Plea Agreement for Defendant Raghavender Reddy Budamala (Document 29)
Summary
Plea Agreement for Defendant Raghavender Reddy Budamala, filed June 3, 2022 as Document 29 in No. CR 22-77-ODW, between him and the United States Attorney's Office for the Central District of California. He agrees to plead guilty to counts one and ten of the indictment, charging bank fraud under 18 U.S.C. § 1344(2) and transactional money laundering under 18 U.S.C. § 1957. He agrees to forfeit property including $1,892,706.33 and $27,930.22 in seized bank funds and $970,000 in funds invested in a partnership. The agreement states statutory maximums of 30 years and 10 years, for 40 years in total, and the USAO agrees to move to dismiss the remaining counts.
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“Plea Agreement for Defendant Raghavender Reddy Budamala (Document 29).”
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Case 2:22-cr-00077-ODW Document 29 Filed 06/03/22 Page 1 of 27 Page ID #:130
1 TRACY L. WILKISON
United States Attorney
2 SCOTT M. GARRINGER
Assistant United States Attorney
3 Chief, Criminal Division
GREGORY BERNSTEIN (Cal. Bar No. 299204)
4 Assistant United States Attorney
Major Frauds Section
5 1100 United States Courthouse
312 North Spring Street
6 Los Angeles, California
Telephone: 213-894-3183
7 Email: Gregory.Bernstein@usdoj.gov
8 Attorneys for Plaintiff
UNITED STATES OF AMERICA
9
UNITED STATES DISTRICT COURT
10
FOR THE CENTRAL DISTRICT OF CALIFORNIA
11
UNITED STATES OF AMERICA, No. CR 22-77-ODW
12
Plaintiff, PLEA AGREEMENT FOR DEFENDANT
13 RAGHAVENDER REDDY BUDAMALA
v.
14
Raghavender Reddy Budamala,
15 aka “Reddy Raghav Budamala,”
16 Defendant.
17
18 1. This constitutes the plea agreement between Raghavender
19 Reddy Budamala (aka “Reddy Raghav Budamala”) (“defendant” or
20 “Budamala”) and the United States Attorney’s Office for the Central
21 District of California (the “USAO”) in the above-captioned case.
22 This agreement is limited to the USAO and cannot bind any other
23 federal, state, local, or foreign prosecuting, enforcement,
24 administrative, or regulatory authorities.
25 DEFENDANT’S OBLIGATIONS
26 2. Defendant agrees to:
27 a. At the earliest opportunity requested by the USAO and
28 provided by the Court, appear and plead guilty to counts one and ten
1
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1 of the indictment in United States v. Raghavender Reddy Budamala, CR
2 22-77-ODW, which charge defendant in count one with bank fraud, in
3 violation of 18 U.S.C. § 1344(2); and in count ten with
4 transactional money laundering, in violation of 18 U.S.C. § 1957.
5 b. Not contest facts agreed to in this agreement.
6 c. Abide by all agreements regarding sentencing
7 contained in this agreement.
8 d. Appear for all court appearances, surrender as
9 ordered for service of sentence, obey all conditions of any bond,
10 and obey any other ongoing court order in this matter.
11 e. Not commit any crime. However, offenses that would be
12 excluded for sentencing purposes under United States Sentencing
13 Guidelines (“U.S.S.G.” or “Sentencing Guidelines”) § 4A1.2(c) are
14 not within the scope of this agreement.
15 f. Be truthful at all times with the United States
16 Probation and Pretrial Services Office and the Court.
17 g. Pay the applicable special assessments at or before
18 the time of sentencing unless defendant has demonstrated a lack of
19 ability to pay such assessments.
20 h. Defendant agrees that any and all criminal debt
21 ordered by the Court will be due in full and immediately. The
22 government is not precluded from pursuing, in excess of any payment
23 schedule set by the Court, any and all available remedies by which
24 to satisfy defendant’s payment of the full financial obligation,
25 including referral to the Treasury Offset Program.
26 i. Complete the Financial Disclosure Statement on a form
27 provided by the USAO and, within 30 days of defendant’s entry of a
28 guilty plea, deliver the signed and dated statement, along with all
2
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1 of the documents requested therein, to the USAO by either email at
2 usacac.FinLit@usdoj.gov (preferred) or mail to the USAO Financial
3 Litigation Section at 300 North Los Angeles Street, Suite 7516, Los
4 Angeles, CA 90012. Defendant agrees that defendant’s ability to pay
5 criminal debt shall be assessed based on the completed Financial
6 Disclosure Statement and all required supporting documents, as well
7 as other relevant information relating to ability to pay.
