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Home Source documents Court filing — No. 1:21-cr-20160 (Dkt. 30, S.D. Fla.)

Court filing — No. 1:21-cr-20160 (Dkt. 30, S.D. Fla.)

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Case 1:21-cr-20160-KMW Document 30 Entered on FLSD Docket 10/21/2021 Page 1 of 4




                             UNITED STATES DISTRICT COURT
                             SOUTHERN DISTRICT OF FLORIDA

                                  CASE NO. 21-20160-CR-KMW


  UNITED STATES OF AMERICA


  vs.


  LEONEL RIVERO,

           Defendant.
  _______________________________/

        GOVERNMENT’S CORRECTIONS AND OBJECTION TO PRESENTENCE
                        INVESTIGATION REPORT

         The United States, by and through the undersigned counsel, files the following corrections

  and objection to Defendant Leonel Rivero’s (“Defendant[’s]”) Presentence Investigation Report

  (“PSI”). Since the filing of the PSI, the United States has obtained additional information that

  impacts the forfeiture money judgment amount, the restitution amount, and the offense conduct

  provided in the PSI. In addition, the United States respectfully submits that a two-level increase

  to the offense level pursuant to Section § 2B1.1(b)(12) of the Guidelines is not applicable because

  the offense did not involve conduct described in 18 U.S.C. § 1040.

                                           DISCUSSION

         First, the government submits that the correct forfeiture money judgment amount is

  $903,665.56 and not $975,582.00 as the government initially represented. (PSI ¶¶ 4).            To

  determine the forfeiture money judgment amount, the government relied on a spreadsheet with

  data obtained from Square Capital, LLC (“Square”), which summarized information regarding the

  Paycheck Protection Program (“PPP”) loans the Defendant submitted to Square, including the total

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Case 1:21-cr-20160-KMW Document 30 Entered on FLSD Docket 10/21/2021 Page 2 of 4




  amount paid. That spreadsheet reflected that the total paid amount for the 47 funded loans was

  $975,582.00. However, upon further review, it appears that this spreadsheet inadvertently listed

  four of the funded loans twice, resulting in the double counting of some of the loan amounts.

  Thus, the correct total is $903,665.56. As such, the government respectfully submits that the

  forfeiture money judgment amount in Paragraph 4 of the PSI and the disbursement total in

  Paragraphs 21 and 35 of the PSI should be changed to reflect the correct total of $903,665.56 as is

  consistent with the Amended Preliminary Order of Forfeiture, ECF No. 28.

          Second, the government respectfully submits that the total restitution amount is

  $1,085,901.56. This amount includes $903,655.56 for the 47 PPP loans obtained from Square;

  $32,336.00 for the one PPP loan obtained from Wells Fargo Bank (“Wells Fargo”); and $149,900

  got the Economic Injury Disaster Loan (“EIDL”) obtained from the Small Business Administration

  (“SBA”). 1 Whether restitution is owed to the lender or to the SBA depends on whether the loan at

  issue was forgiven by the SBA. Based on information provided by Square and the SBA, the

  government understands that of the $903,655.56 in funded PPP loans from Square, $765,059.15

  was forgiven. As such, Square is owed approximately $118,291.71 in restitution and the SBA is

  owed $765,059.15 in restitution for the Square loans at issue. In addition, the SBA is owed

  $149,900 in restitution for the EIDL, which makes the total amount of restitution owed to the SBA

  $914,959.15. Finally, the $32,336 in PPP loan funds from Wells Fargo was not forgiven. As

  such, $32,336 in restitution is owed to Wells Fargo.

          Third, since the filing of the PSI, the government has learned that the Defendant filed

  applications seeking loan forgiveness for loans that he knew were fraudulent. The government


  1 The PSI states that the amount of the EIDL was $150,000.      (PSI ¶ 31). Upon review of the Defendant’s bank
  records from Wells Fargo, the government submits that the total amount funded was $149,900.

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Case 1:21-cr-20160-KMW Document 30 Entered on FLSD Docket 10/21/2021 Page 3 of 4




  respectfully submits that this new information should be considered by the U.S. Probation Office

  and the Court as relevant conduct. Specifically, according to information obtained from Square,

  Square received applications seeking loan forgiveness for 46 of the 47 funded PPP loans. This

  included an application for loan forgiveness by Defendant, which was submitted to Square on or

  about November 16, 2020—just a few weeks after law enforcement conducted a search warrant of

  Defendant’s residence in connection with this matter. As a result of his application for loan

  forgiveness, Defendant’s own loan from Square in the amount of $15,371.01 was forgiven. In

  addition, according to IP information provided by Square, three other applications seeking loan

  forgiveness were submitted using the same IP address that Defendant used to submit the 118 PPP

  fraudulent loan applications. All three of these loans were forgiven at least in part. Further,

  according to information obtained from Wells Fargo and the SBA, Defendant also submitted an

  application seeking loan forgiveness for the PPP loan he received from Wells Fargo. This loan

  forgiveness application was denied. Again, the application appears to have been submitted after

  the search warrant of Defendant’s residence. The government respectfully submits that this new

  information—that Defendant submitted applications seeking loan forgiveness for loans that he

  knew were fraudulent and submitted those applications after he was visited by law enforcement—

  should be included as relevant conduct in the PSI.

         Finally, the government submits that a two-level increase to the offense level, pursuant to

  Section 2B1.1(b)(12) of the Sentencing Guidelines is not applicable.       Section 2B1.1(b)(12)

  applies if the offense involved conduct described in 18 U.S.C. § 1040, which prohibits fraud in

  connection with major disaster or emergency benefits. However, 18 U.S.C. § 1040 concerns

  fraud involving any benefit provided in connection with a major disaster declaration or an

  emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Act. See 18

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Case 1:21-cr-20160-KMW Document 30 Entered on FLSD Docket 10/21/2021 Page 4 of 4




  U.S.C. § 1040(a)(2). Here, the PPP loan funds and EIDL funds were not provided in connection

  with a major disaster declaration or an emergency declaration pursuant to the Robert T. Stafford

  Disaster Relief and Emergency Assistance Act.        Since the offense did not involve conduct

  described in 18 U.S.C. § 1040, Section 2B1.1(b)(12) of the Guidelines is not applicable.

                                          CONCLUSION

         For the reasons stated above, the United States respectfully requests that the PSI be

  amended to correct the forfeiture money judgment amount to $903,665.56 and to include the

  restitution amount of $1,085,901.56 as well as the new information regarding Defendant’s

  submission of applications for loan forgiveness. The United States further requests removing the

  two-level increase to the offense level pursuant to Section 2B1.1(b)(12) of the Guidelines.


                                       Respectfully submitted,


                                           JOSEPH S. BEEMSTERBOER
                                           Acting Chief
                                           U.S. Department of Justice
                                           Criminal Division, Fraud Section


                                           /s/ Della Sentilles
                                           DELLA SENTILLES
                                           Trial Attorneys
                                           U.S. Department of Justice
                                           Criminal Division, Fraud Section
                                           1400 New York Avenue, NW
                                           Washington, D.C. 20005
                                           Office: (202) 445-8793
                                           Email: Della.Sentilles@usdoj.gov




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