Plea Agreement — United States v. Daniel Olivar (D. Mass., Dkt. 39, August 25, 2023)

Summary

A plea agreement letter in United States v. Daniel Olivar, Criminal No. 22-10330, Document 39 in Case 1:22-cr-10330-IT, filed 08/25/23. The letter is dated July 7, 2023, from the Acting United States Attorney for the District of Massachusetts to defense counsel Carmine P. Lepore, and is made under Federal Rule of Criminal Procedure 11(c)(1)(B). Under it the defendant will plead guilty to wire fraud under 18 U.S.C. § 1343, and the parties agree that the total offense level is 11. The U.S. Attorney agrees to recommend incarceration at the high end of the Guidelines sentencing range, 24 months of supervised release and restitution of $50,844. The defendant agrees to waive appellate rights and any Hyde Amendment claim.

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Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 1 of 8

U.S. Department of Justice

Joshua §. Levy
Acting United States Attorney
District of Massachusetts

Main Reception: (617) 748-3100 John Joseph Moakley United States Courthouse
1 Courthouse Way
Suite 9200
Boston, Massachusetts 02210

July 7, 2023

Carmine P. Lepore, Esq.
One Sprague Street
Revere, MA 02151

Re: United States v. Daniel Olivar
Criminal No. 22-10330

Dear Mr. Lepore:

The United States Attorney for the District of Massachusetts (the “U.S. Attorney”) and
your client, Daniel Olivar (“Defendant”), agree as follows, pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(B):

1. Change of Plea

Defendant will plead guilty to the Indictment, Crim. No. 22-10330: wire fraud, in
violation of 18 U.S.C. § 1343. Defendant admits that Defendant committed the crimes specified
in the Indictment and is in fact guilty of each one.

2. Penalties
Defendant faces the following maximum penalties: incarceration for twenty years;
supervised release for three years; a fine of $250,000; a mandatory special assessment of $400;

restitution; and forfeiture to the extent charged in the Indictment.

3. Sentencing Guidelines

The parties agree, based on the following calculations, that Defendant’s total “offense
level” under the Guidelines is 11:

a) Defendant’s base offense level is seven, because Defendant was convicted of
an offense that has a statutory maximum term of imprisonment of twenty

1
Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 2 of 8

years or more (USSG §2B1.1(a)(1));

b) Defendant’s offense level is increased by six, because the loss is more than
$40,000 but less than $95,000 (USSG §2B1.1(b)(1)((D);' and

c) Defendant’s offense level is decreased by two, because Defendant has
accepted responsibility for Defendant’s crimes (USSG § 3E1.1).

' The loss amount is based on actual, and not intended, loss.

2
Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 3 of 8

Defendant understands that the Court is not required to follow this calculation or even to
sentence Defendant within the Guidelines and that Defendant may not withdraw Defendant’s
guilty plea if Defendant disagrees with how the Court calculates the Guidelines or with the
sentence the Court imposes.

Defendant also understands that the government will object to any reduction in
Defendant’s sentence based on acceptance of responsibility if: (a) at sentencing, Defendant
(directly or through counsel) indicates that Defendant does not fully accept responsibility for
having engaged in the conduct underlying each of the elements of the crimes to which Defendant
is pleading guilty; or (b) by the time of sentencing, Defendant has committed a new federal or
state offense, or has in any way obstructed justice.

If, after signing this Agreement, Defendant’s criminal history score or Criminal History
Category is reduced, the U.S. Attorney reserves the right to seek an upward departure under the
Guidelines.

Nothing in this Plea Agreement affects the U.S. Attorney’s obligation to provide the
Court and the U.S. Probation Office with accurate and complete information regarding this case.

4. Sentence Recommendation
The U.S. Attorney agrees to recommend the following sentence to the Court:

a) incarceration at the high end of the Guidelines sentencing range as calculated
by the government;

b) a fine within the Guidelines sentencing range as calculated by the Court at
sentencing, unless the Court finds that Defendant is not able, and is not likely
to become able, to pay a fine;

c) 24 months of supervised release;

d) a mandatory special assessment of $300, which Defendant must pay to the
Clerk of the Court by the date of sentencing;

e) restitution of $50,844.
Defendant agrees that all criminal monetary penalties, including special assessment,
restitution, forfeiture, and/or fine imposed shall be due and payable immediately, and further
agrees that any Court-ordered repayment schedule does not preclude further enforcement or

collection by the United States.

5. Waiver of Appellate Rights and Challenges to Conviction or Sentence
Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 4 of 8

Defendant has the right to challenge Defendant’s conviction and sentence on “direct
appeal.” This means that Defendant has the right to ask a higher court (the “appeals court”) to
look at what happened in this case and, if the appeals court finds that the trial court or the parties
made certain mistakes, overturn Defendant’s conviction or sentence. Also, in some instances,
Defendant has the right to file a separate civil lawsuit claiming that serious mistakes were made
in this case and that Defendant’s conviction or sentence should be overturned.

