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Case 2:24-cr-00366-NJC Document 24 Filed 03/11/26 Page 1 of 79 PageID #: 116
United States District Court
Eastern District of New York
UNITED STATES OF AMERICA,
-v-
Case No.: 2:24-CR-00366
CARMINE G. AGNELLO,
Defendant.
SENTENCING MEMORANDUM FOR DEFENDANT
CARMINE AGNELLO
TO BE FILED UNDER SEAL
STEVEN A. METCALF II, ESQ.
Metcalf & Metcalf, P.C.
99 Park Avenue, Suite 810
New York, NY 10016
Office 646.253.0514
Fax 646.219.2012
metcalflawnyc@gmail.com
“[W]e treat departures and variances like two roads, one of which
can always get you to every place that the other may lead,
yet each of which has acquired its own set of directions.”
United States v. Fletcher, 56 F.4th 179, 187 (1st Cir. 2022), cert. denied, No. 22-7130 (U.S. Apr.
24, 2023).
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I. PRELIMINARY STATEMENT
The most important task in determining one’s prison sentence, and what is
just, necessary, not greater than sufficient: is to determine one’s true heart based on
what that individual has endured, how he handled the cards he was dealt, and
whether he has made positive choices with such cards.
A person’s true heart is where that person truly resides and where we discover
what Justice represents in their case. During sentencing, judges perform a
quintessential task constantly and effectively utilizing their own humanity and
experience, in assessing that of the person standing before them – ready to be
sentenced to potentially years in prison. Depending on that person’s age, family
circumstances, mental health, continued education – a careful balance few years
make all the difference.
This memorandum explores the life of Carmine Agnello, who before he
actually grew up – his childhood was in the spotlight for the world to watch him
grow; I guess hence the name of the show. Decades later, Carmine, approaching his
40th birthday, stands before this Court to be sentenced, but has one priority to take
care during this time –
.1
1
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Born April 8, 1986, Carmine entered a world where he was quickly in front
of a camera – leading to public fascination, and family legacy that was absolutely
unavoidable – and a topic for daily discussion. Even as a child, he showed a calm,
maintained composure that stood out even in a family where everyone in the house
had a strong personality. His mother, Victoria, often highlighted her sons as her
greatest accomplishments and “three fine young men,” emphasizing their kindness
and character despite the pressures around them. (See Victoria Gotti letter attached
as Exhibit A at p. SE0003). Growing up, Carmine learned early that family is both
a responsibility and a source of strength. His mother’s devotion and belief in her
sons shaped him deeply, grounding him in loyalty, resilience, and compassion.
Carmine became a fan favorite after “Growing Up Gotti” aired. Viewing in
hindsight, the world saw a charismatic, stylish, soft‑spoken young man who treated
his family with respect. Despite being thrust into fame as a teenager, Carmine carried
himself with surprising humility. Years later, those who have known Carmine can
say that he resisted being defined by the show, and has strived to make his own
stamp. He always sought out his own career path, and a way to hone his skills, where
those skills are manifested in body building, music, or his passion for cars. At a
young age he understood that reality TV was entertainment, not identity — and he
wanted to keep improving himself.
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Even when facing challenges as an adult, Carmine showed something
admirable: he never hid, never ran, and never stopped trying to better himself. He
remained close to his family, maintained dignity in public, and continued striving
for a life built on his own choices rather than inherited expectations. Even on pretrial
supervision, not a single complaint has been brought to counsel’s attention. The
noticeable shift has been Carmine’s ability to assess the gravity of this case, and
harness that to never make the same mistakes. Then literally out of nowhere, a
unique medical situation arose in his immediate family, and Carmine immediately
stepped up.
Recently, when his family learned of Victoria’s pressing medical situation,
for Carmine, less words and more actions has been his response. Immediately, he
went for testing, and obtained his own advocate upon receiving the results that he is
a h. Carmine has spent months
, and to verify that he
However, undergoing this transplant means that custody in the BOP is a huge
risk. A custody sentence – . After
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there is still a , where an
could be life threatening, or his blood levels can suggest immediate treatment.
Therefore, regularly treating with specialists will be required to monitor if Carmine
is , , and
. If anything happens then he will be in the worst place to handle such a
problem, BOP custody.
