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Case 1:21-cr-00224-DKC Document 100 Filed 09/03/24 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA *
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v. * CRIMINAL NO. DKC-21-224
*
KENNETH DODD *
*
*
*******
SENTENCING MEMORANDOM
The United States of America, by and through its undersigned counsel, hereby submits its
sentencing memorandum in advance of Kenneth Dodd’s (“the Defendant” or “Dodd”) sentencing
currently scheduled for September 13, 2024 at 2 p.m.
In 2004, the Defendant was convicted in the District of Columbia of conspiracy to
distribute and possess with intent to distribute one kilogram or more of PCP and ecstasy, and 50
grams or more of cocaine base, and well as conspiracy to participate in a racketeering organization.
As a result, the Defendant was sentenced to 287 months’ incarceration. While serving that
sentence at a Bureau of Prisons (“BOP”) facility in North Carolina, the Defendant was convicted
of conspiracy to commit bribery and bribery of a public official, which involved the smuggling of
contraband into the federal facility and paying bribes to correctional officers to do so. The
Defendant was sentenced in the Eastern District of North Carolina to 37 months imprisonment, to
be served consecutive to his District of Columbia sentence.
Then, again while serving the District of Columbia and Eastern District of North Carolina
sentences, the Defendant committed the instant offense, which involved conspiring with other
inmates, including Jonathan Henry (“Henry”) and Jason Haddox (“Haddox”), at FCI Fort Dix to
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file false unemployment insurance claims using the personal identifying information (“PII”) of
others. The defendant is currently projected to be released December 16, 2026.
For the reasons that follow, the Government submits that the Defendant should be
sentenced to 51 months’ imprisonment, to be served consecutive to his current terms of
imprisonment. This sentence is sufficient but not greater than necessary to achieve the purposes
of sentencing as set forth in 18 U.S.C. § 3553(a).
The Guidelines
The defendant pled guilty pursuant to a Plea Agreement to conspiracy to commit wire fraud
and mail fraud. The defendant, the Government, and the United States Probation Office
(“USPO”) all agree that the defendant’s base offense level is 7, pursuant to United States Sentence
Guidelines (“U.S.S.G.”) § 2B1.1. All parties also agree that the following enhancements apply:
• A 2-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(i), because the
offense involved 10 or more victims; and
• A 2-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(10)(C), because the
offense involved sophisticated means and the defendant intentionally engaged in or
cause the conduct constituting sophisticated means.
The Defendant and the Government also agree that a 2-level enhancement applies, pursuant
to U.S.S.G. § 2B1.1(b)(11), because the offense involved the unauthorized transfer or use of any
means of identification unlawfully to produce or obtain any other means of identification. 1
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The scheme involved the use of means of identification (i.e., names, social security numbers, dates of birth) to
obtain other means’ of identification (i.e., debit cards with unique electronic identification numbers). Moreover,
this enhancement would apply under the additional subset that the offense involved the possession or use of any
authentication feature. Application Note 10(C)(ii) provides two applicable examples: “(I) A defendant obtains an
individual's name and social security number from a source (e.g., from a piece of mail taken from the individual's
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The Defendant asserts that an 8-level enhancement applies, pursuant to U.S.S.G.
§ 2B1.1(b)(1)(E), because the loss involved in the offense was more than $95,000 but not more
than $150,000. The Government’s position is that a 10-level enhancement applies, pursuant to
U.S.S.G. § 2B1.1(b)(1)(F), because the loss involved in the offense was more than $150,000 but
not more than $250,000. 2
The Defendant, the Government, and the USPO all agree that a 3-level decrease applies
due to the Defendant’s prompt acceptance of responsibility.
