Letter to Judge Azrack, Sentencing Memorandum — United States v. Romean Brown (E.D.N.Y., Dkt. 241)

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A sentencing memorandum, in the form of a letter from defense counsel Gary L. Cutler to the Hon. Joan M. Azrack, in United States of America v. Romean Brown, Document 241 in No. 1:22-cr-00087-JMA-CLP, United States District Court, Eastern District of New York, filed November 21, 2023. It states that sentencing is scheduled for December 12, 2023 and that Mr. Brown pleaded guilty to Count One of the Indictment on June 1, 2023. It states that the Government estimates the total loss caused by all eleven defendants at $522,746 and that losses from claims submitted by Mr. Brown amount to $15,006. It requests a sentence of time served with no additional supervised release, citing letters of support and presentence confinement conditions at MDC Brooklyn.

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“Letter to Judge Azrack, Sentencing Memorandum — United States v. Romean Brown (E.D.N.Y., Dkt. 241).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-22-cr-00087-dkt-241-e-d-n-y-3b2076cc9b/, SHA-256 e126ce00c3618db197048c9805c9fd7175d24b381e9c48c234407835d0f36958.

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Case 1:22-cr-00087-JMA-CLP Document 241 Filed 11/21/23 Page 1 of 7 PageID #: 891

Gary L. Cutler, P.C.
Attorney-At-Law
160 Broadway, 10th Floor, East Building
New York, NY 10038
Tel.: (212) 227-4358
Cell: (917) 628-9062
Email: garycutlerlaw@gmail.com

November 21, 2023

Via ECF and Email

Hon. Joan M. Azrack
United States District Court
Eastern District of New York
Long Island Courthouse, Courtroom 920
100 Federal Plaza
Central Islip, NY 11722

Re: United States of America v. Romean Brown, 1:22-cr-00087(JMA)

Dear Judge Azrack:

I represent Defendant Romean Brown in the above-captioned case. Sentencing is
scheduled in this case for December 12, 2023 at 3 pm. Please consider this letter as Mr. Brown’s
Sentencing Memorandum.

On June 1, 2023, Mr. Brown pleaded guilty to Count One of the Indictment charging him
and the other defendants with devising a scheme and artifice to defraud the New York State
Department of Labor (“Department of Labor”) and to obtain money and property from the New
York State Department of Labor by means of one or more false pretenses, representations and
promises and for the purpose of executing such scheme used the mail and wire communications.
(Presentence Investigation Report (“PSI,” ¶ 1).

While the Government estimates that the total loss caused by all eleven defendants is
$522,746, the losses caused by claims submitted by Mr. Brown amount to only $15,006. (PSI,
¶17). The crime allegedly occurred from March 2020 to October 2021. In this time period
Defendant was age 21 to age 22. (PSI, ¶ 1; p. 2, top). Mr. Brown has no prior convictions,
arrests or known criminal conduct. (PSI, ¶¶ 46-50). Together, these factors and others to be
discussed, indicate that a time served sentence is appropriate for Mr. Brown. We respectfully
request a sentence of time served with no additional supervised release, which is allowed by 18
U.S.C. § 3583(1). PSI, ¶ 89.
Case 1:22-cr-00087-JMA-CLP Document 241 Filed 11/21/23 Page 2 of 7 PageID #: 892

Sentencing Guideline Calculation

While the sentencing guidelines are 33 to 41 months, the Probation Department
recommends a below guideline sentence of 26 months. (U.S. Probation Department Sentence
Recommendation, page one, paragraph one; page three, third paragraph). The sentencing
guidelines calculation of 22 with a criminal history score of I results in a guideline range of 41
months to 51 months (PSI, ¶¶ 88). Mr. Brown accepted responsibility and pleaded early enough
to warrant this three point reduction, which is embodied in the Total Offense Level of 22. (See
PSI, ¶¶ 43, 44).