Mr. Agnello’s extreme family circumstances will be explored, first, regarding
. Second, this same transplant will be analyzed from
Defendants perspective, and how residing in BOP custody essentially equates to
little to no medical treatment if needed. To Carmine, he never
questioned the right choice; and has held the answer, which was he was going to be
.
Actions speak louder than words, and Carmine’s actions as of late are fueled
from the love and respect for his family instilled in him from a very young age.
Despite growing up in one of America’s most scrutinized families, Carmine
exhibited the importance of creativity, reinventing oneself, and always personal
growth. His journey is far more uplifting than the one found with a quick google
search, where the headlines naturally suggest something scandalous.
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Growing up, Carmine learned early that family is both a responsibility and a
source of strength. His mother’s devotion and belief in her sons shaped him deeply,
grounding him in loyalty, resilience, and compassion. Through actions instead of
words, he has proven to be a devoted son, a man who worked hard to develop real
skills, a man who matured beyond his public image, and a figure who continues to
evolve, learn, and redefine himself. His story is not one of perfection — it’s one of
perseverance. And that is what makes Carmine at his core a positive person on all
those in his life.
What remains from all this is Carmine will be standing before this Court in
2026 to be sentenced. Regardless, of whether such factors are denominated as
History, Background, and Characteristics, or any other 18 U.S.C. §3553(a) factor,
or if derived from the amendments in federal sentencing, a person’s true heart is not
going to be found in any law book.
At the end, I ask the Court to consider his actions on other matters, not the just
on the worse allegations in his life. First, he was born into one of the most publicly
scrutinized families in America. Despite that, the record will be devoid of an
example that Carmine developed into an arrogant, entitled, or hostile adult. Rather,
his personality is respectful, uninterested in exploiting notoriety, and one extremely
protective of his family. Carmine’s values may be uncommon to others of recent
generations, where it’s great to see that these fundamental values of being humble
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and valuing privacy still exist. Second, there is a special relationship between a
mother and her sons that is a constant reference in this memorandum. Having been
raised by just my mother, it’s worth mentioning the same characteristics Carmine
displays, Victoria has also shown on her own. For example, any article you read
about Victoria you can easily take away that she is protective of her sons. The
importance here is that as a public figure she does not give generic praise and never
speaks for fame or personal image.
Her praise of Carmine has always been about his behavior, whether she is
quoted saying Carmine is “a good boy with a good heart”, or “a respectful young
man” – its Carmine’s actions that I ask be considered. I can continue to make
reference after reference, but I will only touch on two other examples of where
Carmine’s actions or inactions are admirable. Carmine played musical instruments
not for ego or fame, but for the discipline of the craft. Lastly, he remains loyal to his
family name, and his actions establish he never sought to exploit his family name
for fame, money, or any other personal gain. Carmine is the opposite of hundreds if
not thousands of examples, where a family member will betray his own family in
seeking to capitalize on notoriety of such family’s name. Again, any record created
on Carmine would be devoid of such examples or characteristics.
Even though Carmine will turn 40 years-old right after sentencing, he is still
a young man with the rest of his life ahead of him. He took responsibility for his
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actions that landed him before this Court, but his true heart is even at a cross-roads.
One direction is where he stands for sentencing and serves his time as quickly as
possible. The other road is one of sacrifice and bravery, which will be explained -
never came with a moment of hesitation. Instead, he aggressively
. Surely, fast
forward six months and
When I write about a person’s true heart, Carmine’s current situation is the
definition of what I have been searching for in years of writing sentencing
memorandums. I say that because for Carmine the only thing that matters at this
moment is that from a son to his mother, he has a gift. Carmine, in gifting his kidney
means he has the gift of life, for however long, for his mother.
While on pretrial supervision, Carmine has been a model thus far during the
pendency of this case, and the public can be safe and secure if probation is sentenced.
There are alternatives to incarceration in the case of Carmine Agnello, where a
majority of the time he will be dealing with the surgery, recovery, and ability to treat
if an emergency emerges as a result of being a donor.2
2
Addressed herein is the case of Mississippi sisters, Jamie and Gladys Scott, who were released
from prison in 2011 after 16 years of a double life sentence involving a 1994 armed robbery. The
governor of Mississippi at the time “suspended their sentences” with a condition: Gladys, the
younger sister, had to donate her kidney to her older sister, Jamie. Although this was a state case,
the governor of Mississippi knew the severity of being a donor while in prison.
