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Government's Sentencing Position for Defendant Raymond Magana (Document 54)

Summary

Government's Sentencing Position for Defendant Raymond Magana, filed January 10, 2022 as Document 54 in No. 2:21-cr-00007-SB, with a hearing date of January 25, 2022. The memorandum covers the procedural background, the plea agreement and the facts, including a loan of $940,416 that U.S. Bank froze. It says a two-level downward variance and a low-end Guidelines sentence would lower his range from 63-78 to 51-63 months. The government asks for 51 months of imprisonment, 5 years of supervised release, $360,415 in restitution, a $75,000 fine and a $100 special assessment.

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“Government's Sentencing Position for Defendant Raymond Magana (Document 54).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-c-d-cal-no-2-21-cr-00007-dkt-54-c-d-cal-2a99abd7b4/, SHA-256 b0ca284fe6c33bb04ade961b77ef5c7e30732eb9cf6daecdd689463b6d731c90.

Full text

     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 1 of 25 Page ID #:164



1    TRACY L. WILKISON
     United States Attorney
2    BENJAMIN R. BARRON
     Assistant United States Attorney
3    Chief, Santa Ana Branch Office
     CHARLES E. PELL (Cal. SBN 210309)
4    Assistant United States Attorney
     Santa Ana Branch Office
5         411 West Fourth Street, Suite 8000
          Santa Ana, California 92701
6         Telephone: (714) 338-3542
          Facsimile: (714) 338-3561
7         E-mail:    charles.e.pell2@usdoj.gov

8    Attorneys for Plaintiff
     UNITED STATES OF AMERICA
9
10                           UNITED STATES DISTRICT COURT
11                     FOR THE CENTRAL DISTRICT OF CALIFORNIA
12   UNITED STATES OF AMERICA,               No. 2:21-cr-00007-SB

13              Plaintiff,                   GOVERNMENT’S SENTENCING POSITION
                                             FOR DEFENDANT RAYMOND MAGANA
14                   v.

15   RAYMOND MAGANA,                         Hearing Date: January 25, 2022
                                             Hearing Time: 8:30 a.m.
16              Defendant.

17

18

19        Pursuant to Rule 32 of the Federal Rules of Criminal Procedure,
20   plaintiff United States of America, by and through its counsel of
21   record, the United States Attorney for the Central District of
22   California and Assistant United States Attorney Charles E. Pell,
23   hereby files its sentencing position for defendant Raymond Magana.
24        ///
25        ///
26        ///
27

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1         This sentencing position is based upon the attached memorandum

2    of points and authorities, the under seal exhibit, the files and

3    records in this case, and such further evidence and argument as the

4    Court may permit.

5    Dated: January 10, 2022              Respectfully submitted,

6                                         TRACY L. WILKISON
                                          United States Attorney
7
                                          BENJAMIN R. BARRON
8                                         Assistant United States Attorney
                                          Chief, Santa Ana Branch Office
9
10                                        /s/ Charles E. Pell
                                          CHARLES E. PELL
11                                        Assistant United States Attorney
                                          Santa Ana Branch Office
12
                                          Attorneys for Plaintiff
13                                        UNITED STATES OF AMERICA

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1                               TABLE OF CONTENTS

2    DESCRIPTION                                                               PAGE

3    MEMORANDUM OF POINTS AND AUTHORITIES................................1

4    I.    INTRODUCTION...................................................1

5    II.   BACKGROUND.....................................................1

6          A.   Procedural Background.....................................1

7          B.   Plea agreement............................................2

8          C.   Factual Background........................................3

9               1.   Facts agreed to in the plea agreement................3
10              2.   Even though defendant succeeded in tricking
                     Kabbage/Customer’s Bank to issue him a $940,416
11                   loan that was deposited into his bank account at
                     U.S. Bank, U.S. Bank luckily froze those funds,
12                   although defendant refused to agree to send the
                     funds back...........................................5
13
     III. GUIDELINES CALCULATION.........................................6
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           A.   The PSR’s calculations and recommendation.................6
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           B.   Loss amount...............................................7
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           C.   Sophisticated means.......................................9
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     IV.   GOVERNMENT’S POSITION REGARDING SENTENCING....................11
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           A.   Summary of the Government’s Position.....................11
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           B.   Two level downward variance..............................12
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           C.   The § 3553(a) Factors Otherwise Call for a Guidelines
21              Sentence.................................................12

22              1.   Nature, Circumstances, and Seriousness of the
                     Offense.............................................13
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                2.   Defendant’s History and Characteristics.............14
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                3.   Adequate Deterrence to Defendant and the Public.....15
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                4.   Need to Protect the Public from Defendant...........16
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                5.   Need to Avoid Unwarranted Sentence Disparities......17
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           D.   Restitution..............................................18
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1    V.   CONCLUSION....................................................18

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1                                Table of Authorities

2    DESCRIPTION
3    Federal Cases                                                           Page(s)
4    United States v. Horob,
5      735 F.3d 866 (9th Cir.2013)      ................................... 10
     United States v. Jennings,
6
       711 F.3d 1144 (9th Cir. 2013)       ................................. 10
7
     United States v. Lindsey,
8      680 F. App'x 563 (9th Cir. 2017)       .............................. 10
9    United States v. Miller,
       953 F.3d 1095 (9th Cir. 2020)       ................................. 18
10
     United States v. Tanke,
11
       743 F.3d 1296–08 (9th Cir.2014)       ........................... 10, 11
12   United States v. Treadwell,
13     593 F.3d 990 (9th Cir. 2010)      .................................. 18

