set forth in 18 U.S.C. § 3553(a), and thereafter impose a reasonable sentence.

A. MITIGATING FACTORS

1. THE PERSONAL HISTORY AND CHARACTERISTICS OF ROSS CHARNO

Congress has directed that a defendant’s personal characteristics should be considered

equally with “the nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1). Yet these

factors are given no weight in the guidelines calculation; indeed, the Guidelines recognize only the

defendant’s criminal record (providing for higher offense levels for a greater criminal history,

rather than reductions for no prior record). See Rita v. United States, 551 U.S. 338, 364-65 (2007)

(“The Commission has not developed any standards or recommendations that affect sentencing

ranges for many individual characteristics. Matters such as age, education, mental or emotional

condition, medical condition (including drug or alcohol addiction), employment history, lack of

guidance as a youth, family ties, or military, civil, charitable, or public service are. . . matters that

§ 3553(a) authorizes the sentencing judge to consider.”); see also United States v. Prosperi, 686

F.3d 32, 39 & 45 (1st Cir. 2012) (affirming a downward variance from an advisory guideline range

of 87–108 months to home detention because the guidelines did not take into account the personal

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 7 of 20. PageID #: 587

characteristics of the defendant); United States v. Martin, 520 F.3d 87, 93 (1st Cir. 2008) (affirming

a 91-month variance down from the guideline range based in part on the defendant’s “personal

qualities indicating his potential for rehabilitation”). Therefore, we urge the Court to balance the

federal sentencing guideline calculations by considering the history and characteristics of Mr.

Charno that weigh in favor of a significantly below-guidelines sentence.

Mr Charno was born in New York on December 20, 1973, and is one of two siblings.

Although he grew up in a financially secure home, Mr. Charno’s family was lacking in unity,

support, and love, which partly explains why he is estranged from his parents and sister.

Despite this, Mr. Charno had ambitions of creating a better life for himself. After earning

his bachelor’s degree in Economics from American University, Mr. Charno met his first wife. This

relationship proved to be incredibly difficult and traumatic for Mr. Charno because of the financial

expectations that his ex-wife had, and placed upon him. Indeed, Mr. Charno’s first marriage was

characterized by persistent anxiety and insecurity over the possibility of his wife leaving him if he

did not provide everything (materially) she wanted. Unfortunately, Mr. Charno’s fears came true

in 2017, when, after fifteen (15) years of marriage, his ex-wife abandoned him.

Mr. Charno was left with two positives resulting from his relationship with his ex-wife –

his children. Mr. Charno’s true calling has always been, and always will be, fatherhood. When

asked what his proudest achievement in this life has been thus far, Mr. Charno is quick to say his

two daughters, ages fifteen (15) and thirteen (13).

Mr. Charno’s actions here were motivated by the financial pressure he felt based on how

his previous marriage ended (over issues surrounding money), coupled with a desire to give his

present wife (Fernanda) and his children everything they wanted/he believed they deserved. None

of this excuses Mr. Charno’s behavior. The above is a partial explanation for same. Mr. Charno

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 8 of 20. PageID #: 588

acknowledges that he alone is responsible for his present situation, and he is sincerely remorseful

and ashamed for what he has done.

When presented with the opportunity, Mr. Charno took the “easy road” to make money.

Now, upon serious reflection, Mr. Charno understands he did so without appreciating the

consequences of his decisions. To be clear, Mr. Charno’s actions were not mistakes. They were

intentional and deliberate, but not born from malice or a desire to hurt others. On the contrary,

Mr. Charno is a very caring, kind, and loving person.

It is unfortunate that Mr. Charno devoted his considerable potential to the scheme which

has brought him before the Court. Yet, Mr. Charno can be given an opportunity to redeem himself

and to remedy the harm he has caused — and in the process become a productive member of

society once again.

We urge this Court consider the “whole” of Mr. Charno, not just the conduct at issue sub

judice. Ross Charno is a father, friend, hard-worker, and most importantly, a decent human being.