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We hereby, respectfully request this honorable Court take into consideration
the contents of this submission with the letters submitted in support.
II. BACKGROUND
First, the PSR points out that the guideline provisions for a total offense level
of 20 and a criminal history category of I, the guideline imprisonment range is 33
months to 41 months. (See PSR, Part D. Sentencing Options, at p. 13, ¶ 59).
However, when factors are considered that may warrant departure/variance, the
answer is one word, “None”. (Id. at p. 14, ¶ 71). This memorandum sets forth the
reasons for a variance to apply.
It is understood that as of 2026, the most significant change regarding federal
sentencing 2025 amendment, which relates to “departures” and “variances” to
remove the departure provisions from the Guidelines Manual. The 2025 amendment
reflects a shift in the federal sentencing framework, emphasizing variances under 18
U.S.C. § 3553.
The Commission removed specific “departure provisions” and policy
statements related to personal characteristics, as previously outlined in the
Guidelines Manual. The understanding is in emphasizing variances, sentencing is
intending to align with the post-Booker framework, which allows courts to impose
sentences outside the guideline range based on broader considerations, including
individual characteristics and circumstances . 18 USC, Ch. ONE, Pt. A.
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The broader consideration we ask this Court to consider and impose is an
extraordinary family circumstances, involving a son and his mother, where she has
been resented with a medical emergency and the son stepped up to the plates without
a question – and happens to be that needs to be
conducted within the next two-three months.
III. LAW AND ARGUMENT
“The Commission envisioned and framed this 2025 amendment to be
outcome neutral, intending that judges who would have relied upon facts
previously identified as a basis for a departure would continue to have the authority
to rely upon such facts to impose a sentence outside of the applicable guideline
range as a variance under 18 U.S.C. § 3553(a).”
POINT ONE:
THE COURT SHOULD IMPOSE A NON-CUSTODIAL
SENTENCE BASED ON EXTRAORDINARY FAMILY
CIRCUMSTANCES UNDER 18 U.S.C. § 3553(a)(1): MR.
AGNELLO IS THE SOLE FOR
KIDNEY TRANSPLANT
The Court should grant a significant downward variance pursuant to 18 U.S.C.
§ 3553(a)(1) based on the extraordinary and unprecedented family circumstances
present in this case. Carmine Gotti Agnello, is the only identified compatible donor
for his mother, Victoria Gotti, who faces an imminent terminal condition or
permanent debilitation without an urgent kidney transplant. (See CARSWELL, John
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Gotti’s Daughter Victoria to Undergo Kidney Transplant with Her Son as Donor
(Exclusive), PEOPLE MAGAZINE, (Nov. 25, 2025) attached as Exhibit E at p.
SA0087). While family responsibilities are typically insufficient to warrant
sentencing reductions, the specific and extraordinary nature of this case—where Mr.
Agnello’s immediate availability can literally be classified along the lines of a matter
of life and death for an innocent third party—places it squarely outside the
“heartland” of cases. With the broader considerations of variances to align with the
post-Booker framework, the family dynamic here demands judicial consideration of
a non-incarceratory sentence that serves the statutory purposes of sentencing under
18 U.S.C. § 3553(a) while affording a Defendant, who quickly took responsibility
for his actions, to still preserve his own mother’s life, when no other family member
is able to do so.
A. LEGAL FRAMEWORK: THE 2025 GUIDELINES SIMPLIFICATION AND THE
PRIMACY OF 18 U.S.C. § 3553(A) VARIANCE AUTHORITY
Effective November 1, 2025, the United States Sentencing Commission
implemented sweeping amendments to the Guidelines Manual that fundamentally
restructured the sentencing framework and eliminated most departure policy
statements from Chapter 5, Parts H and K, as detailed in the Official Text of the 2025
Amendments (United States Sentencing Commission, 2025).3
3
(See USSC Simplification Summary Chart, 2025) (explaining the Commission deleted Policy
Statement §5H1.6 (Family Ties and Responsibilities) and §5H1.4 (Physical Condition) as part of
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Under the simplified two-step process adopted in the 2025 amendments,
courts, first, now calculate the guidelines range as the “starting point and initial
benchmark,” consistent with the Gall holding. Gall v. United States, 552 U.S. 38
(2007). Then courts consider the § 3553(a) factors in determining whether a variance
from the guidelines is warranted. (Annotated 2025, Chapter 5, USSC).