The Government agrees with the USPO that the Defendant’s criminal history category is
III. As such, the Government’s position is that the Defendant’s final adjusted offense level is
20/III, and therefore the advisory guidelines range is 41 – 51 months. The Defendant’s position
is that the Defendant’s final adjusted offense level is 18/III, with a final advisory guidelines range
of 33 – 41 months. 3
The Defendant and the Government also agree that, pursuant to U.S.S.G. § 5G1.3(a),
because the instant offense was committed while the Defendant was serving a term of
imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the
undischarged term of imprisonment.
mailbox) and obtains a bank loan in that individual's name. In this example, the account number of the bank loan is
the other means of identification that has been obtained unlawfully”; and “(II) A defendant obtains an individual's
name and address from a source (e.g., from a driver's license in a stolen wallet) and applies for, obtains, and
subsequently uses a credit card in that individual's name. In this example, the credit card is the other means of
identification that has been obtained unlawfully.”
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The USPO asserts that a 16-level enhancement applies, pursuant to U.S.S.G. § 2B1.1(b)(1)(I), because the loss
involved in the offense was more than $1,500,000 but less than $3,500,000.
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The USPO asserts that the Defendant’s final adjusted offense level is 24/III (63 – 78 months).
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Loss Amount
As set forth in the statement of facts attached to the Defendant’s plea agreement, the
Government seized three notebooks during searches of the conspirators’ cells at FCI Fort Dix.
These three notebooks each contained PII which were used by the co-conspirators to file the false
unemployment claims, typically in Maryland. To calculate loss amounts, law enforcement ran
the PII through the Maryland Department of Labor (“MD DOL”) database to determine which of
the PII was used to file actual claims and, of those, what the loss amount attributable to those
claims were. The notebooks were seized from three locations and included the actual loss as
follows:
• “Henry Notebook 1”: This notebook was seized from Henry’s hands on July 11, 2020 and
contained PII of approximately 269 individuals. Of these, approximately 138 claims were
submitted to MD DOL for an actual loss to MD DOL of $1,730,943.
• “Dodd Notebook 1”: This notebook was seized from Dodd’s cell on July 11, 2020 and
contained PII for approximately 89 individuals. Of these, approximately eight claims
were submitted to MD DOL for an actual loss of $112,683.
• “Henry Notebook 2”: This notebook was seized on August 5, 2020 and contained PII for
approximately five individuals. Of these, approximately four claims were submitted to
MD DOL for an actual loss of $39,920.
In total, the PII contained within these notebooks were used to submit approximately 191
attempted unemployment claims, and approximately 152 claims were actually paid out in
Maryland for a total of 184 Maryland benefit debit cards (totally approximately $1.8 million in
actual loss).
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The Defendant asserts that only the actual loss amount attributable to him is the $112,683
related to the eight individual claims to MD DOL associated with the PII found in his notebook
seized on July 11, 2020. While the Government does not assert that all $1.8 million of additional
actual loss was reasonably foreseeable to the Defendant, the Government asserts that at least
$150,000 but not more than $250,000 of actual or intended loss was reasonably foreseeable to
Dodd by a preponderance of the evidence.
A. Legal Standard
Unlike a trial, at sentencing the standard of proof is a preponderance of the evidence.
United States v. Brooks, 957 F.2d 1138, 1148 (4th Cir. 1992). The Fourth Circuit has repeatedly
held, post-Booker, that the standard of proving sentencing guideline factors remains by a
preponderance. See, e.g., United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009); United
States v. White, 405 F.3d 208, 219 (4th Cir. 2005).
Moreover, it is undisputed that at a sentencing hearing, the court may consider a “broad
scope” of information. United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993). Since before
the founding of our Nation, sentencing judges have relied upon a wide array of “‘sources and types
of evidence . . . to assist [them] in determining the kind and extent of punishment to be imposed
within limits fixed by law.’” Witte v. United States, 515 U.S. 389, 397-98 (1995) (quoting
Williams v. New York, 337 U.S. 241, 246 (1949)). As the Supreme Court articulated in Witte, “a
sentencing judge may appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may consider, or the source from which it may
come.” Id. at 398 (internal quotations and citations removed).