8 j. Authorize the USAO to obtain a credit report upon
9 returning a signed copy of this plea agreement.
10 k. Consent to the USAO inspecting and copying all of
11 defendant’s financial documents and financial information held by
12 the United States Probation and Pretrial Services Office.
13 3. Defendant further agrees:
14 a. To forfeit all right, title, and interest in and to
15 any and all monies, properties, and/or assets of any kind, derived
16 from or acquired as a result of, or used to facilitate the
17 commission of, or involved in the illegal activity to which
18 defendant is pleading guilty, specifically including, but not
19 limited to,
20 i. The real property described in the bill of
21 particulars filed at ECF 23 in United States v. Raghavender Reddy
22 Budamala, CR 22-77-ODW;
23 ii. $1,892,706.33 in in bank funds seized pursuant
24 to a federal seizure warrant executed on or about February 23, 2022,
25 from TMD Ameritrade account ending in 8743 in the name of Budamala;
26 iii. $819.028.07 in bank funds seized pursuant to a
27 federal seizure warrant executed on or about February 22, 2022, from
28 Citibank account ending in 6558 in the name of Hayventure LLC;
3
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1 iv. $27,930.22 in bank funds seized pursuant to a
2 federal seizure warrant executed on or about February 22, 2022, from
3 Bank of America account number ending in 8343 in the name of Reddy
4 Budamala;
5 v. $970,000 in funds invested in CMB Infrastructure
6 Investment Group 75 LP;
7 vi. $250,000 in funds invested in NHK Mansfield LP;
8 vii. $150,000 in funds invested in 529 Investment
9 Plan;
10 viii. $9,998 in cryptocurrency invested on the
11 Gemini Trust cryptocurrency exchange; and
12 ix. Funds previously contained in the Bank of
13 America account ending in 7430 (collectively, the “Forfeitable
14 Property”).
15 b. To the Court’s entry of an order of forfeiture at or
16 before sentencing with respect to the Forfeitable Property and to
17 the forfeiture of the assets.
18 c. That the Preliminary Order of Forfeiture shall become
19 final as to the defendant upon entry.
20 d. To take whatever steps are necessary to pass to the
21 United States clear title to the Forfeitable Property, including,
22 without limitation, the execution of a consent decree of forfeiture
23 and the completing of any other legal documents required for the
24 transfer of title to the United States.
25 e. Not to contest any administrative forfeiture
26 proceedings or civil judicial proceedings commenced against the
27 Forfeitable Property. If defendant submitted a claim and/or petition
28 for remission for all or part of the Forfeitable Property on behalf
4
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1 of himself or any other individual or entity, defendant shall and
2 hereby does withdraw any such claims or petitions, and further
3 agrees to waive any right he may have to seek remission or
4 mitigation of the forfeiture of the Forfeitable Property. Defendant
5 further waives any and all notice requirements of 18 U.S.C.
6 § 983(a)(1)(A).
7 f. Not to assist any other individual in any effort
8 falsely to contest the forfeiture of the Forfeitable Property.
9 g. Not to claim that reasonable cause to seize the
10 Forfeitable Property was lacking.
11 h. To prevent the transfer, sale, destruction, or loss
12 of the Forfeitable Property to the extent defendant has the ability
13 to do so.
14 i. That forfeiture of Forfeitable Property shall not be
15 counted toward satisfaction of any special assessment, fine,
16 restitution, costs, or other penalty the Court may impose, except
17 that the Attorney General or its designee, the Money Laundering and
18 Asset Recovery Section of the Department of Justice, may, in its
19 sole discretion, approve a restoration petition to have the
20 Forfeitable Property applied to the restitution award.
21 j. With respect to any criminal forfeiture ordered as a
22 result of this plea agreement, defendant waives: (1) the
23 requirements of Federal Rules of Criminal Procedure 32.2 and 43(a)
24 regarding notice of the forfeiture in the charging instrument,
25 announcements of the forfeiture at sentencing, and incorporation of
26 the forfeiture in the judgment; (2) all constitutional and statutory
27 challenges to the forfeiture (including by direct appeal, habeas
28 corpus or any other means); and (3) all constitutional, legal, and
5
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1 equitable defenses to the forfeiture of the Forfeitable Property in
2 any proceeding on any grounds including, without limitation, that
3 the forfeiture constitutes an excessive fine or punishment.
4 Defendant acknowledges that the forfeiture of the Forfeitable
5 Property is part of the sentence that may be imposed in this case
6 and waives any failure by the Court to advise defendant of this,
7 pursuant to Federal Rule of Criminal Procedure 11(b)(1)(J), at the
8 time the Court accepts defendant’s guilty plea.