14   United States v. Young,
       537 F. App'x 777 (9th Cir. 2013)       .............................. 10
15
     Federal Statutes
16
     18 U.S.C. § 1040 ............................................... 1, 2
17
     18 U.S.C. § 3553 ......................................... 12, 13, 18
18
     42 U.S.C. § 5191 ............................................ 3, 5, 6
19
     Other
20
     Rule 32 ........................................................... 4
21
     Section 2B1.1 ................................................. 9, 10
22
     Sentencing Guidelines
23
     U.S.S.G. § 2B1.1 ............................................ 2, 6, 9
24
     U.S.S.G. § 3E1.1 ............................................ 6, 7, 8
25

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1                       MEMORANDUM OF POINTS AND AUTHORITIES

2    I.    INTRODUCTION

3          Defendant Raymond Magana, with criminal history category III,

4    exploited a federal government benefits program during the ongoing

5    international crisis – the COVID pandemic.         Defendant tried to steal

6    millions of dollars of taxpayer guaranteed funds intended to help

7    people impacted by that pandemic, to which he was not entitled; his

8    crime involved an intended loss exceeding $2,000,000, with actual

9    loss of $360,415.    Applying the Section 3553(a) factors, including
10   deterrence, defendant should be sentenced to years in prison.
11         The government agrees with the Guidelines calculations set forth
12   by Probation, which found that defendant has a final offense level of
13   24 and criminal history category of III, resulting in an applicable
14   Guidelines sentencing range of 63 to 78 months of imprisonment.
15         Based upon the facts, the government believes that a low end

16   Guideline sentence, after applying a two-level downward variance for

17   early acceptance of responsibility, is appropriate in this case: 51

18   months of imprisonment, five years of supervised release, and

19   $360,415 restitution.

20   II.   BACKGROUND

21         A.   Procedural Background

22         On January 11, 2021, defendant was charged by criminal

23   information with fraud in connection with major disaster and

24   emergency benefits, in violation of 18 U.S.C. § 1040(a)(2).            (DE 34.)

25         On January 26, 2021, pursuant to a written plea agreement (DE

26   38), defendant pleaded guilty to the sole count of the information.

27   (DE 41 (minutes of change of plea hearing).)

28         On April 6, 2021, the United States Probation Office disclosed
     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 7 of 25 Page ID #:170



1    defendant’s Presentence Investigation Report (PSR). (DE 43.)            The

2    Probation Office has determined that defendant’s total offense level

3    is 24 and his criminal history category is III.         (Id. at 3.)     With

4    said offense level of 24, the PSR calculated the resulting Guidelines

5    sentencing range as 63 to 78 months’ imprisonment, two to five years

6    of supervised release, and a fine of $20,000 to $200,000.           (Id.)     In

7    its disclosed recommendation letter, the Probation Officer recommends

8    a below Guidelines sentence of 51 months of imprisonment, to be

9    followed by five years of supervised release, and restitution of
10   $360,415.    (DE 42 at 1-2.)
11        B.     Plea agreement

12        Defendant pleaded guilty to the single count information against

13   him. (PSR ¶ 1.)    That information charges defendant with violating

14   Title 18, United States Code, Section 1040(a)(2). (Id. ¶ 2.)            The

15   statutory maximum sentence that the Court can impose for a Section

16   1040(a)(2) conviction is 30 years of imprisonment, a five-year period

17   of supervised release, a fine of $250,000 (or twice the gross gain or

18   gross loss resulting from the offense), and a mandatory special

19   assessment of $100.

20        In the plea agreement, the parties stipulated that the following

21   guidelines calculations are correct:

22        Base Offense Level:            7         U.S.S.G. § 2B1.1(a)(1)

23        Section 1040 conduct:         +2         U.S.S.G. § 2B1.1(b)(12)

24   (Id. ¶ 4; Plea Agreement ¶ 14.)       The parties left open whether

25   additional specific offense characteristics, adjustments, and

26   departures applied (id.), but the government agreed not to argue or

27   seek a loss amount greater than $2,237,831 (Plea Agreement ¶ 14).

28

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1         C.   Factual Background

2              1.    Facts agreed to in the plea agreement

3         Defendant agreed to the following facts as part of the plea

4    agreement and change of plea hearing:

5              •     On March 13, 2020, President Donald J. Trump declared
6    an emergency under the Robert T. Stafford Disaster Relief and

7    Emergency Assistance Act, 42 U.S.C. § 5191(b), which authorized

8    assistance for COVID-19 response efforts for all U.S. states,

9    territories, and the District of Columbia.         The Coronavirus Aid,
10   Relief, and Economic Security (CARES) Act is a federal law enacted in
11   around March 2020 and was designed to provide emergency financial
12   assistance to the millions of Americans who are suffering the
13   economic effects caused by the COVID-19 pandemic.          One source of
14   relief provided by the CARES Act was the authorization of up to $349
15   billion in forgivable loans to small businesses for job retention and
16   certain other expenses, through a program referred to as the Paycheck
17   Protection Program (PPP).      Around April 2020, Congress authorized
18   over $300 billion in additional PPP funding.         In December 200,

19   Congress authorized more than $250 billion in additional PPP funding.

20             •     In May and June 2020, defendant submitted applications
21   for PPP loans to banks, which contained false statements about the

22   number of employees and the amount of employee payroll expenses.