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This broad view as to the admissibility of evidence during sentencing is mandated in 18
U.S.C. § 3661, which states, “[n]o limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which a court of the United
States may receive and consider for the purpose of imposing an appropriate sentence.”
Both the U.S. Sentencing Guidelines and the Federal Rules of Evidence reiterate the broad
range of evidence available for a court’s consideration at sentencing, with the Guidelines
permitting all relevant and reliable evidence. U.S.S.G. § 6A1.3(a) (“sentencing judges are not
restricted to information that would be admissible at trial.”); Fed. R. Evid. 1101(d)(3) (exempting
sentencing proceedings from the Federal Rules of Evidence). The Fourth Circuit’s
statement in United States v. Bowman, 926 F.2d 380, 381 (4th Cir. 1991), aptly summarizes this
principle: “[t]he type of information to be considered by a sentencing judge is unlimited.” Thus, a
sentencing judge may consider any relevant and reliable evidence in determining a defendant’s
sentence.
To determine the appropriate loss enhancement under the Sentencing Guidelines, the Court
may consider both the loss caused by the offense of conviction as well as the relevant conduct of
the defendant and his co-conspirators that resulted in that loss. U.S.S.G. § 1B1.3. Specifically,
in the case of a jointly undertaken criminal activity, as here, the loss is determined based on the
defendant’s own conduct and “all acts and omissions of others that were—(i) within the scope of
the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii)
reasonably foreseeable in connection with that criminal activity . . .” U.S.S.G. § 1B1.3(a)(1)(A),
(B). 4
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Application Note 4(C)(ii) provides the following example: “Defendants F and G, working together, design and
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The district court “need only make a reasonable estimate of the loss,” U.S.S.G. § 2B1.1,
cmt. n. 3(C), based on a preponderance of the evidence. United States v. Savage, 885 F.3d 212,
226-28 (4th Cir. 2018) (approving sentence based on reasonable estimate of “intended loss”);
McLean, 715 F.3d at 144 (citing United States v. Mehta, 594 F.3d 277, 282 (4th Cir.2010)).
“‘[T]he loss need not be determined with precision. The court need only make a reasonable
estimate of the loss, given the available information.’” United States v. Halstead, 261 Fed. Appx.
472, 475 (4th Cir. 2008) (citing United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003) (citing
U.S.S.G. § 2F1.1, cmt. n. 9)).
The Sentencing Guidelines and, most recently, the Fourth Circuit, have made clear that
“loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1, cmt. n. 3(A). “Intended
loss” refers to the pecuniary harm that the defendant purposely sought to inflict. U.S.S.G.
§ 2B1.1, cmt. n. 3(A)(ii); United States v. Maggie Anne Boler, No. 23-4352 (4th Cir, May 9, 2024).
B. Argument
Although the notebook seized from Dodd’s cell resulted in only $112,000 of actual loss, at
least $150,000 but not more than $250,000 of loss was within the scope of the conspiracy, in
furtherance of the criminal activity, and reasonably foreseeable to the Defendant.
First, Dodd’s notebook contained the PII of approximately 89 individuals. See generally
Exhibit (“Ex”) 1 (Dodd Notebook 1). Of these, only eight individuals’ PII was submitted to the
execute a scheme to sell fraudulent stocks by telephone. Defendant F fraudulently obtains $20,000. Defendant G
fraudulently obtains $35,000. Each is convicted of mail fraud. Defendants F and G each are accountable for the
entire amount ($55,000). Each defendant is accountable for the amount he personally obtained under subsection
(a)(1)(A). Each defendant is accountable for the amount obtained by his accomplice under subsection (a)(1)(B)
because the conduct of each was within the scope of the jointly undertaken criminal activity (the scheme to sell
fraudulent stocks), was in furtherance of that criminal activity, and was reasonably foreseeable in connection with
that criminal activity.”