9 THE USAO’S OBLIGATIONS
10 4. The USAO agrees to:
11 a. Not contest facts agreed to in this agreement.
12 b. Abide by all agreements regarding sentencing
13 contained in this agreement.
14 c. At the time of sentencing, move to dismiss the
15 remaining counts of the indictment as against defendant. Defendant
16 agrees, however, that at the time of sentencing the Court may
17 consider any dismissed charges in determining the applicable
18 Sentencing Guidelines range, the propriety and extent of any
19 departure from that range, and the sentence to be imposed.
20 d. Recommend that defendant be sentenced to a term of
21 imprisonment no higher than the low end of the applicable Sentencing
22 Guidelines range, provided that the Court does not depart downward
23 in offense level or criminal history category.
24 e. At the time of sentencing, provided that defendant
25 demonstrates an acceptance of responsibility for the offense up to
26 and including the time of sentencing, recommend a two-level
27 reduction in the applicable Sentencing Guidelines offense level,
28 pursuant to U.S.S.G. § 3E1.1, and recommend and, if necessary, move
6
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1 for an additional one-level reduction if available under that
2 section.
3 f. Except for criminal tax violations (including
4 conspiracy to commit such violations chargeable under 18 U.S.C.
5 § 371), not further criminally prosecute defendant for violations of
6 18 U.S.C. §§ 1001, 1014, 1028, 1028A, 1029, 1341, 1343, 1344, 1956,
7 or 1957, arising out of defendant’s conduct described in the agreed-
8 to factual basis set forth in this agreement. Defendant understands
9 that the USAO is free to criminally prosecute defendant for any
10 other unlawful past conduct or any unlawful conduct that occurs
11 after the date of this agreement. Defendant agrees that at the time
12 of sentencing the Court may consider the uncharged conduct in
13 determining the applicable Sentencing Guidelines range, the
14 propriety and extent of any departure from that range, and the
15 sentence to be imposed after consideration of the Sentencing
16 Guidelines and all other relevant factors under 18 U.S.C. § 3553(a).
17 NATURE OF THE OFFENSE
18 5. Defendant understands that for defendant to be guilty of
19 the crime charged in count one, that is, bank fraud, in violation of
20 18 U.S.C. § 1344(2), the following must be true: First, defendant
21 knowingly devised a plan or scheme to obtain money or property from
22 the financial institution specified in the indictment by false
23 promises or statements. Second, the promises or statements were
24 material, that is, they had a natural tendency to influence, or were
25 capable of influencing, a financial institution to part with money
26 or property. Third, defendant acted with the intent to defraud.
27 Fourth, the financial institution was federally chartered or
28 insured.
7
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1 A defendant’s belief that the victims of the fraud will be paid
2 in the future or will sustain no economic loss is no defense to the
3 crime.
4 6. Defendant understands that for defendant to be guilty of
5 the crime charged in count ten, that is, transactional money
6 laundering, in violation of 18 U.S.C. § 1957, the following must be
7 true: First, defendant knowingly engaged or attempted to engage in a
8 monetary transaction. Second, defendant knew the transaction
9 involved criminally derived property. Third, the property had a
10 value greater than $10,000. Fourth, the property was, in fact,
11 derived from one or more of the specified unlawful activities
12 alleged in the indictment. Fifth, the transaction occurred in the
13 United States.
14 The term “monetary transaction” means the deposit, withdrawal,
15 transfer, or exchange, in or affecting interstate commerce, of funds
16 or a monetary instrument by, through, or to a financial institution.
17 The term “criminally derived property” means any property
18 constituting, or derived from, the proceeds obtained from a criminal
19 offense. The government must prove that defendant knew that the
20 property involved in the monetary transaction constituted, or was
21 derived from, proceeds obtained by some criminal offense. The
22 government does not have to prove that defendant knew the precise
23 nature of that criminal offense, or knew the property involved in
24 the transaction represented the proceeds of one or more of the
25 specified unlawful activities alleged in the indictment.
26 Although the government must prove that, of the property at
27 issue more than $10,000 was criminally derived, the government does
28
8
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1 not have to prove that all the property at issue was criminally
2 derived.
3 PENALTIES AND RESTITUTION
4 7. Defendant understands that the statutory maximum sentence
5 that the Court can impose for a violation of 18 U.S.C. § 1344(2) is:
6 30 years’ imprisonment; a five-year period of supervised release; a
7 fine of $1,000,000 or twice the gross gain or gross loss resulting
8 from the offense, whichever is greatest; and a mandatory special
9 assessment of $100.