The deletion of §5H1.6 and §5H1.4 does not eliminate or even diminish the
Court's authority to consider extraordinary family circumstances and medical
conditions in sentencing. To the contrary, it clarifies that such considerations are now
governed directly by the statutory sentencing factors enumerated in 18 U.S.C. §
3553(a), which have governed federal sentencing since the Sentencing Reform Act
of 1984, and which the Supreme Court held in Booker, must guide all sentencing
determinations. United States v. Booker, 543 U.S. 220 (2005).
Section 3553(a)(1) explicitly directs courts to consider “the history and
characteristics of the defendant,” a phrase that necessarily encompasses the
defendant's family situation, relationships, responsibilities, and the impact of
incarceration on innocent third parties. Section 3553(a)(2)(D) further requires courts
to “provide the defendant with needed . . . medical care . . . in the most effective
a comprehensive "simplification" initiative designed to streamline the sentencing process and
acknowledge the post-Booker reality that "sentencing courts increasingly eschewed departures,
applying Section 3553(a) variances instead".).
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manner” – a mandate that extends to considering how incarceration will affect the
defendant's ability to provide life-saving medical assistance to family members.
Importantly, the Commission's own guidance in the 2025 amendments
confirms that the deletion of Chapter 5, Part H policy statements does not prohibit
consideration of offender characteristics; but, rather moves such analysis to the
variance framework. (Id.)
As the Commission explained in proposing the simplification amendments,
"sentencing data showed that sentencing courts increasingly eschewed departures,
applying Section 3553(a) variances instead," and the 2025 changes "recognize this
trend by collapsing the second and third steps into a single step" under which courts
apply § 3553(a) factors to determine whether a variance is warranted. (Id.) The
Commission's 2023 Primer on Departures and Variances similarly emphasizes that
"variances outpace departures significantly," with courts frequently citing
"rehabilitation or family ties for downward variances, reflecting § 3553(a)'s
individualized focus".
Before their deletion, §§5H1.6 and 5H1.4 established the legal framework
under which courts could grant downward departures based on extraordinary family
circumstances or extraordinary physical impairment. U.S. SENTENCING GUIDELINES
MANUAL, Chapter 5, Part H (2024).
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While these policy statements have been removed from the Guidelines, the
case law interpreting them remains highly instructive in evaluating Mr. Agnello's
circumstances under § 3553(a)(1). Former §5H1.6 provided that "[f]amily ties and
responsibilities . . . are not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range". USSG §5H1.6 (2024). But, courts
uniformly interpreted the phrase "not ordinarily relevant" to mean that while typical
family responsibilities do not warrant departure, extraordinary family circumstances
falling outside the heartland do justify sentencing relief under § 3553(a)(1). United
States v. Johnson, 964 F.2d 124 (2d Cir. 1992); United States v. Deigert, 916 F.2d
916 (4th Cir. 1990).
The Second Circuit's seminal decision in Johnson established that
extraordinary family circumstances standing alone can justify a downward departure
when a defendant bears sole responsibility for the upbringing and survival of
dependents. United States v. Johnson, 964 F.2d 124 (2d Cir. 1992). In Johnson, the
court affirmed a thirteen-level departure for a single mother who served as the sole
caregiver for three young children and the six-year-old child of her institutionalized
daughter. The court reasoned that the rationale for such relief “is not that [the
defendant's] family circumstances decrease her culpability, but that we are reluctant
to wreak extraordinary destruction on dependents who rely solely on the defendant
for their upbringing.” (Id. at 129). Under this standard, family circumstances rise to
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the level of "extraordinary" when incarceration would impose harm on dependents
that transcends the typical hardship experienced by families of incarcerated
individuals, creating a situation where the defendant's absence would cause
catastrophic consequences for innocent third parties.
The Fourth Circuit reached a similar conclusion in Deigert, holding that
§5H1.6 permits departures for extraordinary family circumstances. United States v.