All of the defendants stipulated with the Government to an additional two point reduction
based on a global plea reduction or global disposition. (PSI, ¶ 102). According to the PSI, this
global plea reduction would require a downward departure pursuant to Policy Statement 5K2.0.
(PSI, ¶ 102). Such a departure would bring the Total Offense Level for Mr. Brown to 20, and
provide the resulting guideline range of 33 months to 41 months. We respectfully request that
Your Honor accept the two point global plea reduction, as this informed Mr. Brown’s plea.

The Sentencing Statute, 18 U.S.C. § 3553(a)

The Sentencing Guidelines are but one factor the Court is to consider in imposing
sentence. 18 U.S.C. § 3553(a) is the primary sentencing provision post-Booker. The statue
prescribes imposing “a sentence sufficient but not greater than necessary, to comply with the
purposes set forth . . . (in the sentencing statute).” The statute presents numerous points for the
Court to evaluate in passing sentence.

The History and Characteristics of Defendant
The Nature and Circumstances of the Offense

Letters of Support

Letters of Support provide perceptive insight from those who know a defendant. The
Letters of Support are summarized below and are attached to this letter.

Rosalie Stewart

Ms. Stewart is Romean’s aunt. She characterizes Romean as “a very smart, loving and a
very charismatic young man (who) has his entire future ahead of him.” She believes that
“Romean should be given a second chance to do things the right way.” She states that “Romean
has learned his lesson . . . he wants to make something of himself.” Ms. Stewart concludes, “ it
would be a great opportunity to see him be the man that he was born to be.” Defendant’s Exhibit
A (“Def Ex. A”), attached to this letter.

Connor Campbell

Connor Campbell is Romean’s younger cousin. Mr. Campbell states that Romean “has
been a true example for me as a young man. He is the big brother I have always wanted.” He

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describes Romean as “respectful, reliable, and trustworthy.” He respectfully asks the Court,
“Please consider allowing Romean to show us that he has learned from his mistake and is willing
to make the necessary changes to function in our society as an adult.” Def. Ex. B.

Gabriele Addison Stewart

Ms. Stewart is 10 years old and Romean’s cousin. She states that Romean has been kind
and loving towards her. Romean picked Ms. Stewart up from summer camp and and helped her
with her projects and homework. Ms. Stewart says that Romean always helped her to do her
best. Def. Ex. C.

Tyler Cowell

Tyler Cowell is Romean’s cousin. Mr. Cowell describes Romean as “kind, caring, fun,
loving, respectful, helpful, trustworthy and well-mannered.” He also states that “Romean is not a
bad person, he made a bad choice.” Mr. Cowell respectfully requests that the Court give
Romean leniency. Def. Ex. D.

Brinelle Hemmings

Ms. Hemmings states that Romean “was always a selfless and caring person oftentimes
putting others before himself.” She states that Romean gave back to those in need whether it was
food or clothing. Ms. Hemmings says that Romean is not a bad person and she believes that he
deserves a second chance to get his life on track. Ms. Hemmings points out that Romean has
used his time in jail to gain knowledge through the books he reads actively. She says that
Romean has become a Muslim in jail and he prays and fasts daily. Def. Ex. E.

Lashay Turner

Ms. Turner states that she has known Romean for five years. She says that “Romean is a
great kid at heart, very family oriented and is a good person.” From her conversations with
Romean, Ms. Turner says that “while incarcerated he is making momentous changes for a better
and safer future, we talked about furthering his education and obtaining a job.” Ms. Turner asks
for leniency for Romean. Def. Ex. F.

Nickesha Barnett-Morgan

According to Nickesha Barnett-Morgan, Romean is Ms. Barnett-Morgan’s best friend’s
nephew. She has known Romean for over 15 years. Ms. Barnett-Morgan states that “Romean
has always been a jovial young man.” Ms. Barnett-Morgan states further that “(h)e was always
loving, respectful, well mannered and helpful.” Ms. Barnett-Morgan respectfully asks the Court
to give Romean “leniency and an opportunity to set his life back on the right track.” Def. Ex. G.