10 8. Defendant understands that the statutory maximum sentence
11 that the Court can impose for a violation of 18 U.S.C. § 1957 is: 10
12 years’ imprisonment; a three-year period of supervised release; a
13 fine of $250,000 or twice the gross gain or gross loss resulting
14 from the offense, whichever is greatest; and a mandatory special
15 assessment of $100.
16 9. Defendant understands, therefore, that the total maximum
17 sentence for all offenses to which defendant is pleading guilty is:
18 40 years’ imprisonment, a five-year period of supervised release, a
19 fine of $1,250,000 or twice the gross gain or gross loss resulting
20 from the offenses, whichever is greatest, and a mandatory special
21 assessment of $200.
22 10. Defendant understands that defendant will be required to
23 pay full restitution to the victims of the offenses to which
24 defendant is pleading guilty. Defendant agrees that, in return for
25 the USAO’s compliance with its obligations under this agreement, the
26 Court may order restitution to persons other than the victims of the
27 offense to which defendant is pleading guilty and in amounts greater
28 than those alleged in the count to which defendant is pleading
9
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1 guilty. In particular, defendant agrees that the Court may order
2 restitution to any victim of any of the following for any losses
3 suffered by that victim as a result: (a) any relevant conduct, as
4 defined in U.S.S.G. § 1B1.3, in connection with the offense to which
5 defendant is pleading guilty; and (b) any counts dismissed and
6 charges not prosecuted pursuant to this agreement as well as all
7 relevant conduct, as defined in U.S.S.G. § 1B1.3, in connection with
8 those counts and charges. The parties currently believe that the
9 applicable amount of restitution is approximately $5,151,497, but
10 recognize and agree that this amount could change based on facts
11 that come to the attention of the parties prior to sentencing.
12 11. Defendant understands that supervised release is a period
13 of time following imprisonment during which defendant will be
14 subject to various restrictions and requirements. Defendant
15 understands that if defendant violates one or more of the conditions
16 of any supervised release imposed, defendant may be returned to
17 prison for all or part of the term of supervised release authorized
18 by statute for the offense that resulted in the term of supervised
19 release, which could result in defendant serving a total term of
20 imprisonment greater than the statutory maximum stated above.
21 12. Defendant understands that, by pleading guilty, defendant
22 may be giving up valuable government benefits and valuable civic
23 rights, such as the right to vote, the right to possess a firearm,
24 the right to hold office, and the right to serve on a jury.
25 Defendant understands that he is pleading guilty to a felony and
26 that it is a federal crime for a convicted felon to possess a
27 firearm or ammunition. Defendant understands that the conviction in
28 this case may also subject defendant to various other collateral
10
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1 consequences, including but not limited to revocation of probation,
2 parole, or supervised release in another case and suspension or
3 revocation of a professional license. Defendant understands that
4 unanticipated collateral consequences will not serve as grounds to
5 withdraw defendant’s guilty plea.
6 13. Defendant and his counsel have discussed the fact that,
7 and defendant understands that, if defendant is not a United States
8 citizen, the conviction in this case makes it practically inevitable
9 and a virtual certainty that defendant will be removed or deported
10 from the United States. Defendant may also be denied United States
11 citizenship and admission to the United States in the future.
12 Defendant understands that while there may be arguments that
13 defendant can raise in immigration proceedings to avoid or delay
14 removal, removal is presumptively mandatory and a virtual certainty
15 in this case. Defendant further understands that removal and
16 immigration consequences are the subject of a separate proceeding
17 and that no one, including his attorney or the Court, can predict to
18 an absolute certainty the effect of his conviction on his
19 immigration status. Defendant nevertheless affirms that he wants to
20 plead guilty regardless of any immigration consequences that his
21 plea may entail, even if the consequence is automatic removal from
22 the United States.
23 FACTUAL BASIS
24 14. Defendant admits that defendant is, in fact, guilty of the
25 offenses to which defendant is agreeing to plead guilty. Defendant
26 and the USAO agree to the statement of facts provided below and
27 agree that this statement of facts is sufficient to support the
28 pleas of guilty to the charges described in this agreement and to
11
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1 establish the Sentencing Guidelines factors set forth in paragraph
2 16 below, but is not meant to be a complete recitation of all facts
3 relevant to the underlying criminal conduct or all facts known to
4 either party that relate to that conduct.
5 Between January and August 2019, defendant formed and acquired
6 Hayventure LLC (“Hayventure”), Pioneer LLC (“Pioneer”), and XC
7 International LLC (“XC International”) (collectively “defendant’s
8 companies”), three shell companies with no business operations that
9 were located in the Central District of California.