23   Those false statements were material because to qualify for PPP

24   loans, those employee-related figures are used to calculate whether

25   the business qualifies for a PPP loan, as well as to determine the

26   amount of PPP funds the business is eligible to receive.

27             •     Specifically, on or about June 3, 2020, defendant
28   submitted a PPP loan application to Kabbage, Customers Bank's PPP

                                            3
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1    vendor, for $940,416 for entity The Building Circle LLC.           In support

2    of that PPP loan application, defendant listed that the average

3    monthly payroll was $376,167, and that the number of employees was

4    40.   Defendant knew that those statements were false.          Further, in

5    support of that loan application, defendant also submitted a 2019

6    Form W-3 (Transmittal of Wage and Tax Statements) for The Building

7    Circle LLC, which reported $4,402,000 in Wages, tips, and other

8    compensation paid, $402,589 in federal income tax withheld, and 40

9    total number of Forms W-2 transmitted for 2019, and also submitted a
10   2020 Form 941 (Employer’s QUARTERLY Federal Tax Return) for the first
11   quarter (Jan., Feb., and March 2020) for The Building Circle LLC,
12   which reported $852,000 in wages, tips, and other compensation paid
13   to 40 employees, with $153,360 in federal income tax withheld for
14   that quarter.   Defendant knew that those tax documents were
15   fabricated and contained false information.         That fraudulent loan
16   application was approved, and on or about June 4, 2020, Customers
17   Bank disbursed $940,416 of PPP loan proceeds to the bank account
18   provided by defendant in the loan application.         The funds in that

19   bank account were frozen, and they were never disbursed to defendant.

20              •    Defendant also submitted other PPP loan applications
21   in 2020, which he knew also contained similar false statements and/or

22   attached similar fabricated tax documents.         One such loan application

23   was approved, and Bank of America disbursed $360,415 as a result.

24   The authorization, transportation, transmission, transfer,

25   disbursement, or payment for the PPP loans submitted by defendant in

26   May and June 2020 was in or affected interstate or foreign commerce.

27              •    The parties believe that the actual loss from the two
28   loans that were approved and disbursed is approximately $360,415.

                                            4
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1    (DE 38 at 11-12.)

2                2.     Even though defendant succeeded in tricking

3                       Kabbage/Customer’s Bank to issue him a $940,416 loan

4                       that was deposited into his bank account at U.S. Bank,

5                       U.S. Bank luckily froze those funds, although

6                       defendant refused to agree to send the funds back.

7         As described in the factual basis of defendant’s plea, on June

8    3, 2020, defendant submitted an application for a $940,416 PPP loan

9    to Kabbage, Customers Bank’s PPP vendor, on behalf of The Building
10   Circle LLC.      That loan had false information and submitted fabricated
11   tax documents.     Unfortunately, that fraudulent loan application was
12   approved, and on or about June 4, 2020, Customers Bank disbursed
13   $940,416 of PPP loan proceeds to the bank account provided by
14   defendant in the loan application, which was at U.S. Bank. 1
15        Defendant never was able to access or withdraw those funds,

16   because the receiving bank, U.S. Bank, froze them.

17        Shortly after those funds hit defendant’s bank account at U.S.

18   Bank, U.S. Bank altered Customers Bank’s fraud department because the

19   month before, U.S. Bank had declined a previous PPP loan application

20   submitted by defendant, due to suspected fraud.          (DE1 ¶¶ 52-53.)

21   U.S. Bank told Customers Bank that they had placed a hold on the

22   funds and advised Customers Bank to work with Wells Fargo to recover

23   the funds from U.S. Bank. (Id. ¶ 56.)        On or about July 30, 2020,

24   U.S. Bank wired back $940,416 to Customers Bank through Wells Fargo

25   Bank.    (Id.)

26

27
          1 Customers Bank funded that loan by wire transfer of $940,416
28   through Wells Fargo Bank, because Kabbage originates its ACH
     transactions through Wells Fargo. (DE1 ¶ 51.)
                                        5
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1         However, prior to returning those funds, U.S. Bank contacted

2    defendant to obtain his consent to return the money back to Customers

3    Bank.     (Id.)

4         On August 5, 2020, a U.S. Bank manager spoke to defendant about

5    returning the funds.     (Id. ¶ 57.)      The manager told defendant that

6    the PPP funds had been sent in error, but defendant countered “We

7    have all the documents, we got approved.”         (Id. ¶ 56b-c.)     Defendant

8    also stated that he would not consent to send the money back.            (Id.

9    ¶ 56d.)
10   III. GUIDELINES CALCULATION

11        A.      The PSR’s calculations and recommendation

12        The PSR calculates defendant’s Guidelines sentencing range as 63

13   to 78 months of imprisonment, based upon a total offense level of 24

14   and criminal history category of III.         (Id. at 3.)   The Probation

15   Officer recommends a below Guidelines sentence of 51 months of

16   imprisonment, to be followed by five years of supervised release, and

17   restitution of $360,415.      (DE 42 at 1-2.)

