Position Regarding the Presentence Investigation Report — U.S. v. Westmoreland, 2:22-CR-20134-MSN (W.D. Tenn.)

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Defendant's Position Regarding the Presentence Investigation Report in United States of America v. Courtney Westmoreland, Case No. 2:22-CR-20134-MSN, Document 39, filed 03/10/23, in the U.S. District Court for the Western District of Tennessee, submitted through counsel Angela D. Smith. It objects to the six-level enhancement for intended loss, arguing that U.S.S.G. § 2B1.1 speaks only of "loss" and that a four-level enhancement is more appropriate with an actual loss amount of $27,550. It lists a calculation of Total Offense Level 11 and Criminal History Category I, and discusses the 18 U.S.C. § 3553(a) factors, including the defendant's background, work history and acceptance of responsibility. Attached exhibits include a University of Phoenix transcript and a letter from an employer.

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“Position Regarding the Presentence Investigation Report — U.S. v. Westmoreland, 2:22-CR-20134-MSN (W.D. Tenn.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-22-cr-20134-dkt-39-w-d-tenn-fde8fafdc6/, SHA-256 e4385a2bbdd639935805488ccaa66455f335534dd8f3446c2fa9ceb92ef06fe7.

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Case 2:22-cr-20134-MSN Document 39 Filed 03/10/23 Page 1 of 19 PageID 141

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

UNITED STATES OF AMERICA, *

Plaintiff, *

v. * Case No.: 2:22-CR-20134-MSN

COURTNEY WESTMORELAND, *

Defendant. *
______________________________________________________________________________

DEFENDANT’S POSITION REGARDING THE
PRESENTENCE INVESTIGATION REPORT
______________________________________________________________________________

Courtney Westmoreland, through counsel of record, Angela D. Smith, hereby submits her

position paper regarding the Presentence Investigation Report. In support, Ms. Westmoreland

would submit the following:

Position with Respect to the Presentence Investigation Report

On January 11, 2023, Probation prepared its draft Presentence Investigation Report

(“PSR”). Defense counsel and Ms. Westmoreland have reviewed the PSR together. Ms.

Westmoreland has the following objections to the PSR.

I. Ms. Westmoreland Objects to the Six-Level Enhancement for the intended loss
amount.

The PSR attributes a six-level enhancement to Ms. Westmoreland’s guideline calculations

based on an intended loss amount of $48,550. (See PSR ¶ 41). U.S.S.G. § 2B1.1 speaks only of

“loss.” The plain meaning of this word does not include intended loss. It is only in the Guidelines’

commentary that intended loss is addressed. The Sentencing Commission is not permitted to add

to a guideline through the commentary. Ms. Westmoreland therefore objects to the six-level
Case 2:22-cr-20134-MSN Document 39 Filed 03/10/23 Page 2 of 19 PageID 142

enhancement applied in this case, and submits that a four-level enhancement is more appropriate

consistent with the actual loss amount of $27,550.

On June 30, 2020, Ms. Westmoreland received $11,500 from the Small Business

Administration from a loan submitted to the Economic Injury Disaster Loan Program (“EIDL”).

(See PSR ¶ 23). On February 28, 2021, Ms. Westmoreland submitted a second application to the

Small Business Administration which was denied. (See id. ¶¶ 25 & 26). Additionally, Ms.

Westmoreland received approximately $16,050 through the Unemployment Benefit Insurance

Program. (See id. ¶ 34). The PSR states that “the total loss amount in this case is $48,550 which

includes $27,550 in actual loss and $21,000 in intended loss. (See PSR ¶ 35). Ms. Westmoreland

submits that her total loss amount, pursuant to U.S.S.G. § 2B1.1(b)(1)(C), is $27,550.

The word “loss,” is not defined within the Guideline itself, but it is defined in the

commentary. It is the commentary that defines loss as “the greater of the actual loss or intended

loss.” USSG §2B1.1, cmt. n. 3(A). Thus, the commentary differs from the Guideline. United

States v. Havis, 927 F.3d 382, 385-386 (6th Cir. 2019).

The commentary is like an agency’s interpretation of its regulations. Stinson v. United

States, 508 U.S. 36, 40–41 (1993). Courts should not, however, “reflexively defer to an agency’s

interpretation. Before doing so, a court must find that the regulation is ‘genuinely ambiguous,

even after [the] court has resorted to all the standard tools of interpretation to eliminate that

ambiguity.” United States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021) (quoting Kisor v. Wilkie,

139 S. Ct. 2400, 2414 (2019)). And the Sixth Circuit has held that Kisor’s guidance about when

to defer to agency interpretations applies to the commentary. Id. Kisor and Riccardi compel the

conclusion that the loss amount here is $27,550 (actual loss), not $48,500 (intended loss).