Like all of us at some point in our lives, he made a serious mistake – one that cost him the unity

of his family, his future career in many respects, his reputation, and most importantly, his legal

status and liberty. In its remarks on the effect of incarceration on first-time, nonviolent offenders,

the First Circuit in Prosperi recognized the punishment inherent to those who are thrust into the

criminal justice system:

I think it is very difficult at times, for those of us who are judges or
prosecutors or lawyers, to put ourselves in the shoes of a person with
no prior experience with the criminal justice system who finds
himself or herself accused of a crime. I do not think, sometimes, we
fully recognize the anguish and the penalty and the burden that
persons face when called to account, as these men are, for the wrong
that they committed.

686 F.3d at 48.

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 9 of 20. PageID #: 589

Mr. Charno urges the Court to take his personal characteristics and life history into account

when imposing sentence.

2. MR. CHARNO’S EARLY AND COMPLETE ACCEPTANCE OF
RESPONSIBILITY

One of the goals of sentencing is rehabilitation. See Williams v. New York, 337 U.S. 241,

248 (1949). A defendant's admission of responsibility or expression of contrition “is often a

significant first step towards his rehabilitation and, for that reason, deserving of a possible reward

in the form of a lessened sentence.” Smith v. Wainwright, 664 F.2d 1194, 1196 (11th Cir.1981).

Furthermore, “[a] sentencing court has the power to consider a defendant’s cooperation

under §3553(a), irrespective of whether the Government files a §5K1.1 motion”). United States

v. Robinson, 741 F.3d 588 (5th Cir. 2014); see also United States v. Knox, 573 F.3d 441 (7th Cir.

2009); United States v. Landrón-Class, 696 F.3d 62 (1st Cir. 2012); United States v. Massey,

663 F.3d 852 (6th Cir. 2011); United States v. Leiskunas, 656 F.3d 732 (7th Cir. 2011); United

States v. Doe, 398 F.3d 1254 (10th Cir. 2005).

Unlike defendants who never acknowledge their wrongful behavior, Mr. Charno accepted

full responsibility for his actions, and he is truly remorseful for the harm that his greed has caused.

Mr. Charno understands that his crime was not a victimless one, and that he must atone for same.

He is ashamed of the fact that he undermined the stability of important federal lending programs

designed to provide crucial financing to those reeling from the effects of the COVID-19 Pandemic.

Despite this, Mr. Charno hopes the Court bears in mind his sincere desire to be a productive

member of society and to never reoffend again.

After his arrest, Mr. Charno promptly and completely assisted the Government in every

possible way. Due to the nature of the fraud, Mr. Charno’s conduct saved the Government

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 10 of 20. PageID #: 590

hundreds of hours of time and avoided the substantial costs associated with trial for both this Court

and the Government.

Mr. Charno’s complete acceptance of responsibility for his actions weigh in favor of this

Court granting a downward variance below the advisory guideline range. See Roberts v. United

States, 445 U.S. 552, 558 (1980) (stating a defendant’s cooperation demonstrates that the

defendant “will transgress no more…respond to rehabilitative efforts…[and] not deem himself at

war with his society.”); see also United States v. Ruff, 535 F.3d 999 (9th Cir. 2008) (affirming

sentence of one (1) day in jail and three (3) years of supervised release for defendant who pled

guilty to embezzling $650,000 from non-profit organization over course of three years); United

States v. Gardellini, 545 F.3d 1089 (D.C. Cir. 2008) (imposing sentence of probation for defendant

convicted of filing false income tax return, where guidelines called for 10-16 months’

imprisonment, because of defendant’s “extraordinary “ post arrest conduct).

3. MR. CHARNO’S UNIQUE FAMILY CIRCUMSTANCES

Mr. Charno also asks that the Court, when determining an appropriate sentence, consider

(1) the chronic health issues of his wife, Fernanda, for whom he serves as a daily caretaker, as well

as his two minor children (shared custody with his ex-wife).