10 Following the outbreak of Covid-19, defendant submitted to the
11 Small Business Administration (“SBA”) seven fraudulent Paycheck
12 Protection Program (“PPP”) and Economic Injury Disaster Loan
13 (“EIDL”) loan applications on behalf of Hayventure, Pioneer, and XC
14 International (collectively the “SBA loan applications”).
15 On the SBA loan applications, defendant falsely represented to
16 the administrating banks -- which were all financial institutions
17 that the Federal Deposit Insurance Corporation (“FDIC”) insured --
18 that his companies employed dozens of individuals and earned
19 millions of dollars in revenue, and that he needed the money for
20 payroll and business expenses. Based on the false SBA loan
21 applications, the SBA and its lenders funded six of the loans and
22 disbursed $5,151,497 in fraudulent proceeds to defendant’s
23 companies, which defendant then used for non-approved expenditures
24 and for his personal benefit. Defendant applied to have several of
25 the loans forgiven and falsely represented that he used the SBA
26 money entirely for payroll.
27 Specifically, defendant submitted the following false PPP and
28 EIDL loan applications to the SBA and its administrating banks:
12
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1 a. Hayventure PPP loan: on April 30, 2020, Hayventure
2 applied to Celtic Bank for a PPP loan. On the loan application
3 defendant represented that Hayventure operated in the financial
4 industry and had revenue of $500,000, 10 employees, and monthly
5 payroll of $94,639. In support of the application, defendant
6 submitted a forged bank statement purporting to show that in March
7 2020, Hayventure’s operating account had a balance of $345,133, when
8 in reality the account had a balance of $0. In submitting this
9 application, defendant executed a plan and scheme to obtain money
10 from Celtic Bank, a financial institution that the Federal Deposit
11 Insurance Corporation (“FDIC”) insured, by material false and
12 fraudulent pretenses, representations, and promises. Based on the
13 false loan application, Celtic Bank approved the application and
14 disbursed $236,597 in PPP loan funds to Hayventure.
15 b. Hayventure EIDL loan: on June 18, 2020, defendant
16 electronically submitted to the SBA an application for an EIDL loan
17 on behalf of Hayventure, falsely representing that Hayventure had 13
18 employees. On June 22, 2020, in response to the false loan
19 application, the SBA disbursed EIDL loan proceeds in the amount of
20 $149,900 to Hayventure via an electronic money transfer.
21 c. Pioneer PPP loans: on June 10, 2020, defendant
22 electronically applied to Radius Bank for a PPP loan on behalf of
23 Pioneer. On the application, defendant falsely represented that
24 Pioneer had 33 employees and monthly payroll of $264,000. On June
25 19, 2020, in response to the false loan application, Radius Bank
26 disbursed $660,000 in PPP loan proceeds to Pioneer. On October 7,
27 2020, defendant applied to have the loan forgiven, again falsely
28 representing that Pioneer had 33 employees both at the time of the
13
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1 loan and forgiveness applications, and that Pioneer used all
2 proceeds of the loan on payroll costs.
3 On January 20, 2021, defendant electronically submitted an
4 application to Radius Bank for a second draw of PPP loan funding,
5 falsely representing that Pioneer had 33 employees and monthly
6 payroll of $264,000. On March 3, 2021, in response to the false loan
7 application, Radius Bank disbursed $660,000 in additional loan
8 proceeds to Pioneer.
9 d. XC International PPP loans: on August 6, 2020,
10 defendant electronically applied to Newtek Small Business Finance
11 for a PPP loan on behalf of XC International. On the application
12 defendant falsely represented that XC International had 42 employees
13 and monthly payroll of $637,000. In support of the application,
14 defendant submitted a forged letter from a bank employee. On August
15 10, 2020, in response to the false loan application, Newtek
16 disbursed $1,592,500 in PPP loan proceeds to XC International.
17 On February 2, 2021, defendant applied to Newtek for a second
18 draw on the XC International loan in the amount of $1,592,500.
19 Newtek noticed irregularities with the documents defendant provided
20 during the second draw process, suspended defendant’s XC
21 International account, and did not fund the second PPP loan draw.
22 On March 19, 2021, defendant submitted an application to Amur
23 Equipment and Finance (“AEF”) for a second PPP loan on behalf of XC
24 International. On the application defendant falsely represented that
25 XC International had 42 employees with an average monthly payroll of
26 $737,000, and earned $10.167 million of revenue in 2019 and
27 $7,625,248 of revenue in 2020. In support of the loan application,
28 defendant submitted, among other things, a forged bank statement
14
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1 showing that in February 2020 XC International’s bank account had a
2 beginning balance of $2,219,720.63 and a payroll transaction of
3 $737,000, when in reality the account had a zero balance at the
4 beginning of the month and no transactions in February 2020. On
5 March 29 2021, AEF disbursed $1,842,500 in PPP loan proceeds to XC
6 International.
7 At the times defendant submitted the foregoing SBA loan
8 applications on behalf of Hayventure, Pioneer, and XC International,
9 those companies had no employees or substantial business operations.