Deigert, 916 F.2d 916, 919 (4th Cir. 1990). Likewise, the Tenth Circuit in Pena,
upheld a downward departure based in part on the defendant's unique family
responsibilities to two infants whose welfare would be jeopardized by the
defendant's incarceration. United States v. Pena, 930 F.2d 1486, 1494-95 (10th Cir.
1991).
Across circuits, courts recognized that the test for "extraordinary"
circumstances focuses on whether the defendant's family situation is unique—and
whether the defendant occupies an irreplaceable role in preserving the life or
wellbeing of a family member.
This body of case law, developed over decades under former §5H1.6, remains
fully applicable in the post-2025 Guidelines framework as courts evaluate family
circumstances under § 3553(a)(1)-(2)(See Point I(B), infra) (highlighting that post-
Booker goals include providing defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner.).
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Courts have consistently recognized that family ties may be considered under §
3553(a)(1) even where they would not support a formal departure, and several
circuits have granted variances based on family circumstances that meet the
"extraordinary" standard. For example:
(1) The First Circuit has affirmed downward variances for
defendants with extraordinary caregiving
responsibilities, including a defendant caring for a wife
battling terminal cancer and a defendant providing care
for a daughter with disabilities. United States v.
Prosperi, 686 F.3d 32, 48-49 (1st Cir. 2012).
(2) The Fifth Circuit has held that the district court did not
abuse its discretion in granting a variance based on a
defendant's status as a single parent with a young son
who had disabilities. United States v. Williams, 517 F.3d
801 (5th Cir. 2008).
(3) The Tenth Circuit applies the "extraordinary
circumstances" standard of former §5H1.6 when
evaluating family-based variances under § 3553(a), and
has upheld variances where defendants occupy unique
caregiving roles. United States v. Muñoz-Nava, 524 F.3d
1137 (10th Cir. 2008).
(4) The Eleventh Circuit has endorsed consideration of
family responsibilities as part of the defendant's "history
and characteristics" under § 3553(a)(1), noting that
district courts "can justify consideration of family
responsibilities... for reasons extending beyond the
Guidelines." United States v. Vandergrift, 754 F.3d 1303,
1311 (11th Cir. 2014).
In the present case, Mr. Agnello’s role as his mother’s sole identified kidney
donor satisfies—and indeed far exceeds—the "extraordinary circumstances"
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threshold established in Johnson, Deigert, and their progeny. Unlike the caregiving
responsibilities at issue in those cases, where incarceration would impose emotional
and developmental harm on dependent children, but would not directly cause their
death, Mr. Agnello's situation is similar.
The "destruction" created by his incarceration would be literal, not figurative. No
legitimate penological interest is served by imposing a sentence that effectively
sentences an innocent third party—the defendant's mother—to a terminal status.
B. THE STATUTORY PURPOSES OF SENTENCING UNDER 18 U.S.C. §
3553(A)(2) ARE FULLY ACHIEVABLE THROUGH A NON-CUSTODIAL
SENTENCE
Section 3553(a)(2) directs the Court to impose a sentence that will (A) "reflect
the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense"; (B) "afford adequate deterrence to criminal conduct";
(C) "protect the public from further crimes of the defendant"; and (D) "provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner". Each of these purposes can be
fully and effectively achieved through a non-custodial sentence of home
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confinement, supervised release, and community service, without imposing the
irreversible collateral consequence of foreclosing the life-saving kidney transplant.
i. Just Punishment and Respect for the Law (§ 3553(a)(2)(A))
Mr. Agnello's offense involved cryptocurrency fraud—a serious economic
crime that warrants substantial punishment. However, the Guidelines calculation
already accounts for the seriousness of his conduct through the offense level and
guideline range calculation. A sentence of home confinement for a period equivalent
to or longer than the low end of the guideline range, combined with stringent
conditions of supervised release including electronic monitoring, community
service, and financial restitution, would adequately "reflect the seriousness of the
offense" and "promote respect for the law". Indeed, public respect for the law is
arguably better served by a sentence that demonstrates the judiciary's commitment
to proportionality and individualized justice than by a mechanical application of
incarceration that results in the preventable medical harm of an innocent person, or
close family member whose is neither Defendant’s spouse nor his children. But, the
broader discretion was put in place for a matter such as this where this Court can
truly have less hurdles in determining a just sentence for a unique situation.