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Offender Characteristics From the Presentence Investigation Report

Defendant was born in Jamaica. (PSI, ¶ 53). He came to the U.S. with his mother when
he was one year old. (PSI, ¶ 59). Defendant was naturalized after he entered the U.S. (See PSI,
¶ 59). Romean does not know who his father was. (PSI, ¶ 53). No one stepped into a father
figure role for Romean and he was raised by his mother alone. (PSI, ¶ 54). His mother worked
often and defendant now realizes, she was working to support them. (PSI, ¶ 53). Romean was
good at basketball and played in high school, but his mother could not come to any of his games.
(PSI, ¶ 54).

In an interview with Probation, defendant’ mother Marsheene Johnson described Romaen
as a “loving, friendly and positive” person. (PSI, ¶ 57). Ms. Johnson worked two jobs, which
did not provide enough income for their needs. (PSI, ¶ 58).

Defendant attended high school in Brooklyn except for one or two years when he lived
with his godmother and attended high school in Lakeland, Florida. (PSI, ¶ 59). Romean
ultimately graduated from Boys and Girls High School in Brooklyn as was personally reported to
me by the Probation Officer. After high school, Defendant moved on his own to Los Angeles
with the intention of applying for college to play basketball. (PSI, ¶ 59). In 2020, Romean
attended ASA College in Brooklyn but did not finish due to the COVID-19 pandemic. (PSI, ¶
75). When he was on bond, Defendant again attended ASA College but was remanded after a
half semester.
(PSI, ¶ 75).

Defendant has attended two courses at MDC Brooklyn: “Your Money Values and
Influences, “ and “Sentry Class (Art).” Copies of the certificates for these classes are attached to
the letter. Def. Exs. H and I.

While at MDC Brooklyn, Defendant was cited for “phone abuse,” which Romean
described as staying on the phone for too long. (PSI, ¶ 60). Defendant stated to me that another
charge of “refusing to obey an order” and “being insolent to a staff member” were the same
incident as the “phone abuse,” infraction. A third infraction for “possession of drugs/alcohol”
resulted from his cell mate possessing marijuana. As Romean pointed out, he does not take
drugs, including marijuana. (See PSI, ¶ 72 “defendant did not report a history of drug use”).

When the Defendant was in high school, he reported suffering from anxiey attacks and
depression. While in Florida, he attended mental health treatment, but stopped after a few
sessions. (PSI, ¶ 70). After he was shot, Defendant experienced paranoia and post-traumatic
stress disorder, as he constantly felt scared that someone was going to hurt him. (PSI, ¶ 67).
Defendant reported that his mental health has been negatively impacted by his current
incarceration. (PSI, ¶ 68). Defendant was interviewed by medical staff about depression and
anxiety. (PSI, ¶ 69). He reported that he experienced an increase in anxiety, nightmares and
crying. A second interview occurred in March 2022 and the defendant’s mood seemed to have
improved. (PSI, ¶ 69). Defendant was diagnosed with generalized anxiety disorder and
depression, while out on bond. Romean attended weekly mental health counseling sessions.
(PSI, ¶ 70). After his bond was revoked, Defendant was placed on suicide watch. (PSI, ¶ 70).

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Presentence Confinement Conditions At MDC Brooklyn
Provide A Basis for A Downward Departure

Romean has been confined at MDC Brooklyn on a continuing basis since his bail was
revoked on October 20, 2022. (PSI, page one, bottom). Throughout his confinement at MDC
Brooklyn, conditions at MDC were harsh. There were numerous all-day lockdowns at MDC.
See Romean Brown’s Certification (“RB Cert.”), attached to this letter as Def. Ex. J, ¶¶ 2 – 4.
During these lockdowns, Romean and the other inmates were confined to their cells for the day,
even though units Romean had been on have common areas. Romean could also not make
telephone calls to family, have family visits, or meet with his attorney. RB Cert., Def. Ex. J, ¶ 3.
Additionally, Romean has been confined at MDC, and in Los Angeles, when he was arrested on
the current charges, during a time of COVID. This heightened Romean’s apprehension at being
incarcerated.