10 The IRS has no records for the tax years 2019 through 2021 that any
11 of defendant’s three companies filed income or employment tax
12 returns. The California Employment Development Department has no
13 record of defendant’s companies ever operating or paying wages in
14 California. And in February 2021, in connection with an application
15 for a United States passport, defendant told US State Department
16 officials that he wanted the passport because he believed it would
17 help him get a job.
18 Moreover, rather than using the PPP and EIDL loan money
19 (“proceeds”) on SBA-approved business expenses, defendant spent the
20 proceeds, which all represented criminally derived property, on
21 personal expenditures, including real estate, private investments,
22 and credit card, divorce, retail, entertainment, and travel
23 expenses. Several of the personal expenditures defendant made using
24 the Hayventure, Pioneer, and XC International SBA loan proceeds
25 include the following:
26 a. Between April 2020 and March 2021, defendant
27 transferred $2.979 million in proceeds to his personal TD Ameritrade
28 account.
15
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1 b. In March 2021, defendant spent $835,460.95 in
2 proceeds on the purchase of a personal residence located at 33
3 Almond Tree Lane, Irvine, California.
4 c. On March 29, 2021, defendant transferred $970,000 to
5 Company 1 in the form of a personal investment.
6 d. On July 2, 2021, defendant transferred $578,115 to
7 Company 2 for the purchase of real estate at 1300 Latigo Canyon
8 Road, Malibu, California.
9 e. On July 27, 2021, from the Central District of
10 California, defendant transferred $1,211,487.30 to Company 3 for the
11 purchase of a personal real estate investment property located at
12 1857 Phillips Way, Los Angeles, California. This transfer was a
13 monetary transaction through a financial institution, and defendant
14 knew that the transaction involved more than $10,000 in criminally
15 derived property that was in fact derived from bank fraud.
16 f. On December 13, 2021, defendant transferred $250,000
17 in proceeds to Company 4 for a personal investment.
18 g. On April 7, 2021, defendant transferred $150,000 to a
19 state-run investment fund for a personal investment.
20 The amount of fraudulent proceeds that the SBA and its
21 administrating banks disbursed to Budamala was $5,151,497.
22 SENTENCING FACTORS
23 15. Defendant understands that in determining defendant’s
24 sentence the Court is required to calculate the applicable
25 Sentencing Guidelines range and to consider that range, possible
26 departures under the Sentencing Guidelines, and the other sentencing
27 factors set forth in 18 U.S.C. § 3553(a). Defendant understands that
28 the Sentencing Guidelines are advisory only, that defendant cannot
16
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1 have any expectation of receiving a sentence within the calculated
2 Sentencing Guidelines range, and that after considering the
3 Sentencing Guidelines and the other § 3553(a) factors, the Court
4 will be free to exercise its discretion to impose any sentence it
5 finds appropriate up to the maximum set by statute for the crimes of
6 conviction.
7 16. Defendant and the USAO agree to the following applicable
8 Sentencing Guidelines factors:
9 Base Offense Level: 27 U.S.S.G. §§ 2S1.1(a)(1), 2B1.1(a)(1),
10 (b)(1)(J), (b)(17)(A)
11 Money laundering +1 U.S.S.G. § 2S1.1(b)(2)(A)
12 Defendant and the USAO reserve the right to argue that additional
13 specific offense characteristics, adjustments, and departures under
14 the Sentencing Guidelines are appropriate.
15 17. Defendant understands that there is no agreement as to
16 defendant’s criminal history or criminal history category.
17 18. Defendant and the USAO reserve the right to argue for a
18 sentence outside the sentencing range established by the Sentencing
19 Guidelines based on the factors set forth in 18 U.S.C. § 3553(a)(1),
20 (a)(2), (a)(3), (a)(6), and (a)(7).
21 WAIVER OF CONSTITUTIONAL RIGHTS
22 19. Defendant understands that by pleading guilty, defendant
23 gives up the following rights:
24 a. The right to persist in a plea of not guilty.
25 b. The right to a speedy and public trial by jury.
26 c. The right to be represented by counsel –- and if
27 necessary have the Court appoint counsel -- at trial. Defendant
28 understands, however, that, defendant retains the right to be
17
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1 represented by counsel –- and if necessary have the Court appoint
2 counsel –- at every other stage of the proceeding.
3 d. The right to be presumed innocent and to have the
4 burden of proof placed on the government to prove defendant guilty
5 beyond a reasonable doubt.