18        The PSR found that the intended loss was $1,230,000.            (DE 36

19   ¶ 40.)     The PSR’s guidelines calculations are summarized as follows

20   (PSR paragraph identified in parentheses):

21   Base Offense Level:                  7    U.S.S.G. § 2B1.1(a)(1) (¶ 29)

22   $1.5mm < Loss < $3.5mm:            +16    U.S.S.G. § 2B1.1(b)(1)(F) (¶ 32)

23   Sophisticated means:                +2    U.S.S.G. § 2B1.1(b)(10)(C) (¶ 34)

24   Section 1040 conduct:               +2    U.S.S.G. § 2B1.1(b)(12) (¶ 35)

25   Acceptance of Responsibility        –3    U.S.S.G. § 3E1.1 (¶¶ 41-42)

26   Total Offense Level:                24

27   Criminal History Cat.:              III

28   Guidelines Range:                   63 to 78 months

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1         The government does not object to any of the PSR’s Guidelines

2    level calculations, but discusses the loss amount and sophisticated

3    means specific offense characteristics below, because those

4    adjustments were not agreed to in the plea agreement. 2

5         B.         Loss amount

6         In the plea agreement, the parties did not agree on the

7    applicable loss amount: “The government believes that the intended

8    loss from the PPP loan applications that defendant submitted is

9    greater than $1,500,000 and less than $3,500,000, that is,
10   approximately $2,237,831.         The defendant believes that the intended
11   loss was $1,300,831.”         (DE38 at 12-13).
12        The PSR found that the intended loss is $1,555,248, based upon
13   three PPP loan applications filed by defendant.          (PSR ¶ 32.)    The PSR
14   identified those three fraudulent loan applications as:
15              •    $940,416 (The Building Circle LLC);
16              •    $252,917 (Antelope Valley Residential Development); 3
17              •    $360,415 (Forward Builders, LLC)
18   (Id.). 4       While the government believes the following additional loan

19   does not change the Guidelines offense level found by the PSR,

20

21        2 The government agrees that no role adjustment is applicable in
     this case. (PSR ¶ 37.)
22        3 The PSR notes that on a document submitted to Probation,
     defendant reported that he has a 50% ownership of Antelope Valley
23   Residential Development LLC with partner Steven Goldstein. (PSR at 7
     n.2.) Defendant also provided Probation with the Form 1065 (U.S.
24   Return of Partnership Income) for Antelope Valley Residential
     Development for 2019 and 2020 on which he is listed under Designation
25   of Partnership Representative, and he and Goldstein are listed as
     each owning 50 percent. (Id.)
26
          4 Antelope Valley Residential Development, LLC, was formed on
27   December 5, 2016, and Raymond Magana is listed as a Chief Executive
     Officer, and Goldstein is listed as a Manager. (Id. ¶ 13.) Magana
28   is the CEO of The Building Circle, LLC and Forward Builders, LLC.
     (Id. ¶ 14.)
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1    because without that additional loan, the intended loss still falls

2    in the $1.5mm to $3.5mm range, the government does believe that

3    defendant did, in fact, submit that fraudulent loan application.

4    That is, defendant also submitted the following additional loan

5    application, which was ultimately denied by the bank:

6              •   $937,000 (The Building Circle LLC).
7    The criminal complaint against defendant detailed this fraudulent

8    loan application.      (DE1 at 11-15).       Specifically, on or about May 14,

9    2020, defendant submitted an application to U.S. Bank for a PPP loan
10   in the amount of $937,000 on behalf of The Building Circle LLC.                (Id.
11   at 11.)       Like the other PPP loan applications submitted by defendant,

12   this loan application signed by defendant had false information as to

13   number of employees (40) and annual employee salary payments

14   ($4,500,000), and defendant also submitted fabricated federal tax

15   forms.    (Id. at 12.)    Because of the indicia of fraud, the bank

16   ultimately denied this loan application, so no funds were actually

17   disbursed.      (Id. at 13-14.)   (As detailed in the plea agreement,

18   defendant then turned around and submitted another application by The

19   Building Circle LLC, increased to $940,416, to Bank of America, which

20   did fund, but was frozen inside defendant’s bank account.)

21        The government anticipates that the defense may argue that this

22   May 2020 $937,000 loan application that he made for The Building

23   Circle LLC should not be included in the loss amount, because that

24   was basically the same amount ($940,416) for which defendant applied

25   using the same entity in June 2020, so defendant really just wanted

26   $940,000 for that entity, and not double that amount.           Whether that

27   was defendant’s subjective intent is irrelevant for purposes of the

28   loss.    In May 2020, defendant submitted a fraudulent loan application

                                              8
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1    for $937,000 on behalf of The Building Circle LLC to U.S. Bank.                When

2    that application was denied due to suspected fraud, defendant turned

3    around and applied the next month in June 2020 with a different bank,

4    Customers Bank, attempting to obtain $940,416 for that same entity.

5    Thus, defendant made two separate fraudulent applications, at two

6    different dates, submitted to two different victim banks.

7    Accordingly, the amounts from both of those fraudulent loan

8    applications should be included in the applicable loss amount.

9         Thus, the government agrees with the PSR that the 2B1.1
10   enhancement for loss is 16 levels based upon an attempted loss amount
11   falling between $1.5mm and $3.5mm, but believes that the $937,000
12   loan application submitted by defendant in May 2020 should be
13   included in the intended loss figure. 5       Accordingly, the government

14   requests that the Court find that the applicable loss amount is

15   $2,237,831.