In addition to suffering from severe epilepsy, Mr. Charno’s wife has dealt with other

significant health issues, including, but not limited to: diverticulitis, chronic anemia,

perimenopause, sciatica and drop foot, a torn rotator cuff (resulting from a fall after suffering a

mini epileptic episode), and an abdominal hernia – all of which have substantially impaired her

quality of life and, on many days, her ability to provide self-care for ordinary, everyday tasks.

Mr. Charno’s family circumstances do not negate his culpability in anyway, but they are

worthy of strong consideration because of the dependents who rely on Mr. Charno daily. See

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 11 of 20. PageID #: 591

United States v. Husein, 478 F.3d 318 (6th Cir. 2007) (holding district court did not abuse its

discretion by departing downward from advisory sentencing guidelines due to family

circumstances for defendant who pled guilty to conspiracy to possess and distribute ecstasy

because defendant was “irreplaceable” to her family); United States v. Schroeder, 536 F.3d 746

(7th Cir. 2008) (When a defendant presents an argument for a lower sentence based on

extraordinary family circumstances, the relevant inquiry is the effect of the defendant’s absence

on his family members); United States v. Bueno, 549 F.3d 1176 (8th Cir. 2008) (Defendant who

possessed more than 70 kilograms of cocaine given sentence of probation with house arrest for

five years because of his wife’s life-threatening illness and dependence on defendant).

4. MR. CHARNO’S EARLY RESTITUTION

Since September 2020, Mr. Charno has been an employee of Boat Masters, a boat

restoration and detailing business owned by his wife and her nephew. Although he does not earn

a significant income, Mr. Charno is prioritizing the repayment of his restitution. Mr. Charno has

$338,090.02 to pay immediately after sentencing, in addition to the forfeited property turned over

to the Government thus far. Mr. Charno is doing his best to remedy the damage he caused.

Mr. Charno respectfully urges this Court to consider, when fashioning his sentence, his

substantial efforts to pay restitution. See United States v. Kim, 364 F.3d 1235 (11th Cir. 2004)

(holding payment of $280,000 in restitution by defendants, a husband and wife, after they pled

guilty to conspiracy to defraud the United States and fraudulently obtaining government assistance,

respectively, demonstrated their sincere remorse and acceptance of responsibility and was

extraordinary enough to justify downward departure from 24 months to probation and home

detention where defendants dipped significantly into their life savings and voluntarily undertook

enormous amount of debt to pay restitution.); see also United States v. Oligmueller, 198 F.3d

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 12 of 20. PageID #: 592

669, 672 (8th Cir. 1999) (upholding downward departure for extraordinary restitution where

defendant made voluntary payments a year prior to indictment, often worked sixteen-hour days on

his farm to raise the money, took on a second job, turned over his life insurance policy and his

wife’s certificate of deposit, and gave up his home.).

1. DETERRENCE DOES NOT NECESSITATE INCARCERATION IN ALL CASES

In Pepper v. United States, 131 S.Ct. 1229, 1240 (2011), the Supreme Court emphasized

the need for individualized sentencing, reiterating “the principle that ‘the punishment should fit

the offender and not merely the crime.’” (quoting Williams v. New York, 337 U.S. 241, 247

(1949)); see also Miller v. Alabama, 567 U.S. 460, 470 (2012) (“punishment for crime should be

graduated and proportioned to both the offender and the offense”).

Indeed, a term of incarceration “may work to promote not respect, but derision, of the law

if the law is viewed as merely a means to dispense harsh punishment without taking into account

the real conduct and circumstances involved in sentencing.” Gall 552 U.S. at 54. The United States

Sentencing Commission has recognized that alternatives to incarceration “divert offenders from

the criminogenic effects of imprisonment which include contact with more serious offenders,

disruption of legal employment, and weakening of family ties.” See “Sentencing Options Under

the Guidelines,” United States Sentencing Commission (1996).2

Mr. Charno respectfully requests this Court consider that a below-guidelines sentence

would afford him a better opportunity to make amends for his conduct and repay the community

for the funds he improperly received. He is a first-time offender with no pre-existing criminal

history – imprisonment is not necessary to deter him from committing any future crimes. See