6 e. The right to confront and cross-examine witnesses
7 against defendant.
8 f. The right to testify and to present evidence in
9 opposition to the charges, including the right to compel the
10 attendance of witnesses to testify.
11 g. The right not to be compelled to testify, and, if
12 defendant chose not to testify or present evidence, to have that
13 choice not be used against defendant.
14 h. Any and all rights to pursue any affirmative
15 defenses, Fourth Amendment or Fifth Amendment claims, and other
16 pretrial motions that have been filed or could be filed.
17 WAIVER OF RETURN OF DIGITAL DATA
18 20. Understanding that the government has in its possession
19 digital devices and/or digital media seized in connection with this
20 case, defendant waives any right to the return of digital data
21 contained on those digital devices and/or digital media and agrees
22 that if any of these digital devices and/or digital media are
23 returned to defendant, the government may delete all digital data
24 from those digital devices and/or digital media before they are
25 returned to defendant.
26 WAIVER OF APPEAL OF CONVICTION
27 21. Defendant understands that, with the exception of an
28 appeal based on a claim that defendant’s guilty pleas were
18
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1 involuntary, by pleading guilty defendant is waiving and giving up
2 any right to appeal defendant’s convictions on the offenses to which
3 defendant is pleading guilty. Defendant understands that this waiver
4 includes, but is not limited to, arguments that the statutes to
5 which defendant is pleading guilty are unconstitutional, and any and
6 all claims that the statement of facts provided herein is
7 insufficient to support defendant’s pleas of guilty.
8 LIMITED MUTUAL WAIVER OF APPEAL OF SENTENCE
9 22. Defendant agrees that, provided the Court imposes a term
10 of imprisonment within or below the range corresponding to an
11 offense level of 25 and the criminal history category calculated by
12 the Court, defendant gives up the right to appeal all of the
13 following: (a) the procedures and calculations used to determine and
14 impose any portion of the sentence; (b) the term of imprisonment
15 imposed by the Court; (c) the fine imposed by the Court, provided it
16 is within the statutory maximum; (d) to the extent permitted by law,
17 the constitutionality or legality of defendant’s sentence, provided
18 it is within the statutory maximum; (e) the amount and terms of any
19 restitution order, provided it requires payment of no more than
20 $5,151,497; (f) the term of probation or supervised release imposed
21 by the Court, provided it is within the statutory maximum; and
22 (g) any of the following conditions of probation or supervised
23 release imposed by the Court: the conditions set forth in Second
24 Amended General Order 20-04 of this Court; the drug testing
25 conditions mandated by 18 U.S.C. §§ 3563(a)(5) and 3583(d); and the
26 alcohol and drug use conditions authorized by 18 U.S.C.
27 § 3563(b)(7).
28
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1 23. The USAO agrees that, provided (a) all portions of the
2 sentence are at or below the statutory maximum specified above and
3 (b) the Court imposes a term of imprisonment within or above the
4 range corresponding to an offense level of 25 and the criminal
5 history category calculated by the Court, the USAO gives up its
6 right to appeal any portion of the sentence.
7 WAIVER OF COLLATERAL ATTACK
8 24. Defendant also gives up any right to bring a post-
9 conviction collateral attack on the convictions or sentence,
10 including any order of restitution, except a post-conviction
11 collateral attack based on a claim of ineffective assistance of
12 counsel, a claim of newly discovered evidence, or an explicitly
13 retroactive change in the applicable Sentencing Guidelines,
14 sentencing statutes, or statutes of conviction. Defendant
15 understands that this waiver includes, but is not limited to,
16 arguments that the statutes to which defendant is pleading guilty is
17 unconstitutional, and any and all claims that the statement of facts
18 provided herein is insufficient to support defendant’s pleas of
19 guilty.
20 RESULT OF WITHDRAWAL OF GUILTY PLEA
21 25. Defendant agrees that if, after entering a guilty plea
22 pursuant to this agreement, defendant seeks to withdraw and succeeds
23 in withdrawing defendant’s guilty pleas on any basis other than a
24 claim and finding that entry into this plea agreement was
25 involuntary, then (a) the USAO will be relieved of all of its
26 obligations under this agreement; and (b) should the USAO choose to
27 pursue any charge that was either dismissed or not filed as a result
28 of this agreement, then (i) any applicable statute of limitations
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1 will be tolled between the date of defendant’s signing of this
2 agreement and the filing commencing any such action; and
3 (ii) defendant waives and gives up all defenses based on the statute
4 of limitations, any claim of pre-indictment delay, or any speedy
5 trial claim with respect to any such action, except to the extent
6 that such defenses existed as of the date of defendant’s signing
7 this agreement.