In addition to the lockdowns, another harsh condition was the food at MDC. Frequently,
inmates were served peanut butter and bread or peanut butter and jelly on bread for dinner. No
real milk was served, rather, powdered milk was served. RB. Cert., Def. Ex. J, ¶ 5.

The medical attention Romean has received has also been substandard. When he lived in
Los Angeles, on November 23, 2021, Romean was shot in the hip by a stray bullet. (PSI, ¶ 62;
RB Cert. Def., Ex. J, ¶ 6). Romean was diagnosed with a broken left femur and broken hip.
(PSI, ¶ 62; RB Cert. ¶ 6). In Los Angeles, prior to being arrested, Romean underwent two
surgeries and a blood transfusion. (PSI, ¶ 62; RB Cert., Def. Ex. J, ¶ 6). When Romean was out
on bond, he had scheduled stem cell surgery. (PSI, ¶ 62; RB Cert., Def. Ex. J, ¶ 6). The surgery
was not completed because he was remanded. (PSI, ¶ 62). Generally, MDC’s treatment was to
give Romean Tylenol or Ibuprofen. (See PSI, ¶ 62; RB Cert., Def. Ex. J, ¶ 6). He was never
brought to see a doctor for his condition. (See PSI, ¶ 62; RB Cert., Def. Ex. J, ¶ 6). Romean
suffers from leg cramps, limping and pain. (See PSI, ¶ 62; RB Cert., Def. Ex. J, ¶ 6). He ranks
his pain as 7 out of 10, with 10 being the most painful. (RB Cert., Def. Ex. J, ¶ 6). Romean has
requested medical assistance from MDC, but has not been provided help. (See PSI, ¶ 62; RB
Cert., Def. Ex. J, ¶ 6). He was never brought to see a doctor. (RB Cert., Def. Ex. J, ¶ 6).
Romean’s mother confirmed the gunshot wound to Probation and the pain Romean experiences.
(PSI, ¶ 62).

“Pre-sentence confinement conditions may in appropriate cases be a permissible basis for
downward departures.” U.S. v. Phillibert, 557 F.Supp.3d 456, 460 (S.D.N.Y. 2021)(quoting U.S.
v. Carty, 264 F.3d 191, 196-197 (2d Cir. 2001); see also U.S. v. Sanpedro, 352 F.App’x 482, 486
(2d Cir. 2009) (SUMMARY ORDER)(noting that in passing sentence, the district court
considered the harsh conditions defendant had experienced in a Colombian jail before being
extradited); U.S. v. Torres, No. 01 Cr. 1078, 2005 WL 2087818, *2 (S.D.N.Y. Aug. 30,
2005)(“departing downward by 1 level, because of the harsh conditions of defendant’s pretrial
detention”).

A district court “may reduce” the terms of a defendant’s imprisonment “if it finds that . . .
extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A).
The determination as to what constitutes extraordinary and compelling reasons warranting a

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reduction is committed to the sound discretion of the district court. U.S. v. Brooker, 976 F.3d
228, 236-237 (2d Cir. 2020). In Brooker, the Second Circuit held that “the First Step Act freed
district courts to consider the full slate of extraordinary and compelling reasons that an
imprisoned person might bring before them in motions for compassionate release.” Brooker, 976
F.3d at 237. “The only statutory limit on what a court may consider to be extraordinary and
compelling is that ‘rehabilitation . . . alone shall not be considered an extraordinary and
compelling reason.’ 28 U.S.C. § 994(t) (emphasis supplied).” Brooker, 976 F.3d at 237-238. In
Brooker, the Second Circuit noted that defendant did not rely solely on his rehabilitation.
Rather, he relied on other factors as well, which “may also interact with the current coronavirus
pandemic.” Brooker, 976 F.3d at 238 (citing U.S. v. Zukerman, 451 F.Supp.3d, 329, 336
(S.D.N.Y 2020)(granting compassionate release because of the risk of Covid-19); U.S. v. Colvin,
451 F.Supp.3d 237, 241-242 (D. Conn. 2020)(same); U.S. v. Rodriguez, 451 F.Supp.3d 392,
406-407 (E.D. Pa. 2020)(same). The Second Circuit remanded “to allow the district court to
consider the possible relevance of these and any other factors, and to exercise the discretion that
the First Step Act gives to it.” Brooker, 976 F.3d at 238 (see also U.S. v. Torres, 464 F.Supp.3d
651, 659, 662-665 (S.D.N.Y 2020)(granting compassionate release based in part on
rehabilitation, exemplary community service and the high risk due to the COVID-19 pandemic).