ii. Deterrence (§ 3553(a)(2)(B))
Both specific and general deterrence are adequately served by a non-custodial
sentence. Specific deterrence—preventing Mr. Agnello from committing future
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crimes—is accomplished through the supervision, monitoring, and restrictive
conditions of a home confinement sentence. The Presentence Investigation Report
documents that Mr. Agnello has already ceased the cryptocurrency investment
activities that contributed to his offense, has engaged in mental health treatment, and
has established a legitimate business employing three people. General deterrence—
sending a message to others who might contemplate similar conduct—is served by
the fact of conviction, the public nature of the sentencing, the imposition of
substantial restrictions on Mr. Agnello's liberty, and the certainty of punishment. The
deterrent value of federal prosecution does not depend solely on incarceration;
supervised release with stringent conditions, restitution, and community service all
serve deterrent purposes.
iii. Public Safety (§ 3553(a)(2)(C))
Mr. Agnello poses minimal risk to public safety. His offense was financial in
nature, involved no violence or threats of violence, and targeted no vulnerable
victims. He has no prior criminal history. The instant offense was driven in
significant part by a gambling addiction related to cryptocurrency trading, which he
has discontinued and for which he is receiving treatment.
A sentence of home confinement with electronic monitoring, coupled with
supervised release conditions prohibiting cryptocurrency trading and requiring
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continued mental health treatment, adequately protects the public from any risk of
future criminal conduct.
iv. Rehabilitation and Effective Treatment (§ 3553(a)(2)(D))
This statutory factor weighs decisively in favor of a non-custodial sentence.
Section 3553(a)(2)(D) explicitly directs the Court to “provide the defendant with
needed... medical care... in the most effective manner.” A sentence that prevents Mr.
Agnello from . Also
preventing this goal would simultaneously deprive him of access to the
he requires—plainly violates this statutory
mandate. As discussed in greater detail in Section II, infra, Mr. Agnello requires
ongoing
that the Bureau of Prisons frequently restricts or denies.
Moreover, upon donating his kidney, Mr. Agnello will require
that the BOP is institutionally incapable of providing.
, he will have to .
Additionally, he will face immediate
that require recovery in a sterile, stress-
free environment not available in a correctional setting. (See NATIONAL KIDNEY
FOUNDATION, What to Expect After Donation, NKF, at Exhibit S (
).
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Furthermore, authoritative medical guidelines mandate rigorous
—including mandatory checks at 6 months, 12 months, and 24 months to
monitor glomerular filtration rate (GFR) and blood pressure—to prevent the onset
of donor-specific risks such as hypertension and end-stage renal disease. (KIDNEY
DISEASE: IMPROVING GLOBAL OUTCOMES (KDIGO), Living Kidney Donor Work
Group. KDIGO Clinical Practice Guideline on the Evaluation and Care of Living
Kidney Donors (Transplantation 2017), 101 (Suppl 8S):S1–S109 attached as
Exhibit L at p. SE0264 – 0280; SE0314)(establishing global standards for donor
follow-up); MUZAALE, MD, ET AL., Risk of End-Stage Renal Disease Following Live
Kidney Donation, JAMA (February 2014) attached as Exhibit F at p. SE0097
(finding 90 per 10,000 donors develop ESKD vs. 14 per 10,000 non-donors).
The Bureau of Prisons' documented history of “fragmented and delayed” care
and “lack of preventive healthcare screening” poses an unacceptable danger to an
inmate such as Carmine. Cf. DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR
GENERAL, Inspection of the Federal Bureau of Prisons’ Federal Medical Center
Devens (2024) attached as Exhibit D at p. SE0016.
As a living donor, Carmine will easily be classified as a patient with a
“voluntarily” medical “impairment” in a facility where inmates already have
“difficulty accessing medical care for routine conditions”. (Id. at SE0037). This
recovery calls for continued treatment and follow-up with a medical staff familiar
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with the patient, where a BOP “walk-in clinic” or “sick calls” will have little to no
impact. In short, BOP treatment, and the lack thereof, simply causes negative affects
on certain inmates’ overall health, and result in “more costly treatment” needed later
– or in this case, when Carmine gets out. (Id. at SE0039) (finding by the Inspections
Division of the Federal Bureau of Prisons’ that “none of the 21 inmates over age 50,
including the 10 who had a preventive health screening, had received a cognitive
impairment screening as part of their preventive healthcare.”). Ultimately, its
reasonable to conclude that due to a variety of reasons, Carmine would enter the
BOP with an “exceptional medical impairment” and will not receive routine medical
care or screening, thereby rendering his incarceration as a direct threat to his long-
term survival.