8 RESULT OF VACATUR, REVERSAL OR SET-ASIDE
9 26. Defendant agrees that if the counts of conviction are
10 vacated, reversed, or set aside, both the USAO and defendant will be
11 released from all their obligations under this agreement.
12 EFFECTIVE DATE OF AGREEMENT
13 27. This agreement is effective upon signature and execution
14 of all required certifications by defendant, defendant’s counsel,
15 and an Assistant United States Attorney.
16 BREACH OF AGREEMENT
17 28. Defendant agrees that if defendant, at any time after the
18 effective date of this Agreement, knowingly violates or fails to
19 perform any of defendant’s obligations under this agreement (“a
20 breach”), the USAO may declare this agreement breached. All of
21 defendant’s obligations are material, a single breach of this
22 agreement is sufficient for the USAO to declare a breach, and
23 defendant shall not be deemed to have cured a breach without the
24 express agreement of the USAO in writing. If the USAO declares this
25 agreement breached, and the Court finds such a breach to have
26 occurred, then: (a) if defendant has previously entered guilty pleas
27 pursuant to this agreement, defendant will not be able to withdraw
28
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1 the guilty pleas, and (b) the USAO will be relieved of all its
2 obligations under this agreement.
3 29. Following the Court’s finding of a knowing breach of this
4 agreement by defendant, should the USAO choose to pursue any charge
5 that was either dismissed or not filed as a result of this
6 agreement, then:
7 a. Defendant agrees that any applicable statute of
8 limitations is tolled between the date of defendant’s signing of
9 this agreement and the filing commencing any such action.
10 b. Defendant waives and gives up all defenses based on
11 the statute of limitations, any claim of pre-indictment delay, or
12 any speedy trial claim with respect to any such action, except to
13 the extent that such defenses existed as of the date of defendant’s
14 signing this agreement.
15 c. Defendant agrees that: (i) any statements made by
16 defendant, under oath, at the guilty plea hearing (if such a hearing
17 occurred prior to the breach); (ii) the agreed to factual basis
18 statement in this agreement; and (iii) any evidence derived from
19 such statements, shall be admissible against defendant in any such
20 action against defendant, and defendant waives and gives up any
21 claim under the United States Constitution, any statute, Rule 410 of
22 the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of
23 Criminal Procedure, or any other federal rule, that the statements
24 or any evidence derived from the statements should be suppressed or
25 are inadmissible.
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1 COURT AND UNITED STATES PROBATION AND PRETRIAL SERVICES
2 OFFICE NOT PARTIES
3 30. Defendant understands that the Court and the United States
4 Probation and Pretrial Services Office are not parties to this
5 agreement and need not accept any of the USAO’s sentencing
6 recommendations or the parties’ agreements to facts or sentencing
7 factors.
8 31. Defendant understands that both defendant and the USAO are
9 free to: (a) supplement the facts by supplying relevant information
10 to the United States Probation and Pretrial Services Office and the
11 Court, (b) correct any and all factual misstatements relating to the
12 Court’s Sentencing Guidelines calculations and determination of
13 sentence, and (c) argue on appeal and collateral review that the
14 Court’s Sentencing Guidelines calculations and the sentence it
15 chooses to impose are not error, although each party agrees to
16 maintain its view that the calculations in paragraph 16 are
17 consistent with the facts of this case. While this paragraph permits
18 both the USAO and defendant to submit full and complete factual
19 information to the United States Probation and Pretrial Services
20 Office and the Court, even if that factual information may be viewed
21 as inconsistent with the facts agreed to in this agreement, this
22 paragraph does not affect defendant’s and the USAO’s obligations not
23 to contest the facts agreed to in this agreement.
24 32. Defendant understands that even if the Court ignores any
25 sentencing recommendation, finds facts or reaches conclusions
26 different from those agreed to, and/or imposes any sentence up to
27 the maximum established by statute, defendant cannot, for that
28 reason, withdraw defendant’s guilty plea, and defendant will remain
23
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1 bound to fulfill all defendant’s obligations under this agreement.
2 Defendant understands that no one -- not the prosecutor, defendant’s
3 attorney, or the Court -- can make a binding prediction or promise
4 regarding the sentence defendant will receive, except that it will
5 be within the statutory maximum.
6 NO ADDITIONAL AGREEMENTS
7 33. Defendant understands that, except as set forth herein,
8 there are no promises, understandings, or agreements between the
9 USAO and defendant or defendant’s attorney, and that no additional
10 promise, understanding, or agreement may be entered into unless in a
11 writing signed by all parties or on the record in court.
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