Indeed, like the Sixth Circuit, the Third Circuit has noted the discrepancy between the

2
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Guideline and the commentary, stating, “Only th[e] comment[ary], not the Guidelines’ text, says

that defendants can be sentenced based on the losses they intended.” United States v. Kirschner,

995 F.3d 327, 333 (3d Cir. 2021). The commentary is only relevant if the text of the guideline is

ambiguous. Riccardi, 989 F.3d at 485. But the term “loss” is not ambiguous.

Another district court in the Sixth Circuit recently observed that “[b]ecause “loss” in

§ 2B1.1 is not genuinely ambiguous, deference to the commentary is not appropriate.” United

States v. McKinney, No. 22-cr-20249, 2022 WL 17547467, at * 8 (E.D. Mich. Dec. 9, 2022). In

reaching its decision the court found no Sixth Circuit case had addressed whether “loss” defined

under §2B1.1 is ambiguous; however, the court did rely on cases originating in the Eleventh and

Third Circuits.

For instance, in United States v. Alford, No. 3:21-cr052/MCR, 2022 WL 3577373 (N.D.

Fla. Aug. 20, 2022), the court held that “loss” is not genuinely ambiguous. See id. at

*3. Alford considered the definitions of “loss” referenced in Riccardi as well as those that appear

in “contemporary dictionaries,” and it concluded that “loss” is unambiguous in the sense that there

“is at least one element shared by all of the ‘ordinary, contemporary, common meaning[s]’ for the

word ‘loss’ in all of its various contexts—concrete materialization of harm. Id. There is no

reasonable construction of the ‘plain and ordinary meaning’ of loss that includes harm that did not

actually materialize.” Id. (alteration in original) (internal citation omitted). The court further

found that “‘[l]oss’ cannot mean harm that never materialized” and that “the only ambiguity is that

created by the Sentencing Commission itself by inserting ‘intended loss’ into the definition of

‘loss.’” Id. at *3 & n.6. The court forcefully observed that it “‘ha[d] no business deferring to any

other reading’ of the term, no matter how much the Government insists that doing so ‘would make

3
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more sense.’” Id. at *3 (quoting Kisor, 139 S. Ct. at 2415). The court thus declined to give Auer 1

deference to the commentary “defining ‘loss’ to include ‘intended loss. Hence, as found in

Mckinney, “deference to the commentary’s definition of “loss” as including “intended loss” is not

appropriate.” McKinney, 2022 WL 17547467, at *9. Indeed, the McKinney court went on to rule

that [i]nserting the word “intended” before the word “loss” changes the meaning of “loss” in a way

that departs from its plain meaning. Because “intended” does not appear before “loss” in the

guideline, the court chose to adhere to the plain meaning of the word “loss,” which it found

involved only materialized harm. McKinney, 2022 WL 17547467, at *8.

In United States v. Banks, 55 F.4th 246, 253 (3d Cir. 2022), the Third Circuit found that

“the term ‘loss’ is unambiguous in the context of § 2B1.1.” The court’s analysis began with “the

plain text of § 2B1.1.” 55 F.4th at 256. The court noted that “[t]he Guideline does not mention

‘actual’ versus ‘intended’ loss; that distinction appears only in the commentary. That absence

alone indicates that the Guideline does not include intended loss.” Id. at 257. Moreover, the court

observed that “dictionary definitions of ‘loss,’” and as also noted Riccardi, “confirm[s]” that “[t]he

ordinary meaning of ‘loss’ in the context of § 2B1.1 is ‘actual loss.’” Id. at 257-59 & n.54. The

court found that “[n]one of these definitions suggest an ordinary understanding that ‘loss’ means

‘intended loss.’” Id. at 258. It concluded that “in the context of a sentence enhancement for basic

economic offenses, the ordinary meaning of the word ‘loss’ is the loss the victim actually

suffered.” Id. The court therefore “accord[ed] the commentary no weight.” Id.

