Memorandum & Order — United States v. Fleur Williams (Eastern District of New York, Document 32)

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A Memorandum & Order in United States v. Fleur Williams, 23-cr-00252-JMA-1, Document 32, filed September 3, 2024, in the United States District Court for the Eastern District of New York. The pro se defendant moved for a two-point reduction in his sentence based on the "zero-point offender" amendment to the Sentencing Guidelines, and the Government opposed. The order states that between April and September 2020 the defendant engaged in a scheme to obtain approximately $281,532 in PPP and EIDL loans, and that a sentence of 18 months' imprisonment was imposed on January 17, 2024. It reasons that the defendant had more than zero criminal history points and that the 18-month term is below the low end of the amended range. The Court DENIES the motion.

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    Case 2:23-cr-00252-JMA Document 32 Filed 09/03/24 Page 1 of 7 PageID #: 234


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK                                                   (For Online Publication Only)
----------------------------------------------------------------------X
UNITED STATES OF AMERICA,


                                                                              MEMORANDUM & ORDER
                                                                              23-cr-00252-JMA-1
                         -against-                                                                    FILED
                                                                                                      CLERK
FLEUR WILLIAMS,                                                                        10:11 am, Sep 03, 2024
                                                                                           U.S. DISTRICT COURT
                                                      Defendant.                      EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X                    LONG ISLAND OFFICE
AZRACK, United States District Judge:

         Defendant Fleur Williams moves, pro se under 18 U.S.C. § 3582(c)(2) and U.S.S.G. §

1B1.10, for a two-point reduction in his sentence based on the “zero-point offender” amendment

to the U.S. Sentencing Guidelines (“Guidelines”). 1 (ECF No. 29.) The Government opposed the

motion. (ECF No. 31.) Mr. Williams never replied. For the below reasons, the motion is denied.

                                              I.       BACKGROUND

         Between April and September 2020, Mr. Williams engaged in a scheme to fraudulently

obtain more than $281,000 in PPP and EIDL loans from the United States Small Business

Administration (“SBA”). (ECF No. 18, at ¶ 1 (“PSR”).) On August 2, 2023, Mr. Williams pleaded

guilty before United States Magistrate Judge Lee G. Dunst to a single-count indictment pursuant

to a plea agreement. (Id.) The indictment charged Mr. Williams with conspiracy to commit wire

fraud in violation of 18 U.S.C. § 1349 and 18 U.S.C. § 1343. (Id.)



1
          Because Mr. Williams is proceeding pro se, the Court construes his motion in the light most favorable to him.
See Rahmankulov v. United States, 2023 WL 3303949, at *1 (S.D.N.Y. May 8, 2023) (holding courts must “construe
pro se pleadings liberally and interpret them ‘to raise the strongest arguments they suggest’”) (quoting Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)) (emphasis in original) (internal quotation marks and
citations omitted). Read literally, however, Mr. Williams’s form motion seeks an amended sentence that would
increase his term of imprisonment from 18 to 21 months. (ECF No. 29 (acknowledging his current 18-month prison
term but requesting a resentence at the “low end (21 months)” of the amended United States Sentencing Guidelines
range).)
 Case 2:23-cr-00252-JMA Document 32 Filed 09/03/24 Page 2 of 7 PageID #: 235


       On March 29, 2020, the Coronavirus Aid, Relief, and Economic Security Act (“CARES

Act”) was enacted to attempt to provide emergency financial assistance to businesses that were

shuttered in the name of public safety. (Id. ¶¶ 4–5.) Under the CARES Act, funds were allocated

for the issuance of forgivable loans to small businesses for job retention and payroll related

expenses via the PPP. (Id. ¶ 5.) The PPP allowed qualifying small businesses to receive unsecured

loans to address business expenses such as payroll, rent, mortgage related payments, and utilities.