Defendant understands that Defendant has these rights, but now agrees to give them up.
Specifically, Defendant agrees that:

a) Defendant will not challenge Defendant’s conviction on direct appeal or in
any other proceeding, including in a separate civil lawsuit; and

b) Defendant will not challenge Defendant’s sentence, including any court orders
related to forfeiture, restitution, fines or supervised release, on direct appeal or
in any other proceeding, including in a separate civil lawsuit.

Defendant understands that, by agreeing to the above, Defendant is agreeing that
Defendant’s conviction and sentence will be final when the Court issues a written judgment after

the sentencing hearing in this case. That is, after the Court issues a written judgment, Defendant
will lose the right to appeal or otherwise challenge Defendant’s conviction and sentence.

Defendant is agreeing to give up these rights at least partly in exchange for concessions
the U.S. Attorney is making in this Agreement.

The parties agree that, despite giving up these rights, Defendant keeps the right to later
claim that Defendant’s lawyer rendered ineffective assistance of counsel, or that the prosecutor
or a member of law enforcement involved in the case engaged in misconduct serious enough to
entitle Defendant to have Defendant’s conviction or sentence overturned.

6. Waiver of Hyde Amendment Claim

Defendant is aware that the Court can award attorneys’ fees and other litigation expenses
to defendants in certain criminal cases. In exchange for the concessions the U.S. Attorney is
making in this Agreement, Defendant waives any claim under the so-called “Hyde
Amendment,” 18 U.S.C. §3006A, that is based in whole or in part on the U.S. Attorney’s
agreement in Paragraph 1 to dismiss Count One.

7. Civil Liability
This Plea Agreement does not affect any civil liability, including any tax liability,
Defendant has incurred or may later incur due to Defendant’s criminal conduct and guilty plea to

the charges specified in Paragraph 1 of this Agreement.

8. Breach of Plea Agreement
Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 5 of 8

Defendant understands that if Defendant breaches any provision of this Agreement,
violates any condition of Defendant’s pre-trial release or commits any crime following
Defendant’s execution of this Plea Agreement, Defendant cannot rely upon such conduct to
withdraw Defendant’s guilty plea. Defendant’s conduct, however, would give the U.S. Attorney
the right to be released from the U.S. Attorney’s commitments under this Agreement, to pursue
any charges that were, or are to be, dismissed under this Agreement, and to use against
Defendant any of Defendant’s statements, and any information or materials Defendant provided
to the government during investigation or prosecution of Defendant’s case—even if the parties
had entered any earlier written or oral agreements or understandings about this issue.

Defendant also understands that if Defendant breaches any provision of this Agreement
or engages in any of the aforementioned conduct, Defendant thereby waives any defenses based
on the statute of limitations, constitutional protections against pre-indictment delay, and the
Speedy Trial Act, that Defendant otherwise may have had to any charges based on conduct
occurring before the date of this Agreement.

9. Who is Bound by Plea Agreement

This Agreement is only between Defendant and the U.S. Attorney for the District of
Massachusetts. It does not bind the Attorney General of the United States or any other federal,
state, or local prosecuting authorities.

10. Modifications to Plea Agreement

This Agreement can be modified or supplemented only in a written memorandum signed
by both parties, or through proceedings in open court.

* * *

If this letter accurately reflects the agreement between the U.S. Attorney and Defendant,
please have Defendant sign the Acknowledgment of Plea Agreement below. Please also sign
below as Witness. Return the original of this letter to Assistant U.S. Attorney Laura J. Kaplan.

Sincerely,

JOSHUA S. LEVY
Acting United States Attorney
Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 6 of 8

By: Timothy E. Moran

Timothy E. Moran
Chief, Organized Crime and Gang Unit

Laura J. Kaplan

Laura J. Kaplan
Assistant U.S. Attorney

ACKNOWLEDGMENT OF PLEA AGREEMENT

I have read this letter and discussed it with my attorney. The letter accurately presents
my agreement with the United States Attorney’s Office for the District of Massachusetts. There
are no unwritten agreements between me and the United States Attorney’s Office, and no United
States government official has made any unwritten promises or representations to me in
connection with my guilty plea. I have received no prior offers to resolve this case.
Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 7 of 8

I understand the crimes I am pleading guilty to, and the maximum penalties for those
crimes. I have discussed the Sentencing Guidelines with my lawyer, and I understand the
sentencing ranges that may apply.

I am satisfied with the legal representation my lawyer has given me, and we have had
enough time to meet and discuss my case. We have discussed the charges against me, possible
defenses I might have, the terms of this Agreement and whether I should go to trial.

Se I am in fact guilty

Daniel Olivar
Defendant

mm |

I certify that Daniel Olivar has read this Agreement and that we have discussed what it
means. I believe Daniel Olivar understands the Agreement and is entering into it freely,
voluntarily, and knowingly. I also certify that the U.S. Attorney has not extended any other
offers regarding a change of plea in this case.

Carkuihe P. Lepore

Attorney for Defendant
Case 1:22-cr-10330-IT Document 39 Filed 08/25/23 Page 8 of 8

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

/s/ Laura Kaplan
Laura Kaplan
Assistant United States Attorney

August 25, 2023


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