Based on this reasoning, Ms. Westmoreland submits that the actual loss in this case was

$27,550, the materialized harm in this offense. Ms. Westmoreland avers that the Guidelines’

1
Auer v. Robbins, 519 U.S. 452 (1997) (holding that a court should defer to an agency’s
interpretation of its own ambiguous regulation, so long as that interpretation is reasonable, even if
the court believes another reasonable reading of the regulation is the better reading).
4
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calculations and resulting advisory Guidelines range would be follows if calculated properly under

U.S.S.G. § 2B1.1:

Base Offense Level: 7

Specific Offense Characteristic pursuant to +4

USSG §2B1.1(b)(1)(C):

Specific Offense Characteristic pursuant to +2

USSG §2B1.1(b)(12):

Acceptance of Responsibility Credit: -2

Total Offense Level: 11

Criminal History Category: I

Starting guidelines range: 8-14months

A. 18 U.S.C. § 3553(a) Factors.

(1) Nature and Circumstances of Offense and the History and Characteristics of
the Defendant.

(a) Nature and Circumstances of the Offense.

Ms. Westmoreland has accepted responsibility for her actions, has entered a plea of guilty

in this matter, and she is now deemed a convicted felon. Ms. Westmoreland understands that it is

her own actions that put her in jeopardy. She also fully understands that the funds she received

were meant to help those persons who were severely impacted by the COVID-19 pandemic. She

knows that receiving these funds was illegal and the funds could have been provided to someone

5
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in need. To that end, Ms. Westmoreland has started making payments toward repaying the loan

in this matter. 2

(b) History and Characteristics of Ms. Westmoreland

Courtney Westmoreland was born on June 20, 1984 in Memphis, Tennessee to Sheila

Mallard and Michael Westmoreland (deceased). Ms. Westmoreland lived with her mom in the

East Memphis area as a child. Her father was not involved in her upbringing, but she was able to

meet her father before he passed away. Ms. Westmoreland is the oldest child of the family. She

had an older brother named Cortez Mallard, but he was murdered in 2012. 3

Ms. Westmoreland has three children. She has two adult daughters and one teenage son.

Ms. Westmoreland had her first child at age 15. Ms. Westmoreland had her second child in 2002

at age 18. Despite the fact Ms. Westmoreland was a young, single mom, she remained in high

school and graduated from Wooddale High School in 2003.

After graduating high school, Ms. Westmoreland began working to provide for her

children. She eventually went on to attend the University of Phoenix for four years and pursued a

degree in Criminal Justice. 4 Unfortunately, Ms. Westmoreland did not finish her degree. Ms.

Westmoreland says that she stopped attending the University of Phoenix so she could get a second

job to provide for her children. However, she continues to advocate for her children to pursue

their education, and she supports all her children financially. Both of her daughters are currently

enrolled in college, and her son is a sophomore in high school.

Ms. Westmoreland has a substantial work history. In fact, Ms. Westmoreland has

maintained steady employment since age 16. She currently has two jobs. She works as a cashier

2
Exhibit #1, U.S. Small Business Administration Payment Activity.
3
Exhibit #2, Affidavit of Complaint.
4
Exhibit #3, University of Phoenix Transcript.
6
Case 2:22-cr-20134-MSN Document 39 Filed 03/10/23 Page 7 of 19 PageID 147

at Kroger from 7:00 a.m. to 1:30 p.m. Monday through Friday, and she also works at Olympus

Surgical Technologies from 3:00 p.m. to 11:30 p.m. Monday through Friday.

Attached is a letter from Ms. Westmoreland’s employer at Kroger. 5 Ms. Kendra Harris,

former store leader at Kroger, wrote “[s]ince working with Courtney, she has always been a team

player and very helpful to all customers that she encounters daily.” Ms. Harris went on further to

say that, “[h]er (Ms. Westmoreland) work ethic speaks volumes to the contributions she provides

to the company.”

(i) Mental Health/Emotional Health/Substance Abuse:

Ms. Westmoreland has never received any sort of mental health treatment or counseling.

(See PSR¶ 72). In fact, there is no indication that it is necessary. Ms. Westmoreland denied the

use of any controlled substances. Id. at ¶ 73. Furthermore, Ms. Westmoreland has no prior arrests

or convictions for any drug related offenses.

(i) reflect the seriousness of the offense, promote respect for the
law, and provide just punishment for the offense

Ms. Westmoreland submits that she understands the seriousness of the offense, and she

does respect the law. She has expressed great remorse over her actions and understands the

consequences of them, explaining that because of her actions, she has become a “convicted felon

and lost so many rights.” (See PSR ¶ 38). She realizes what she has lost by making the decision

to apply for those loans fraudulently. The requested sentence would reflect the seriousness of the

offense, promote respect for the law, and provide just punishment for the offense.