(Id.) If the PPP funds were used for their intended purposes and in accordance with the program’s

terms, the loans would be forgiven. (Id.) The PPP program was overseen by SBA, and various

financial institutions received and processed the PPP loan applications—which if approved, would

then be funded by the lenders. (Id.) The amount of the loans was determined by a formula which

required applicants to truthfully report information such as the number of employees and payroll

costs, as well as provide corroborating documentation. (Id. ¶¶ 5, 8.) In addition to the PPP, the

CARES Act also provided funding for the EIDL program—a SBA program designed to provide

up to $2 million in loans to eligible small businesses that experienced financial disruption due to

the COVID-19 pandemic. (Id. ¶ 6.) Like the PPP program, the EIDL program required applicants

to truthfully report information—to the SBA through an online portal—related to a business’s

operations for the preceding twelve-month period. (Id. ¶¶ 6, 8.) Like the PPP program, the EIDL

program funds could only be used for limited, business-related purposes. (Id.)

       Operating from Oceanside, New York (among other places)—and against the backdrop of

an unprecedented public health crisis—Mr. Williams elected to enter a conspiracy to steal

approximately $281,532 by submitting fraudulent online PPP and EIDL applications for two

entities that he operated, each of which engaged in the “flipping” of residential homes. (Id. ¶¶ 7–

8, 56.) Collectively, Mr. Williams’s three fraudulent submissions to the SBA and two financial

institutions that administered the PPP and EIDL programs misrepresented: (1) the identity of the

                                                2
    Case 2:23-cr-00252-JMA Document 32 Filed 09/03/24 Page 3 of 7 PageID #: 236


loan applicant, (2) the number of employees, (3) the revenue and payrolls of Mr. Williams’s

entities, and (4) the intended use of the loan proceeds. (Id. ¶ 8.) Between April and September

2020, based upon these lies, the SBA and the financial institutions issued around $281,532 to Mr.

Williams’s two entities. (Id. ¶ 9.) Mr. Williams used these illicitly obtained proceeds to enrich

himself and to make extravagant purchases, including the purchase of an approximately $19,000

luxury watch in Garden City, New York. (Id.)

        Relevant here, Mr. Williams’s PSR determined that he had one criminal history point—

which established a Criminal History Category of I and a Guidelines range of 27–33 months’

imprisonment. 2 (Id. ¶¶ 28–29, 67.) On January 17, 2024, this Court sentenced Mr. Williams to a

term of 18 months’ imprisonment and two years’ supervised release. (ECF No. 22.) Notably, the

18-month term of imprisonment was 9 months below the low-end of the then-applicable

Guidelines range, see PSR ¶ 70, and 19 months below the waiver in Mr. Williams’s plea

agreement—which forbade him from “fil[ing] an appeal or otherwise challeng[ing], by petition

under 28 U.S.C. §2255 or any other provision, the conviction or sentence in the event that the

Court imposes a term of imprisonment of 37 months or below.” (Ex. A, at ¶ 4, ECF No. 31-1.)

                                            II.      DISCUSSION

        Under 18 U.S.C. § 3582(c)(2), “a federal court may reduce a defendant’s sentence if the

defendant was originally sentenced to a term of imprisonment based on a sentencing range that

has subsequently been lowered by the Sentencing Commission when that modification is made



2
         Specifically, the PSR determined that Mr. Williams’s Criminal History score was one as a result of a May 4,
2011, sentence of one day custody and one year probation that was imposed upon him in a Georgia State Court, based
upon his conviction for Driving Under the Influence of Alcohol (“DUI”). (See U.S.S.G. § 4A1.1(c); see also PSR at
¶ 28.) The relevant United States Sentencing Guideline, §4A1.2(e)(2), provides that “any prior sentence that was
imposed within ten years of the defendant’s commencement of the instant offense is counted” to determine the
defendant’s Criminal History Category. See U.S.S.G. § 4A1.2(e)(2). On August 2, 2023, during his guilty plea, Mr.
Williams expressly allocuted that he commenced his PPP and EIDL wire fraud conspiracy within approximately eight
years and ten months of his DUI conviction, stating “between approximately April 1[], 2020, and September 30,
2020… I agreed … to engage in a scheme to defraud the Small Business Administration and financial institutions….”
(Ex. B, at 25:7–19, ECF No. 31-2.)
                                                         3
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retroactive.” United States v. Torres, 2024 WL 621554, at *1 (S.D.N.Y. Feb. 14, 2024) (Chin, J.)