16        C.    Sophisticated means

17        The PSR found that Section 2B1.1(b)(10)(C)’s two-level increase

18   for “sophisticated means” applies.        (PSR ¶¶ 33-34.)

19        “For purposes of subsection (b)(10)(C), ‘sophisticated means’

20   means especially complex or especially intricate offense conduct

21   pertaining to the execution or concealment of an offense.”

22   Application Note 9(B), U.S.S.G. § 2B1.1.         In the Ninth Circuit, this

23   enhancement does not require a highly complex or brilliant scheme.

24

25
          5 In the plea agreement, the government agreed not to argue or
26   seek a loss amount greater than $2,237,831. The government did not
     include the $252,917 loan in the applicable loss amount because that
27   loan was submitted by Goldstein and not defendant. Consistent with
     the approach it used with the sentencing of co-schemer Goldstein, the
28   government cabined the loss amount to the loans actually submitted or
     signed by the respective schemer.
                                        9
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1    E.g., United States v. Jennings, 711 F.3d 1144, 1145 (9th Cir. 2013)

2    (“Conduct need not involve highly complex schemes or exhibit

3    exceptional brilliance to justify a sophisticated means

4    enhancement.”). 6   Nonetheless, this enhancement does require

5    something more than the mine run offense.         E.g., United States v.

6    Lindsey, 680 F. App'x 563, 567 (9th Cir. 2017) (“This enhancement

7    applies when the criminal scheme is extensively planned and is more

8    sophisticated than a routine offense.”)         And that makes sense,

9    because otherwise, the enhancement would apply to almost all fraud
10   cases to which Section 2B1.1 otherwise applies.
11        The PSR’s conclusion that the enhancement applies here is

12   supported by the facts.      In the plea agreement, defendant admitted

13   that he submitted multiple fabricated federal tax forms, including a

14   2019 Form W-3 (Transmittal of Wage and Tax Statements) and a 2020

15   Form 941 for The Building Circle LLC entity.         (DE38 at 12.)

16   Likewise, the PSR describes other fraudulent federal tax documents

17

18
          6 See also United States v. Tanke, 743 F.3d 1296, 1307–08 (9th
19   Cir.2014) (“Although Tanke did not use ‘fictitious entities,
     corporate shells, or offshore financial accounts,’ as the Sentencing
20   Commission's commentary contemplates, he created at least six false
     invoices and falsified carbon copies of checks in Azteca's check
21   register on at least 10 occasions to conceal the payments.”); United
     States v. Horob, 735 F.3d 866, 872 (9th Cir.2013) (“Horob did more
22   than lie to obtain a loan. He manipulated several people to lie for
     him, used several different bank accounts (including accounts of
23   other people) to move funds around, and fabricated numerous
     documents. Moreover, the complicated and fabricated paper trail made
24   discovery of his fraud difficult.”); Jennings, 711 F.3d at 1145
     (“Conduct need not involve highly complex schemes or exhibit
25   exceptional brilliance to justify a sophisticated means enhancement.
     Defendants’ effort to conceal income by using a bank account with a
26   deceptive name was sufficiently sophisticated to support application
     of the sentencing enhancement.”); United States v. Young, 537 F.
27   App'x 777, 781 (9th Cir. 2013) (affirming sophisticated means
     enhancement, noting “Here, the government offered considerable
28   evidence that Young used multiple accounts and corporations as part
     of his fraudulent scheme.”).
                                       10
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1    that defendant submitted in the offense.         (PSR ¶¶ 20 n.1, 34.)      The

2    criminal complaint describes the fraudulent documents too.            (DE1 at

3    12-13, 15-16, 26.)     Making up the number of employees and payroll on

4    different loan applications and submitting multiple different types

5    of fabricated tax documents, for multiple different business

6    entities, to different banks, is sufficient to meet the Ninth

7    Circuit’s threshold for the sophisticated means enhancement to apply.

8    Accord, e.g., Tanke, 743 F.3d at 1307–08 (finding that enhancement

9    applied because defendant “created at least six false invoices and
10   falsified carbon copies of checks in Azteca's check register on at
11   least 10 occasions to conceal the payments.”).
12   IV.   GOVERNMENT’S POSITION REGARDING SENTENCING

13         A.   Summary of the Government’s Position

14         Defendant exploited a government benefits program during the

15   international COVID pandemic crisis.        He committed the serious

16   federal crime of fraud involving COVID-related PPP benefits, where

17   defendant made false statements and submitted fabricated tax

18   documents to try to steal more than $2,000,000 in PPP funds that were

19   intended to assist employees who had been adversely affected by the

20   COVID pandemic.    While he did not succeed in tricking the banks to

21   give him all the funds for which he had applied, he did obtain more

22   than $360,000 through fraud.       Simply put, defendant stole taxpayer

23   guaranteed funds intended to help those who had been hurt by the

24   COVID pandemic.    And he did so more than once, with multiple

25   fraudulent loan applications.       And he used multiple fabricated

26   federal tax documents to effectuate his fraud.

27         In addition to the seriousness of the crime, defendant’s

28   sentence must address general deterrence – to stop others from trying

                                            11
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1    the same thing.    Defendant also must be specifically deterred: not

2    only have the lenient sentences he previously received failed to send

3    him the message that he must stop committing crimes, but the

4    seriousness of his crimes have increased to the instant fraud

5    involving an intended loss in the millions.