2
Available at: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/working-
group-reports/simplification/SENTOPT.pdf

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 13 of 20. PageID #: 593

United States v. Adelson, 441 F. Supp. 2d 506, 514 (S.D.N.Y. 2006), aff’d 301 Fed. Appx 93 (2d

Cir. 2008) (“there is considerable evidence that even relatively short sentences can have a strong

deterrent effect on prospective ‘white collar’ offenders.”); see also “Fifteen Years of Guideline

Sentencing,” United States Sentencing Commission (2004) at 56 (noting that the Sentencing

Guidelines were written, in part, to “ensure a short but definite period of confinement for a larger

proportion of these ‘white collar’ cases, both to ensure proportionate punishment and to achieve

deterrence.”).3

In addition to the punishment imposed by this Court, Mr. Charno will bear the consequences

of this conviction for the rest of his life. See United States v. Stewart, 590 F.3d 93, 141 (2d Cir.

2009) (“the need for further deterrence and protection of the public is lessened because the

conviction itself already visits substantial punishment on the defendant”). In light of these

considerations, Mr. Charno asks this Court to vary below the advisory guideline range because a

term of imprisonment is unnecessary to deter him from committing further crimes.

2. THE NEED TO AVOID UNWARRANTED SENTENCING DISPARITIES

Under 18 U.S.C. §3553(a)(6), courts must consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar conduct.”

Data collected from fraud cases across the country and within the Northern District of Ohio, as well

as a representative sample of sentences, demonstrate a downward variance in this case would not lead

to unwarranted sentence disparities for similarly situated defendants. In fact, the sentences discussed

below illustrate that District Court Judges across the country have imposed sentences based upon the

3
Available at: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
projects-and-surveys/miscellaneous/15-year-study/15_year_study_full.pdf

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 14 of 20. PageID #: 594

circumstances unique to each case, which were appropriate for the individual—the human being—

not merely the person in the courtroom labeled “the Defendant.”

a. NATIONAL AVERAGE LENGTH OF FRAUD SENTENCES

From October 1, 2010, through September 30, 2021, the United States Sentencing

Commission compiled sentencing data for 57,287 cases from every federal jurisdiction. See

“Statistical Information Packet, Fiscal Year 2021, Northern District of Ohio,” United States

Sentencing Commission (April 2022).4 In 16,466 of those cases, defendants received a downward

variance from the advisory guidelines range. Id. at 12.

Of those 16,466 defendants that received downward variances, 1,672 (10.15%) of them

were convicted of fraud related offenses. “2021 Annual Report and Sourcebook of Federal

Sentencing Statistics,” United States Sentencing Commission (2022) at 101.5 The average sentence

for those 1,672 defendants was nineteen (19) months, with an average downward variance

equivalent to a 59.8% decrease from the bottom of the advisory guideline range. Id.

Here, the bottom of the advisory guideline range of thirty-seven (37) to forty-six (46)

months’ imprisonment is nearly double the national average sentence (19 months) for those who

received downward variances. Thus, a downward variance here would conform with the need to

prevent unwarranted disparities in sentencing and the need for the sentence to reflect the

seriousness of the offense.

4
Available at: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-
sentencing-statistics/state-district-circuit/2021/ohn21.pdf
5
Available at: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-
reports-and-sourcebooks/2021/2021_Annual_Report_and_Sourcebook.pdf

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 15 of 20. PageID #: 595

b. TYPICAL FRAUD SENTENCES IN THE NORTHERN DISTRICT OF
OHIO

An analysis of the average sentence length imposed on defendants convicted of fraud

related offenses in the Northern District of Ohio further evidences a downward variance from the

advisory guideline range would not only be reasonable, but also in line with general sentencing

practices in this District. The Sentencing Commission’s “Interactive Data Analyzer” revealed that,

between 2015 and 2021, there were 465 reported cases involving fraud in this District where

defendants had a criminal history category of I (results reproduced below). The average sentence

length for those defendants was seventeen (17) months, with the median sentence being eight (8)

months. It is important to note that these figures include sentencing information for all fraud-

related cases, not only those in which a downward variance was granted.