(citing United States v. Martin, 974 F.3d 124, 136, 139 (2d Cir. 2020)). To do so, the court must

first “determine the amended guideline range that would have been applicable to the defendant if

[the amendment] had been in effect at the time the defendant was sentenced.” United States v.

Zapatero, 961 F.3d 123, 127 (2d Cir. 2020) (quoting U.S.S.G. § 1B1.1Q(b)(1)). If the defendant

is eligible for a sentence reduction, “‘a court may reduce the term of imprisonment after

considering the factors set forth in section 3553(a) and if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission,’ which are contained in

U.S.S.G. § 1B1.10.” Torres, 2024 WL 621554, at *1 (quoting Martin, 974 F.3d at 136).

         Section 1B1.10(a)(2)(B) provides, however, that “[a] reduction in the defendant’s term of

imprisonment ... is not authorized under 18 U.S.C. § 3582(c)(2) if ... [the amendment] does not

have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. §

1B1.10(a)(2)(B). And § 1B1.10(b)(2)(A) provides that, with an exception not relevant here, “the

court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) ... to a

term that is less than the minimum of the amended guideline range.” 3 Id. § 1B1.10(b)(2)(A).

“Thus, if a defendant was originally sentenced to a term of imprisonment that falls below the low

end of the amended Guidelines range, that defendant is ineligible for a reduction under Section

3582(c)(2).” United States v. Ross, 2024 WL 149130, at *1 (S.D.N.Y. Jan. 12, 2024).

         Amendment 821 to the Sentencing Guidelines went into effect on November 1, 2023, and

applies retroactively. See U.S.S.G. § 1B1.10(d). Part A of the Amendment addresses “status



3
         “The sole exception provided by the Sentencing Guidelines is for defendants who were sentenced to less than
the guideline range ‘pursuant to a government motion to reflect the defendant’s substantial assistance to authorities,’
in which case ‘a reduction comparably less than the amended guideline range ... may be appropriate.’” United States
v. Wallace, No. 22-cr-153, ECF No. 62, at 3 (E.D.N.Y. Apr. 30, 2024) (citing U.S.S.G. § 1B1.10(b)(2)(B)) (denying
motion for a sentence reduction where the defendant’s sentence was already at the low end of the amended guidelines).
This exception is inapplicable because the Government did not file such a substantial assistance motion in this case.
(ECF No. 31, at 2 n.2.) Nor did Mr. Williams qualify for a “safety valve” reduction. (See PSR, at ¶ 28.)
                                                          4
    Case 2:23-cr-00252-JMA Document 32 Filed 09/03/24 Page 5 of 7 PageID #: 238


points,” which refer to two additional points added to an offender’s sentence if the offender

committed the instant federal offense while still serving a sentence in another case. United States

v. Tejeda, 2024 WL 1676329, at *2 n.1 (S.D.N.Y. Apr. 18, 2024). The Amendment decreases status

points by one point for offenders with seven or more criminal history points and eliminates them

altogether for offenders with six or less criminal history points. 4 See U.S.S.G. § 4A1.1(e). Part B

of the Amendment provides a decrease of two offense levels for “Zero-Point Offenders” (offenders

who have no criminal history points) and whose offense did not involve specific aggravating

factors. 5 Id. § 4C1.1.

         Turning to the instant motion, because Mr. Williams had more than zero criminal history

points, Part B of the Amendment does not apply. Part A of the Amendment does not apply either.

No “status points” were assigned to Mr. Williams at sentencing; indeed, the Court sentenced Mr.

Williams based on the lowest possible criminal history category—Category I. Therefore, Mr.

Williams is ineligible for a modification of sentence. 6


4
         Because no “status points” were assigned to Mr. Williams at sentencing, Part A does not apply. See U.S.
Sent’g Comm’n, Amendments to the Sentencing Guidelines, 88 Fed. Reg. 28,254, 28,272 (effective Nov. 1, 2023)
(defining “status points” as “the additional criminal history points given to offenders for the fact of having committed
the instant offense while under a criminal justice sentence” (emphasis added)); see also PSR ¶ 28.