“Prior to reducing a defendant’s term of imprisonment, however, a district court must
consider ‘the factors set forth in section 3553(a) to the extent that they are applicable.’” U.S. v.
Roney, 833 Fed. Appx. 850, *852 (2d Cir. 2020)(SUMMARY ORDER)(quoting 18 U.S.C.
3582(c)(1)(A)).

“The Covid-19 pandemic presents an extraordinary and unprecedented threat to
incarcerated individuals.” U.S. v. Kissi, 469 F.Supp.3d 21, *32 (E.D.N.Y. 2020)(quoting U.S. v.
Williams-Bethea, No. 18-CR-78, 2020 WL 2848098 (S.D.N.Y. Jun. 2, 2020). The Kissi court
cited “near-constant lockdown, without access to educational and rehabilitative programs” along
with the inability to receive social visits as some of the characteristics of incarceration at MDC
Brooklyn that amounted to extraordinary and compelling circumstances warranting
compassionate release. Kissi, 469 F.Supp.3d at *39-*40. Judge Engelmayer has stated:

In the Court’s judgment, a day spent in prison under extreme lockdown and in well-
founded fear of contracting a once-in-a-century deadly virus exacts a price on a prisoner
beyond that imposed by an ordinary day in prison. While such conditions are not
intended as punishment, incarceration in such circumstances is, unavoidably, experienced
as more punishing.

U.S. v. Mcrae, 17-Cr-643 (PAE), 2021 WL 142277, *5 (S.D.N.Y. Jan. 15, 2021). One court
refused to remand a defendant to custody prior to sentencing citing conditions at MDC Brooklyn.
U.S. v. Boyd, 21-cr-486 (SHS), 2022 WL 790771, *2 (S.D.N.Y. Feb. 3, 2022)(citing
overcrowding at MDC Brooklyn after the closure of the Metropolitan Correctional Center and
the inability, at the time, of attorneys to carry on in-person visits to prepare with clients).

For all the reasons just described, the lengthy lockdowns, the bad food, the failure to
provided adequate medical care, and incarceration during the COVID-19 era, a downward
departure to time served is warranted.

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Mr. Brown was arrested on this Indictment in Los Angeles. He spent 43 days in jail there
waiting to be sent to the Eastern District of New York to face these charges. At the time of
sentencing on December 12, 2023, Romean will have spent a total of 15 months and five days in
jail based on these charges adding together his time in MDC and his time in jail in Los Angeles.
That is a sufficient, but not greater than necessary, term of incarceration for Romean. He is a
first time offender, his contribution to the losses was minimal, $15,006, and this is a non-violent
crime. Justice would be served through a time-served sentence.

Family Situation May Be a Basis for a Departure/Variance

In addition to the above bases for a downward departure, Probation pointed out that a set
of circumstances surrounding Romean’s upbringing may warrant a departure/variance. Romean
grew up without a father figure and his mother was absent often for work. Probation concludes
that the lack of a role model may have led to Romean’s poor behavior in school and increased his
vulnerability to surround himself with negative peer associations. (PSI, ¶ 104).

Conclusion

For all of the above reasons, we respectfully request a sentence of time-served.

Respectfully submitted,

Gary L. Cutler, P.C.

By: __/s/ Gary L. Cutler__
Gary L. Cutler

cc: USPO Meghan Wing (via email)
ASUA Michael Gilbaldi (via email and CM/ECF)

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