A deeper analysis of kidney donation establishes a very clear principle:
“[d]onating a kidney is a decision with lifetime implications for the donor.” (Exhibit
L: KDIGO, Clinical Practice Guideline on the Evaluation and Care of Living
Kidney Donor, at p. SE0243).
C. FACTUAL PREDICATE: VICTORIA GOTTI'S LIFE-THREATENING
MEDICAL CRISIS AND MR. AGNELLO'S UNIQUE ROLE AS HER SOLE
,
. By November 2025, it was
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publicly reported that Ms. Gotti required an urgent kidney transplant and had been
accepted for surgery at NYU Langone Health in New York City. Medical experts
have confirmed that without a transplant, Ms. Gotti faces a stark choice: permanent
dependence on dialysis—a grueling regimen requiring three treatments per week,
each lasting approximately four hours, with significant morbidity and a five-year
survival rate of only 40%—or death from end-stage renal disease. The median wait
time for a deceased-donor kidney in New York ranges from three to five years,
meaning that Ms. Gotti's survival depends on receiving a living-donor kidney
transplant in the near term.
After extensive medical testing, Mr. Carmine Gotti Agnello
r. Living-donor kidney transplantation offers
dramatically superior outcomes compared to deceased-donor transplantation, with
one-year graft survival rates exceeding 95% and significantly extended recipient
lifespans. Mr. Agnello has voluntarily stepped forward to donate his kidney to save
his mother's life, a decision that has been extensively documented in major media
outlets including People Magazine, Yahoo News, and The New York Post. (See
People Magazine at Exhibit E). This widespread coverage underscores both the
urgency of Ms. Gotti's condition and the profound public interest in ensuring that
this life-saving transplant proceeds without delay.
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Ms. Gotti's medical history further compounds the urgency of her need for
transplantation. She has suffered from mitral valve prolapse (MVP), a chronic heart
condition, since her twenties and has taken blood thinners for decades to manage the
condition. She also underwent surgery in 2005 to address precancerous breast cells.
These pre-existing health conditions render her particularly vulnerable to the
complications of prolonged dialysis dependence, which is associated with increased
cardiovascular mortality and heightened infection risk. The transplant surgery has
been scheduled to occur imminently, with Ms. Gotti's physicians advising that a
recovery period of up to three months will be required following the procedure.
Critically, Mr. Agnello is the only .
Unlike typical cases involving family hardship—where incarceration may cause
emotional or financial strain but does not directly threaten a family member's
survival—Mr. Agnello's incarceration would effectively foreclose the only viable
path to preserving his mother's life. If Mr. Agnello is sentenced to a term of
imprisonment, the transplant surgery cannot proceed on the medically necessary
timeline. Ms. Gotti will be forced onto dialysis, with its high chance of a 40% rate,
after five-years of commencing dialysis. See TONELLI, ET AL., Systematic Review:
Kidney Transplantation Compared with Dialysis, AMERICAN JOURNAL OF
TRANSPLANTATION attached as Exhibit K at SE 0220 (finding - as compared with
dialysis - “kidney transplantation is associated with substantial reductions in the risk
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of mortality and cardiovascular events, as well as clinically relevant improvements
in QoL.”); GURA, M.D., What is the Life Expectancy of a Person on Kidney
Dialysis? (July 14, 2025) attached as Exhibit M at SE0327 (explain that the average
five five-year survival rate is approximately 35-40%, meaning that 4 out of 10 people
on dialysis are alive five years after starting treatment). The alternative is she will
face the uncertain prospect of waiting years for a deceased-donor organ that may
never become available.
This should not the case where another family member can assume the
defendant's caregiving responsibilities; it is a case where the defendant's biological
compatibility makes him irreplaceable. The extraordinary nature of these
circumstances places them far outside the heartland of typical family responsibility
cases and warrants individualized consideration under § 3553(a)(1).