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MD DOL, which resulted in loss of approximately $112,000. That leaves over 80 individuals’
PII which either had not yet been submitted to MD DOL, were submitted to states other than
Maryland, and/or who were unsuccessfully submitted. While the amount of unemployment
insurance that would have been granted is difficult to calculate, it is clear that intended loss
“includes intended pecuniary harm that would have been impossible or unlikely to occur,”
U.S.S.G. § 2B1.1, app. Note 3(A)(ii), such as not being able to continue to submit unemployment
claims using the PII in the notebook because the notebook was seized from the Defendant.
Indeed, the Defendant’s notations within his notebook suggest that the Defendant
submitted or caused to be submitted claims in addition to the eight claims submitted to MD DOL.
For example, on page 2 of the notebook, the PII of Victim J.C. is written down with the notation
“Total Balance: 10,240.” Ex. 1, at 2. Victim J.C. is not one of the victims according to MD DOL,
suggesting that this victim’s claim was submitted to another state. The same is true for Victims
A.V.A and M.T. on page 7: there is a check mark and notation “9,700,” for both, neither of which
are included in the MD DOL loss figure.
Moreover, on page 6 of the notebook, there are three victims under the notation
“Processing,” which suggests that those fraudulent unemployment claims were in process. Those
three victims are not included in the actual loss amount of approximately $112,000. Id. at 6.
Second, the Defendant readily agrees that he conspired with Henry and Haddox to submit
unemployment claims. Again, while the Government does not assert that all $1.8 million in actual
loss—the vast majority of which is derived from the PII in Henry’s notebooks—was reasonably
foreseeable to the Defendant, it defies logic that the only loss reasonably foreseeable to the
Defendant is the actual loss from his notebook that encompasses only a snapshot in time. Indeed,
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while the notebook was seized on July 11, 2020 (the same day Henry Notebook 1 was seized), the
Defendant admitted that he conspired with Henry and Haddox from March 22, 2020 through at
least July 2021—over a year after the Defendant’s notebook was seized.
As such, the Government submits based on a preponderance of the evidence that the loss
involved in the offense attributable to the Defendant is at least $150,000 but not more than
$250,000.
The Government’s Recommended Sentence
At sentencing, the Government anticipates that, based on the Government’s calculation of
the Guidelines (20/CHC III), the advisory Guidelines range will be 41 – 51 months imprisonment.
The government further anticipates that it will recommend a sentence of 51 months
imprisonment—regardless of the Guidelines calculations—pursuant to the factors set forth in 18
U.S.C. §3553(a). The Government further submits that this sentence should be ordered to be
imposed consecutive to the Defendant’s current sentence.
The nature and circumstances of the Defendant’s offense are appalling. Not only did the
Defendant loot the United States and the State of Maryland of thousands of dollars’ worth of
unemployment insurance benefits during the height of the COVID-19 pandemic, he did so while
incarcerated at a federal facility using contraband phones. And, perhaps most alarmingly, the
current offense is the second offense that the Defendant has committed while incarcerated.
Moreover, in addition to other criminal conduct for which he has been convicted, while
incarcerated, the Defendant has sustained a number of infractions, including failing to follow
safety regulations, interfering with staff, engaging in sexual acts, introduction of drugs/alcohol,
and possessing unauthorized items, among others. See Ex. 2 (BOP infraction report).
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In sum: the egregiousness of the Defendant’s conduct while incarcerated—including two
criminal convictions—makes clear that a significant sentence must be imposed to reflect the
seriousness of the offense, promote respect for the law, provide just punishment, deter the
defendant, and protect the public from future crimes.
Restitution and Forfeiture
As agreed to by the Defendant pursuant to his Plea Agreement, the Government will seek
restitution in the amount of at least $112,688, to be made payable to the MD DOL at the address
provided in Paragraph 93 of the PSR.
Conclusion
The Government respectfully contends that a sentence of 51 months is sufficient but not
greater than necessary to achieve the purposes of sentencing pursuant to 18 U.S.C. § 3553(a).
Respectfully submitted,
Erek L. Barron
United States Attorney
By: _____/s/___________________
Kelly O. Hayes
Assistant United States Attorney
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