6         The government does not object to the Guidelines calculations of

7    the Probation Office.     As to the appropriate sentence, the government

8    also agrees with Probation’s recommended sentence and believes that a

9    low-end Guidelines sentence – after applying a COVID-based two-level
10   variance – is appropriate in this case.
11        As discussed below, the government respectfully recommends the

12   same sentence recommended by Probation: 51 months’ imprisonment,

13   followed by 5 years of supervised release, and $360,415 in

14   restitution payable to Bank of America.

15        B.    Two level downward variance

16        In the plea agreement, the government agreed that defendant was

17   entitled to the so-called COVID variance, that is, a two-level

18   downward variance as recognition of defendant’s early acceptance of

19   responsibility.    (DE38 ¶ 5f.)     Defendant entered a plea agreement

20   shortly after his house was searched, accepted responsibility by

21   interviewing with the government, and has otherwise demonstrated

22   early acceptance of responsibility.         Thus, the government believes

23   that this two-level downward variance is appropriate in this case.

24        C.    The § 3553(a) Factors Otherwise Call for a Guidelines

25              Sentence.

26        Under 18 U.S.C. § 3553(a), the Court should impose a sentence

27   “sufficient, but not greater than necessary, to comply with the

28   purposes” of sentencing as set forth in § 3553(a)(2).           The Court is

                                            12
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1    to consider various factors in determining the particular sentence,

2    including:

3         (1) the nature and circumstances of the offense and the

4         history and characteristics of the defendant; [¶] (2) the

5         need for the sentence imposed –- [¶] (A) to reflect the

6         seriousness of the offense, to promote respect for the law,

7         and to provide just punishment for the offense; [¶] (B) to

8         afford adequate deterrence to criminal conduct; [and] (C)

9         to protect the public from further crimes of the defendant;
10        . . . [¶] (4) the kinds of sentence and the sentencing
11        range established [in the Sentencing Guidelines]; . . . [¶]
12        (6) the need to avoid unwarranted sentence disparities
13        among defendants with similar records who have been found
14        guilty of similar conduct; and [¶] (7) the need to provide
15        restitution to any victims of the offense.
16   18 U.S.C. § 3553(a).
17        Here, application of those factors supports the conclusion that
18   the sentence recommended by Probation and the government, which is a

19   below-Guidelines sentence, is a reasonable and appropriate sentence

20   for defendant.

21              1.    Nature, Circumstances, and Seriousness of the Offense

22        Defendant committed a very serious federal crime, involving an

23   intended loss of more than $2,000,000 of taxpayer funds (and more

24   than $360,000 of actual loss), which he perpetrated not only with

25   false statements, but also with multiple fabricated tax documents.

26   And as shown by the government’s exhibit, 7 defendant not only did

27

28        7 The government is filing the exhibit under seal, because it
     includes tax information.
                                       13
     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 19 of 25 Page ID #:182



1    defendant submit the fraudulent loan applications, but when the bank

2    started asking questions about one of them, rather than withdraw his

3    fraudulent request, he continued to try to pursue his scheme to steal

4    the money, including by attempting to shift blame to his CPA for any

5    discrepancies in the information he had submitted.          (Exhibit-1 at

6    MAGANA_00002508).      Moreover, when defendant did succeed in tricking

7    one bank to approve his fraudulent application and $940,416 was wired

8    into one of his bank accounts, defendant refused to consent to return

9    those fraudulently obtained funds when the bank asked him.
10          Defendant did not file just one loan application with one false
11   statement; he filed multiple fraudulent loan applications.            He
12   submitted those fraudulent applications to different banks.            Not only
13   did defendant submit multiple loan applications with false
14   statements, but he also submitted multiple fabricated tax documents
15   to attempt to substantiate the false information on the fraudulent
16   loan applications.
17          All of the above shows a level of criminal activity that should
18   be punished.

19               2.   Defendant’s History and Characteristics

20          Defendant’s history and characteristics lack significant

21   mitigation in this case.      Defendant has a sizable criminal history,

22   which resulted in a Criminal History Category of III.           (PSR ¶¶ 47-

23   51).    For example, in 2012, defendant was convicted of owning a chop

24   shop.    (Id. ¶ 49.)   Two years later, defendant was convicted of

25   vehicular manslaughter.      (Id. ¶ 50.)

26          Defendant’s upbringing appears to have been stable, and he

27   maintains close relationships with his parents and siblings.            (Id.

28   ¶¶ 57-60.)

                                            14
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1         Moreover, defendant appears to have been able to make a

2    legitimate living, including during 2019, making a quite good living

3    of $13,000 monthly, and before that, earning $75,000 per year from

4    2002 to 2014, before he went to jail.        (Id. ¶¶ 78-80.)     Likewise,

5    defendant owns his four-bedroom, three-and-half-bathroom residence

6    and owned several other properties through his business, some of

7    which he has now sold since his arrest.         (Id. ¶¶ 66-68, 81, 86-88.)

