Position of the United States in Regard to Sentencing — United States v. Scott Suber (E.D. Va., Dkt. 30)

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The Position of the United States in Regard to Sentencing in United States of America v. Scott Suber, Criminal No. 2:20cr110, Case 2:20-cr-00110-RGD-LRL, Document 30, filed 05/13/21, in the U.S. District Court for the Eastern District of Virginia, Norfolk Division. The government states that it has no objection to the presentence report, which calculates a Total Offense Level of 20, Criminal History Category I and an advisory range of 33-41 months. It argues that the defendant's objection to a guideline loss amount of $350,000 is meritless and recommends a prison term of 33 months. The signature block names Alan M. Salsbury, Assistant United States Attorney.

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Case 2:20-cr-00110-RGD-LRL Document 30 Filed 05/13/21 Page 1 of 5 PageID# 168




                         IN THE UNITED STATES DISTRICT COURT

                        FOR THE EASTERN DISTRICT OF VIRGINIA

                                      NORFOLK DIVISION

UNITED STATES OF AMERICA                      )
                                              )       CRIMINAL NO. 2:20cr110
               v.                             )
                                              )
SCOTT SUBER,                                  )
                                              )
           Defendant.                         )

           POSITION OF THE UNITED STATES IN REGARD TO SENTENCING

       Now comes the United States, by its undersigned counsel, and for its position in regard to

sentencing, states that it has no objection to the presentence report, and that under the Sentencing

Guidelines the probation officer has correctly calculated a Total Offense Level of 20 and a

Criminal History Category I for the defendant. PSR ¶¶ 30-54. This computation results in an

advisory guideline prison range of 33-41 months under the Sentencing Table. PSR ¶ 94. For

the reasons discussed below, the Government recommends that the Court sentence the defendant

to a prison term of 33 months, at the low end of the guideline range.

                                 A. The Sentencing Guidelines

       Although a sentencing court may not presume that a sentence within the advisory

Guidelines range is reasonable, the Guidelines remain a significant component of the sentencing

process because the court “must first calculate the Guidelines range, and then consider what

sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18

U.S.C. § 3553(a), explaining any variance from the former with reference to the latter.” Nelson

v. United States, 555 U.S. 350, 351, 129 S. Ct. 890, 891-92 (2009).

       As noted, the Government has no objections to the calculation of the advisory sentencing
Case 2:20-cr-00110-RGD-LRL Document 30 Filed 05/13/21 Page 2 of 5 PageID# 169




guideline range by the probation officer. The defendant objects to the guideline loss amount of

$350,000. ECF No. 18-1. The objection is meritless. The defendant knew that a fraudulent

PPP loan application would be filed on behalf of his business. ECF No. 8. In fact, he prepared

an altered bank statement to be submitted in support of the fraudulent application. Id. Celtic

Bank approved the loan application and wire transferred the loan proceeds to a Wells Fargo bank

account that the defendant maintained in the name of his business. Id. The defendant readily

accepted the loan proceeds and in fact used a portion of them for his own personal benefit,

including making large cash withdrawals and traveling to Las Vegas. Id. Having knowingly

accepted the PPP loan proceeds based on a fraudulent application, his argument that the

Guideline loss should be less that the loan amount of $350,000 is untenable. As stated in

U.S.S.G. § 2B1.1, comment (n.3(iv)), for purposes of loss under § 2B1.1(b)(1), the “reasonably

foreseeable pecuniary harm” is the “pecuniary harm that the defendant knew or, under the

circumstances, reasonably should have known, was a potential result of the offense.” (emphasis

added). That amount is $350,000.

       The defendant’s argument that the amount of loss should be reduced because the

Government recovered some of the loan proceeds is also baseless. These recoveries were made

after the commission of the crime. The Government collected $165,008.14 from Wells Fargo

as the result of a seizure warrant and the defendant signed over a cashier’s check for $17,000,

thereby reducing the amount he owes in restitution to $167,991.86. PSR ¶ 97. As the Court

knows, the amount owed by a defendant for restitution purposes and the amount of loss for

Guideline purposes are often different. Here, the crime had already been committed before the

Government made any partial recovery, and therefore the loss amount for purposes of the

Guidelines remains at $350,000.




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Case 2:20-cr-00110-RGD-LRL Document 30 Filed 05/13/21 Page 3 of 5 PageID# 170




       Nor, as suggested by the defendant in his objection, should the Guideline loss amount be

reduced by $105,000 of the loan proceeds “paid to unindicted co-conspirators” who were

complicit in making the fraudulent loan application. ECF No. 18-1. The notion that a

defendant’s Guideline loss should be reduced by the amount of money paid to unindicted co-

conspirators is simply contrary to reason.

       Accordingly, the defendant’s objection to the Guideline loss amount of $350,000 should

be overruled.

                             B. The Statutory Sentencing Factors

       In considering the nature and circumstances of the offense, it is notable that the defendant

used a COVID-19 relief program as a means to obtain money for himself. As stated in the

agreed Statement of Facts, he provided information about his business to another person,

knowing that a third-party would prepare and file a fraudulent Paycheck Protection Program

(“PPP”) loan application. ECF No. 8. He prepared an altered bank statement in support of the

application. Id. The application falsely represented the number of employees and the average

monthly payroll of the business. Id. In addition, a fraudulent quarterly tax return, with false

quarterly wages and federal withholding figures, was also submitted in support of the

application. Id.

       Based on the fraudulent application, Celtic Bank approved and funded a PPP loan for

$350,000. The defendant did not use the loan proceeds for purposes connected to the business,

such as payroll, lease, and utilities. Instead, he used a part of the proceeds for his own personal

benefit, including travel to Las Vegas, large cash withdrawals and making payments to certain

individuals as directed by the person who filed the fraudulent loan application on his behalf.

ECF No. 8.




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Case 2:20-cr-00110-RGD-LRL Document 30 Filed 05/13/21 Page 4 of 5 PageID# 171




       The need for a sentence “to afford adequate deterrence to criminal conduct” is one of the

statutory sentencing factors in 18 U.S.C. § 3553(a)(2), and that factor is especially applicable to

this case, so as to deter others who might take advantage of a program intended to provide

pandemic relief to small businesses.

                               C. The Government’s Recommendation

       The offense committed by the defendant is undoubtedly serious. He diverted a

significant amount of money from a program meant to enable qualified and eligible small

businesses to stay afloat during the pandemic. Essentially, the defendant stole $350,000 from

the Paycheck Protection Program. He did, however, agree to waive indictment, plead guilty and

has accepted responsibility. In addition, he has provided the Government with additional details

about his offense.

       After considering the statutory sentencing factors and for the reasons discussed above,

the Government recommends that the Court impose a prison sentence of 33 months, at the low

end of the advisory guideline range, which will provide “a sentence sufficient but not greater

than necessary” to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2).


                                              Raj Parekh
                                              Acting United States Attorney


                                              By:             /s/
                                                Alan M. Salsbury
                                                Assistant United States Attorney
                                                101 West Main Street, Suite 8000
                                                Norfolk, Virginia 23510
                                                Telephone Number - 757-441- 6331
                                                Facsimile Number - 757-441-6689
                                                E-mail Address - alan.salsbury@usdoj.gov




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Case 2:20-cr-00110-RGD-LRL Document 30 Filed 05/13/21 Page 5 of 5 PageID# 172




                                 CERTIFICATE OF SERVICE

       I hereby certify that on the 13th day of May 2021, I electronically filed the foregoing with

the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF)

to counsel of record who are users of the CM/ECF system.


                                                         /s/
                                             Alan M. Salsbury
                                             Assistant United States Attorney




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