The thirty-seven (37) to forty-six (46) month advisory guideline range in this case is twice

more than the average sentence imposed on defendants in this District. Consequently, the

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 16 of 20. PageID #: 596

Court should place greater emphasis on the mitigating factors set forth in support of a below-

guidelines sentence. See Adelson, 441 F.Supp.2d at 515 (stating that, “where the Sentencing

Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning

a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines

. . . . is forced to place greater reliance on the more general considerations set forth in section

3553(a), as carefully applied to the particular circumstances of the case and the human being who

will bear the consequences.”).

c. CASES WARRANTING A BELOW-GUIDELINES SENTENCE

“[D]istrict judges have an obligation to consider whether to depart from the Guidelines

sentencing range or to impose a non-Guidelines sentence in every case.” See United States v.

Corsey, 723 F.3d 366, 382 (2d. Cir. 2013) (Underhill, J., concurring).

Defendant acknowledges that prison sentences have been given to many convicted of the

offense Mr. Charno pled guilty to and of which he has been convicted. Mr. Charno recognizes

that every case involves distinct facts and circumstances, the below cases illustrate that below-

guidelines sentences have been deemed sufficient—but not greater than necessary—to satisfy the

factors outlined in 18 U.S.C. 3553(a). We respectfully request this Court also consider the Courts

throughout the country which imposed sentences not including incarceration on defendants

convicted of COVID-19 related fraud. See e.g. United States v. Arman Hayrapetyan, Case No.

20-cr-00579-SVW-6 (C.D. Cal.) (in conspiracy involving approximately $22,000,000 in COVID-

19 relief funds, defendant was sentenced to ten (10) months-probation); United States v. Charles

Hill, Case No. 20-cr-00296 (N.D. Ga.) (in conspiracy case involving a total intended loss of over

$12,000,000, defendant was sentenced to five (5) years’ probation, with the first twenty-seven (27)

months to be served on home detention); United States v. Butziger, Case No. 20-cr-00072 (D.R.I)

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 17 of 20. PageID #: 597

(defendant sentenced to time served and three (3) years of supervised release with the first six (6)

months on home detention for PPP Fraud involving loss of $543,959); United States v. Janet

Jenison, Case No. 21-cr-00090 (S.D. Ohio) (defendant sentenced to five (5) years of probation

including six (6) months of home confinement for PPP fraud involving an intended loss of

$298,719.67); United States v. Jonathan VanScoyk, Case No. 21-cr-01620-JCH-1 (D. Ariz.)

(defendant sentenced to two (2) years of probation for PPP fraud involving loss amount of

$1,233,140); United States v. Christina McConnell, Case No. 21-cr-00216 (M.D. Pa.) (defendant

sentenced to two (2)-years of probation for PPP fraud involving loss amount of $232,000); United

States v. Justin Etwaru, Case No. 21-cr-20156 (S.D. Fla.) (defendant sentenced to two (2) years of

probation for PPP fraud involving loss amount of $57,750); United States v. Matthew Welch,

Case No. 20-cr-00103 (D. Mont.) (defendant sentenced to five (5) years of probation for PPP fraud

involving loss amount of $35,000).

3. MR. CHARNO’S LOW LIKELIHOOD TO RECIDIVATE

In 2004, the Federal Sentencing Commission published a report which presented a

statistical analysis of the characteristics associated with the likelihood of a person recidivating.