8               3.    Adequate Deterrence to Defendant and the Public

9         Based upon his criminal history and the facts of this case,
10   specific deterrence appears to apply in this case.          As defendant’s
11   criminal history detailed in the PSR shows, defendant has committed
12   various criminal offenses but has usually escaped meaningful
13   punishment, by receiving probation or light sentences – with the
14   longest sentence of 365 days in jail.        Those short or probationary
15   sentences do not seem to have deterred defendant from committing
16   crimes.   To the contrary, it appears that defendant’s criminal
17   conduct has escalated to the instant scheme - a serious federal crime
18   involving millions of dollars of fraud. 8

19        Likewise, general deterrence is a very important consideration

20   in this case.    The need for public deterrence supports the

21   recommended sentence.     Given the prevalence of COVID-related fraud

22   against the government – billions of dollars in PPP-related fraud

23   during the past couple years, general deterrence would be served by a

24   sizable prison sentence in this case, so that people stop committing

25   these crimes.

26

27
          8 The PSR also reports that defendant’s probation from his 2012
28   conviction was revoked in 2014, and he was sentenced to 180 days
     jail. (PSR ¶ 49.)
                                       15
     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 21 of 25 Page ID #:184



1         The COVID-19 pandemic is not over.         The PPP loan program has now

2    been addressing an important next step — loan forgiveness.            For

3    example, the SBA announced that as of September 21, 2021, it had

4    recorded its one millionth PPP loan forgiveness application for

5    borrowers seeking forgiveness for loans of $150,000 or less, totaling

6    more than $17 billion of requested relief. 9        In order for PPP loans

7    to be forgiven, businesses will need to certify that they used the

8    funds for their intended purpose —for payroll, rent, and utilities.

9    News of PPP loan fraud will likely reach others who applied for such
10   relief or who were intended to do so, even though either the loan was
11   fraudulently obtained, or loan forgiveness is not proper.
12   Accordingly, the sentence that the Court imposes in this case may
13   serve as a warning to others to not commit a similar crime.
14        In short, people who commit COVID-related benefits fraud against
15   the government need to know that they will be held accountable - and
16   will be imprisoned for years in federal prison.
17              4.    Need to Protect the Public from Defendant

18        The government agrees with Probation that imposing years of

19   supervised release is appropriate in this case.          Given defendant’s

20   criminal history and the instant criminal conduct, the government

21   agrees and recommends five years of supervised release, so that the

22   Probation Department and the Court can monitor defendant and prevent

23   recidivism.

24

25

26        9 “SBA Administrator Announces New Paycheck Protection Program
     (PPP) Milestone: In Less Than Two Months, One Million Borrowers Apply
27   for Direct Forgiveness through Agency’s PPP Portal,” available at
     https://www.sba.gov/article/2021/sep/22/sba-administrator-announces-
28   new-paycheck-protection-program-ppp-milestone-less-two-months-one
     (visited 01/05/2022).
                                       16
     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 22 of 25 Page ID #:185



1                 5.   Need to Avoid Unwarranted Sentence Disparities

2          The recommended below-Guidelines sentence of 51 months of

3    imprisonment does not appear to be disparate to a sentence for a

4    fraud conviction involving a loss exceeding two million dollars, in

5    particular, COVID-related fraud.       While each case must be judged on

6    its specific facts and sentences nationwide for PPP loan fraud have

7    run from months to multiple years in prison, some recent sentences

8    for PPP fraud during the last couple months include 110 months’

9    imprisonment for a $2.6 million intended loss/$1.6 million actual
10   loss (November 2021), 10 41 months’ imprisonment in a case involving a
11   $7.9 million loss (January 4, 2022), 11 and 17, six, and five-year

12   sentences for a scheme involving more than $20 million loss (November

13   2021). 12    The recommended sentence falls within those ranges.

14         On the other hand, the government believes that the sentence for

15   defendant’s co-schemer, Steven Goldstein, should be considered when

16   fashioning defendant’s sentence, to avoid potential disparity. 13

17   However, there are some differences between defendant and Goldstein,

18   including criminal history and loss amount. 14        Nonetheless, with

19

20         10   United States v. Lee E. Price, III, 4:20-cr-00522-1 (N.D.
     Texas).
21         11United States v. Hunter VanPelt, 1:21-cr-00006-MHC (N.D. Ga.).
          12 United States v. Richard Ayvazyan, et al., 2:20-cr-00579-SVW
22
     (C.D. Cal.); see also “Seven Members of Los Angeles-Based Fraud Ring
23   Sentenced for Multimillion-Dollar COVID-19 Relief Scheme/Leader
     Sentenced to 17 Years in Prison,” available at
24   https://www.justice.gov/opa/pr/seven-members-los-angeles-based-fraud-
     ring-sentenced-multimillion-dollar-covid-19-relief (last visited
25   01/04/2022).
          13 On September 14, 2021, the Court sentenced Goldstein to 12
26   months and one day of prison. (DE 54, 55, United States v.
     Goldstein, 2:20-cr-00597-SB.)
27
          14 Putting aside the intended loss figure, Goldstein caused

28   $655,000 of PPP loan funds to be issued, while defendant caused about
                                             (footnote cont’d on next page)
                                       17
     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 23 of 25 Page ID #:186



1    respect to the loans at issue, the government does not believe

2    defendant is any more culpable nor occupied a higher and different

3    role than co-schemer Goldstein.