5
Exhibit #4, Letter from Ms. Kendra Harris.
7
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(ii) afford adequate deterrence to criminal conduct

Ms. Westmoreland submits that the requested sentence will show other similarly situated

offenders that receiving fraudulent government funds can have a detrimental impact on one’s life

for a small monetary gain.

(iii) protect the public from further crimes of Ms. Westmoreland
Ms. Westmoreland’s arrest history does not include any prior felony convictions or any

convictions for firearm offenses or drug offenses. Ms. Westmoreland’s criminal history only

includes offenses for driving while license suspended. Ms. Westmoreland currently has a valid

driver’s license, and she has not been charged or convicted of a driving offense or any offense

since November 2014.

It appears that this offense was the result of a temporary and aberrant lack of judgement.

Ms. Westmoreland is currently employed at two different places of employment, and she is a full-

time mom and a stable member of her community. Additionally, since being on release for this

offense, Ms. Westmoreland has not had any violations of her pretrial release. It is unlikely that

she will commit any new offense, and there is no present danger to the public.

(iv) provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner

Ms. Westmoreland graduated from Wooddale High School in May 2003, and she attended

some college. (See PSR ¶¶ 74 & 75). Additionally, Ms. Westmoreland has a significant work

history. The BOP will most likely be unable to afford her any further educational or vocational

training.

(v) The Need to Avoid Unwarranted Disparities

8
Case 2:22-cr-20134-MSN Document 39 Filed 03/10/23 Page 9 of 19 PageID 149

Five current or former IRS employees were charged in this district with crimes relating to

the Paycheck Protection Program (PPP) and EIDL Program, both federal stimulus programs

authorized as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Two of

those defendants have already been sentenced to noncustodial sentences.

In United States v. Tina Humes, Case No. 22-20175-SHL, Ms. Humes was employed as

a Lead Management and Program Assistant in the Human Capital Office with the Internal Revenue

Service. Ms. Humes fraudulently obtained $123,612 in COVID-19 relief funds. On October 28,

2022, Ms. Humes was sentenced to time served followed by a three-year period of supervised

release with the added condition that the first six months were to be served on home detention.

In United States v. Roderick White, Case No. 22-20198-SHL, Mr. White was also an

employee with the Internal Revenue Service as Contact Representative in the Wage and

Investment Service Centers Department. Mr. White fraudulently obtained $66,666. On December

12, 2022, Mr. White was sentenced to time served followed by a two-year period of supervised

release with the added condition that the first six months were to be served on home detention.

Ms. Westmoreland obtained $27,050 in pandemic funds, thousands of dollars less than

those who have already been sentenced in this district. A sentence to time served followed by a

two-year term of supervised release would avoid unnecessary sentencing disparities.

CONCLUSION

Defense counsel will address the individual 18 U.S.C. §3553(a) factors at sentencing. Ms.

Westmoreland asks the Court to sentence her to time served followed by a two-year term of

supervised release. Defense counsel anticipates the sentencing hearing will take no longer than

one hour. The defense anticipates that at least one individual will speak on Ms. Westmoreland’s

behalf.

9
Case 2:22-cr-20134-MSN Document 39 Filed 03/10/23 Page 10 of 19 PageID 150

Respectfully Submitted,

DORIS RANDLE-HOLT
FEDERAL DEFENDER

/s/ Angela D. Smith
Assistant Federal Defender
200 Jefferson Ave., Suite 200
Memphis, TN 38103
(901) 544-3895

CERTIFICATE OF SERVICE

I, Angela D. Smith, certify that a true copy of the foregoing was forwarded via the Court’s

electronic filing system to Carroll Andre, Assistant United States Attorney, Clifford Davis and

Odell Horton Federal Office Building, Suite 800, 167 North Main Street, Memphis, Tennessee,

38103.

This, the 10th day of March 2023.

/s/ Angela D. Smith
Assistant Federal Defender

10
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EXHIBIT #1
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EXHIBIT #2
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EXHIBIT #3
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Print Date: 09/05/2022
Unofficial Transcript
Not For Official Use

Record of:
Courtney Q Westmoreland BSCJA/M Program GPA : 2.04
Student Number: AACJ Program GPA : 2.02
9022644971 / ***-**-****
Birthdate:
Enrollment Status:
Withdrawn
Enrollment Status Effective Date:
04/29/2015