The study showed that (1) those sentenced under economic crime guidelines were less likely to

recidivate than those sentenced under other guidelines; (2) older individuals were less likely to

reoffend; (3) first-time offenders were less likely to recidivate than repeat offenders; (4) those who

were employed were less likely to recidivate than those who were unemployed; (5) non-drug users

were less likely to recidivate than drug users; (6) college graduates were significantly less likely

to reoffend than those with lower levels of educational attainment; and (7) people who received

non-incarcerative sentences were less likely to reoffend than those who received sentences

involving incarceration. See “Measuring Recidivism: The Criminal History Computation of the

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 18 of 20. PageID #: 598

Federal Sentencing Guidelines,” United States Sentencing Commission (May 2004) at 28-32.6

Each of these factors strongly supports a finding that Mr. Charno poses no risk of reoffending.

The Eleventh Circuit discussed the likelihood of recidivating in United States v. Clay, 483

F.3d 739 (11th Cir. 2007). In Clay, the District Court sentenced the defendant to 60 months, even

though his guidelines were 188-235 months, because of the District Court’s view that the defendant

was not likely to re-offend. Id. at 742-43. In affirming the defendant’s sentence, the Eleventh

Circuit stressed that a sentencing Court is “require[d] . . . to consider characteristics of the

defendant and the offense that make it more or less likely that the defendant will reoffend.” Id. at

745. Because the defendant in that case had “fundamentally changed since his offense” and

“pose[d] a lesser risk to the community,” the Eleventh Circuit determined that the sentencing court

was correct in issuing a variance. Id. at 746. See also Gall v. United States, 552 U.S. 38, 57–59

(2007); United States v. Cherry, 487 F.3d 366, 369–70 (6th Cir. 2007) (granting significant

downward variance from the guideline range where the defendant presented a low risk to reoffend);

Prosperi, 686 F.3d at 48 (affirming non-incarcerative sentence where there was no risk of

recidivism).

As further proof of the near zero risk of Mr. Charno reoffending, he has religiously

observed the conditions of his release pending disposition of this matter and reported to his

probation officer without fail. See United States v. Munoz-Nava 524 F.3d 1137 (10th Cir. 2008)

(holding district court’s sentence of one year and one day in prison plus one year of home detention

reasonable in drug case where guidelines were 47-56 months, partly because of defendant’s

6
Available at: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2004/200405_Recidivism_Criminal_History.pdf

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 19 of 20. PageID #: 599

“behavior while on a year-and-a-half pretrial release, which the district court found to be

exemplary” showed the defendant was unlikely to reoffend).

Mr. Charno respectfully requests the Court, when fashioning his sentence, to consider his

extremely low likelihood of reoffending.

V. CONCLUSION

“It has been uniform and constant in the federal judicial tradition for the sentencing judge

to consider every convicted person as an individual and every case as a unique study in the human

failings that sometimes mitigate . . . the crime and the punishment to ensue.” Koon v. United States,

518 U.S. 81, 113 (1996).

Mr. Charno will have to live with the knowledge that his actions have irreparably harmed

his children and those closest to him – a sentence more severe than any this Court could impose.

He respectfully asks that this Court downward vary from the advisory guideline range and impose

a fair and just sentence.

Respectfully submitted,

GRAYROBINSON, P.A.
Attorneys for Defendant
333 S.E. 2nd Avenue, Suite 3200
Miami, Florida 33131
Telephone: (305) 416-6880
Facsimile: (305) 416-6887
Brian.Bieber@gray-robinson.com

By: s/Brian H. Bieber
BRIAN H. BIEBER
Florida Bar #8140
Admitted Pro Hac Vice

Case: 1:21-cr-00806-PAB Doc #: 63 Filed: 05/16/22 20 of 20. PageID #: 600

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 16, 2022, I electronically filed the foregoing with the

Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to

all counsel of record.

s/Brian H. Bieber
BRIAN H. BIEBER

File and source

File: gov.uscourts.ohnd.282806.63.0.pdf
Size: 155,449 bytes
SHA-256: 25ab36ef55d8ea7281dc8dac96d19770ad7582e641a3da227ca0beefe9df3ae2
Our copy: gov.uscourts.ohnd.282806.63.0.pdf
Original: archive.org