4         Nonetheless, because federal sentences must be individualized,

5    “sentencing disparity is only one factor a court considers in

6    crafting an individualized sentence under § 3553(a). A district court

7    need not, and, as a practical matter, cannot compare a proposed

8    sentence to the sentence of every criminal defendant who has ever

9    been sentenced before.     Too many factors dictate the exercise of
10   sound sentencing discretion in a particular case to make the inquiry
11   [defendant] urges helpful or even feasible.”         United States v.
12   Treadwell, 593 F.3d 990, 1012 (9th Cir. 2010). 15

13        Based upon the above, the government believes that a two-level

14   below-Guidelines sentence of 51 months of imprisonment is reasonable

15   and will adequately address the applicable Section 3553(a) factors.

16        D.    Restitution

17        In the plea agreement, defendant agreed to make restitution.

18   The PSR correctly calculated restitution as $360,415. 16          Assuming

19   defendant pays all the restitution before sentencing, the government

20   believes he should be commended for doing so.

21   V.   CONCLUSION

22        During the past couple years, tens of billions of dollars in PPP

23   loans are suspected to have involved fraud.         E.g., “15% of Paycheck

24
     double that, $1,300,831, of PPP loan funds to be issued. Only
25   through the admirable acts of U.S. Bank, which froze the funds issued
     by Customers Bank, was defendant’s actual loss limited to $360,415.
26        15 Overruled on other grounds by United States v. Miller, 953
     F.3d 1095 (9th Cir. 2020)
27
          16 In preparation for sentencing, federal agents recently
28   confirmed with the victim that the outstanding loan amount remains
     $360,415.
                                       18
     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 24 of 25 Page ID #:187



1    Protection Program Loans Could be Fraudulent, Study Shows; Some $76

2    billion of the program’s $800 billion in loans may have been taken

3    improperly, a new paper concludes,” New York Times (August 17,

4    2021). 17   Similarly, during the COVID pandemic over the past two

5    years, criminals have robbed the state of California of billions to

6    fraudulently obtain COVID-related unemployment benefits from

7    California EDD.    E.g., “California officials say unemployment fraud

8    now totals more than $11 billion,” Los Angeles Times (Jan. 25,

9    2021); 18 “1.4 million unemployment fraud cases could take a month to
10   fix, EDD says,” Orange County Register (Jan. 12, 2021). 19
11         Defendant was part of that COVID fraud scourge.          He exploited a

12   federal program intended to help others who were adversely affected

13   by the worldwide COVID pandemic, and he perpetrated his scheme by

14   using false statements and fabricated tax documents.           Defendant filed

15   several PPP loan applications that had false statements in his

16   attempts to obtain more than two million dollars of taxpayer funds to

17   which he was not entitled.      He went even further and submitted

18

19
           17Available at https://www.nytimes.com/2021/08/17/business/ppp-
20   fraud-covid.html (last visited 01/05/2022); see also “$84 Billion in
     PPP Loans Are Potentially Fraudulent, But Only 1% of Funds Have Been
21   Seized,” Newsweek (March 24, 2021), available at
     https://www.newsweek.com/84-billion-ppp-loans-are-potentially-
22   fraudulent-only-1-funds-have-been-seized-1578708 (last visited
     04/12/2021).
23        18 Available at https://www.latimes.com/california/story/2021-01-
     25/california-unemployment-fraud-11-billion-investigations (last
24   visited 03/29/2021.)
25        19 Available at https://www.ocregister.com/2021/01/12/1-4-
     million-unemployment-fraud-one-month-fix-edd-jobs-layoff-economy/
26   (last visited 03/29/2021). See also “Inland Empire Woman Sentenced
     to Over 3 Years in Prison for Using Stolen Identities to Fraudulently
27   Obtain Over $500,000 in COVID Relief,” available at
     https://www.justice.gov/usao-cdca/pr/inland-empire-woman-sentenced-
28   over-3-years-prison-using-stolen-identities-fraudulently (last
     visited 01/07/2022).
                                       19
     Case 2:21-cr-00007-SB Document 54 Filed 01/10/22 Page 25 of 25 Page ID #:188



1    fabricated tax documents to support his false statements and

2    fraudulent loan applications.       Defendant went even further by

3    continuing to pursue his fraudulent applications with the banks when

4    they initially identified discrepancies in his information, and in

5    one instance, defendant appears to have blamed his CPA for that

6    discrepancy.    When one bank identified his fraud after it had been

7    tricked into wiring him $940,416, defendant refused to consent to

8    return those funds.     By his fraud, defendant was ultimately able to

9    steal more than a million dollars in PPP funds.
10        General and specific deterrence are important considerations
11   here.     Defendant’s prior lenient sentences have not deterred him from
12   continuing to break the law.       Moreover, a sizable federal prison
13   sentence in this case should send a strong message to others that
14   such COVID relief fraud will be swiftly and appropriately punished
15   and that those engaging in it can and will be held accountable.
16        On the other hand, defendant did quickly admit culpability and
17   pleaded guilty immediately thereafter.        That, however, is largely
18   addressed by the two-level downward variance and low end Guidelines

19   sentence recommended by the government, which if granted, lowers his

20   sentencing range by about a year, from 63-78 to 51-63 months.

21        For the foregoing reasons, the government respectfully requests

22   that this Court impose the following sentence:

23        1.     51 months of imprisonment;

24        2.     5 years of supervised release;

25        3.     $360,415 restitution;

26        4.     $75,000 fine; and

27        5.     $100 special assessment.

28

                                            20


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