UNIVERSITY OF PHOENIX
Mo/Year Course ID Course Title Grade Credits Credits Quality Rep
Attempted Earned Points
04/2010 GEN/195 FOUNDATIONS OF UNIVERSITY B+ 3.00 3.00 9.99
STUDIES
05/2010 FP/120 ESSENTIALS OF PERSONAL C+ 3.00 3.00 6.99
FINANCE
06/2010 SCI/163 Elements of Health and Wellness C- 3.00 3.00 5.01
08/2010 COM/170 ELEMENTS OF UNIVERSITY A- 3.00 3.00 11.01
COMPOSITION AND
COMMUNICATION I
09/2010 HUM/186 Media Influences on American Culture B- 3.00 3.00 8.01
10/2010 COM/172 ELEMENTS OF UNIVERSITY W 0.00 0.00 0.00
COMPOSITION AND
COMMUNICATION II
11/2010 PSY/211 ESSENTIALS OF PSYCHOLOGY D 3.00 3.00 3.00
01/2011 COM/172 ELEMENTS OF UNIVERSITY C- 3.00 3.00 5.01
COMPOSITION AND
COMMUNICATION II
02/2011 HUM/114 CRITICAL THINKING AND C- 3.00 3.00 5.01
CREATIVE PROBLEM SOLVING
04/2011 SOC/100 Introduction to Sociology B 3.00 3.00 9.00
05/2011 REL/133 World Religious Traditions I C+ 3.00 3.00 6.99
06/2011 CJA/214 Introduction to Police Theory and D 3.00 3.00 3.00
Practices
08/2011 SCI/220 Human Nutrition W 0.00 0.00 0.00
09/2011 SCI/256 People, Science and the Environment D+ 3.00 3.00 3.99
10/2011 MTH/208 COLLEGE MATHEMATICS I W 0.00 0.00 0.00
01/2012 SOC/315 Cultural Diversity C- 3.00 3.00 5.01
02/2012 PSY/320 Human Motivation D 3.00 3.00 3.00
03/2012 SOC/110 Teamwork, Collaboration, and Conflict C- 3.00 3.00 5.01
Resolution
05/2012 CJA/204 Introduction to Criminal Justice C+ 3.00 3.00 6.99
06/2012 COMM/470 COMMUNICATING IN THE B 3.00 3.00 9.00
VIRTUAL WORKPLACE
07/2012 CJA/224 Introduction to Criminal Court Systems W 0.00 0.00 0.00

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Print Date: 09/05/2022
Unofficial Transcript
Not For Official Use

Mo/Year Course ID Course Title Grade Credits Credits Quality Rep
Attempted Earned Points
08/2012 CJA/224 Introduction to Criminal Court Systems W 0.00 0.00 0.00
09/2012 COM/350 Organizational Communication D- 3.00 3.00 2.01
10/2012 CJA/224 Introduction to Criminal Court Systems B 3.00 3.00 9.00
11/2012 CJA/234 Introduction to Corrections C 3.00 3.00 6.00
01/2013 CJA/304 Interpersonal Communications D+ 3.00 3.00 3.99
02/2013 CJA/314 Criminology W 0.00 0.00 0.00
03/2013 CJA/324 Ethics in Criminal Justice B- 3.00 3.00 8.01
04/2013 CJA/334 RESEARCH METHODS IN B 3.00 3.00 9.00
CRIMINAL JUSTICE
06/2013 HUM/150 Introduction to Film Studies F 3.00 0.00 0.00 R
07/2013 MTH/208 COLLEGE MATHEMATICS I C- 3.00 3.00 5.01
08/2013 CJA/314 Criminology B- 3.00 3.00 8.01
09/2013 HPE/170 HEALTH AND PHYSICAL C- 3.00 3.00 5.01
EDUCATION
11/2013 SOC/105 INTRODUCTION TO POPULAR B+ 3.00 3.00 9.99
AMERICAN CULTURE
12/2013 HUM/150 Introduction to Film Studies C- 3.00 3.00 5.01
02/2014 MTH/219 Introduction to College Algebra F 3.00 0.00 0.00
07/2014 CJA/354 Criminal Law W 0.00 0.00 0.00
10/2014 MTH/209 COLLEGE MATHEMATICS II W 0.00 0.00 0.00
11/2014 CJA/344 Cultural Diversity Issues in Criminal W 0.00 0.00 0.00
Justice
04/2015 CJA/354 Criminal Law W 0.00 0.00 0.00

GPA
GPA Credits Attempted Credits Earned Quality Points
Total Cumulative Credits: 84.00
UOPX Cumulative: 2.04 90.00 84.00 177.06

End of Unofficial Transcript

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