5
          Under § 4C1.1, a defendant with zero criminal history points is eligible for a two-level reduction to his
offense level if: (i) he did not receive an adjustment under § 3A1.4 (Terrorism); (ii) he did not use violence or credible
threats of violence in connection with the offense; (iii) the offense did not result in death or serious bodily injury; (iv)
the offense is not a sex offense; (v) he did not personally cause substantial financial hardship; (vi) he did not possess,
receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon; (vii) the
offense is not covered by § 2H1.1 (Offenses Involving Individual Rights; (viii) he did not receive an adjustment under
§ 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and (ix) he did
not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise,
as defined in 21 U.S.C. § 848. See U.S.S.G. § 4C1.1(a)(2)–(10).

6
          Another reason for Mr. Williams’s ineligibility bears separate remark. Section 1B1.10(b)(2)(A) provides
that, with an exception not relevant here, “the court shall not reduce the defendant’s term of imprisonment under 18
U.S.C. § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range.” Id. § 1B1.10(b)(2)(A).
Here, Mr. Williams was sentenced to a term of imprisonment (18 months) that is less than the low-end of the amended
Guidelines range that would apply if he qualified as a zero-point offender (21–27 months). (ECF No. 31, at 3
(explaining amended guidelines calculation).) Thus, Mr. Williams would be ineligible for a sentence reduction even
if the Court assumed the “zero-point offender” provision resulted in a reduction to Mr. Williams’s Guidelines
calculation. See Ross, 2024 WL 149130, at *1 (“Thus, if a defendant was originally sentenced to a term of

                                                             5
 Case 2:23-cr-00252-JMA Document 32 Filed 09/03/24 Page 6 of 7 PageID #: 239


         Because Mr. Williams is ineligible for a sentence reduction, this Court need not analyze

the factors set forth in 18 U.S.C. § 3553(a). See United States v. Garcia, 2024 WL 532447, at *2

(S.D.N.Y. Feb. 9, 2024); see also Ross, 2024 WL 149130, at *2 (declining to analyze Section

3353(a) factors where criminal history calculation alone established that defendant was ineligible

for a sentence reduction). But even if the Court assumed that the “zero-point offender” provision

resulted in a reduction to Mr. Williams’s Guidelines calculation, which it does not, a sentence

reduction in this case would be “[in]consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Upon re-reviewing the record of this case and

carefully “consider[ing] anew all of the § 3553(a) factors that it originally considered at

sentencing,” United States v. Vela, 2024 WL 1621109, at *1 (S.D.N.Y. Apr. 15, 2024), the 18-

month sentence that the Court imposed on Mr. Williams “continues to be the least restrictive

sentence necessary to satisfy the statutory purposes of sentencing.” Id.; see also 18 U.S.C. §

3553(a).

                                            III.     CONCLUSION

         For the above reasons, under Fed. R. Crim. P. 37(a), the Court DENIES Mr. Williams’s

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10. The Clerk

of Court is respectfully directed to close ECF No. 29. The Court further certifies under 28 U.S.C.

§ 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith,

and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v.

United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is also respectfully directed to

mail a copy of this Order to Mr. Williams at his address of record.




imprisonment that falls below the low end of the amended Guidelines range, that defendant is ineligible for a reduction
under Section 3582(c)(2).”); -
                             see also -
                               - ---  Dillon
                                        - - - v.
                                              - -United
                                                  - - - -States,
                                                          - - - 560 U.S. 817, 827 (2010). For this reason, the Court
need not address the Government’s alternate argument that Mr. Williams’s collateral attack waiver in his plea
agreement also bars his present sentence reduction claim. (ECF No. 31, at 6.)
                                                          6
Case 2:23-cr-00252-JMA Document 32 Filed 09/03/24 Page 7 of 7 PageID #: 240


SO ORDERED.
Dated: September 3, 2024
       Central Islip, New York
                                              /s/ JMA
                                         JOAN M. AZRACK
                                         UNITED STATES DISTRICT JUDGE




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