D. INCARCERATING MR. AGNELLO WOULD IMPOSE IRREVERSIBLE HARM
ON AN INNOCENT THIRD PARTY AND CONTRAVENE THE PURPOSES OF
SENTENCING
The imposition of a custodial sentence in this case would punish not only Mr.
Agnello but also—and far more severely—his mother, an innocent third party who
bears no culpability for the defendant's offense. As the Second Circuit observed in
Johnson, the justification for considering extraordinary family circumstances “is not
that [defendant's] family circumstances decrease her culpability, but that we are
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reluctant to wreak extraordinary destruction on dependents who rely solely on the
defendant.” United States v. Johnson, 964 F.2d 124 (2d Cir. 1992).
Here, the “destruction” wrought by Mr. Agnello's incarceration would be
literal: Ms. Gotti's death or permanent disability. No legitimate penological interest
identified in § 3553(a)(2) is served by imposing a sentence that effectively sentences
Defendant – who cannot be a living donor while in prison, or cannot enter prison
until post-transplant confirms known complications thereafter are non-existent.
The ethical and legal implications of conditioning access to life-saving
medical treatment on a criminal sentence are profound. In 2011, the Governor of
Mississippi granted an indefinite suspension of sentence to Gladys Scott specifically
to enable her to donate a kidney to her incarcerated sister, Jamie, who was suffering
from end-stage renal disease and costing the state $200,000.00 annually in dialysis
expenses. See TIMOTHY WILLIAMS, Sisters’ Prison Release Is Tied to Donation of
Kidney, NEW YORK TIMES (Dec. 30, 2010)(available at
https://www.nytimes.com/2010/12/31/us/31sisters.html); See also CBS NEWS,
Sisters Leave Prison Under Kidney Sharing Deal (Jan. 7, 2011) attached as Exhibit
N at p. SE0335-03342.
Governor Haley Barbour’s office stated that the kidney donation “should be
scheduled with urgency,” and the NAACP confirmed that Ms. Scott would not be
returned to prison if the donation could not proceed for medical reasons.
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(ASSOCIATED PRESS, Freed Sisters Leave Miss. Prison, Jan. 7, 2011; NPR, Miss.
Governor Suspends Life Sentences for Sisters (Dec. 30, 2010). While the Mississippi
decision raised ethical questions under the National Organ Transplant Act (NOTA),
legal scholars and ethicists widely agreed that organ donation in the context of
criminal sentencing is permissible under criminal justice standards, particularly
when the alternative is the preventable death of a family member. (GLENN COHEN,
The Mississippi Kidney Case, Harvard Law Review Blog, (Jan. 3, 2011) (noting that
conditioning release on donation may be coercive but recognizing the state's interest
in saving lives and costs); AMERICAN JOURNAL OF BIOETHICS, The Mississippi
Decision Exchanging Parole for Kidney Donation (Jan. 6, 2011).
The principle underlying the Mississippi case applies with even greater force
here, where the Court has the opportunity to fashion a sentence prospectively rather
than modifying an already-imposed sentence. The Organ Procurement and
Transplantation Network (OPTN) addresses both “organ procurement” and
“allocation”, where a series of Committee reports defines and applies ethical
standards that should apply to procurement and allocution of organs. See STRYKER-
ANN VOSTEEN, MPA, ET AL, Briefing to the OPTN Board of Directors on Ethical
Evaluation of Multiple Listing, OPTN ETHICS COMMITTEE (2023) attached as
Exhibit V at p. SE0492. Since at least 2015, the ethics committee report has
explained that “the Committee must consider the ethical principles described below
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as they pertain to the transplant community broadly: “equity”, which encompasses
distributive and procedural justice, “utility”, and “autonomy”.4 See STRYKER-ANN
VOSTEEN, OPTN ETHICS COMMITTEE (2023) at p. SE0492.
Essentially, a person’s “autonomy” coupled with the “access to a transplant”
applies the concepts of “equity” and “justice,” similar to the law. (Id. at p.SE0492).
Equity, by definition applies “fairness” to “the pattern of distribution of the benefits
and burdens of an organ procurement and allocation program.” Id. “Distributive
justice” dictates “fairness” ensuring those in need of an organ, a equal opportunity
to benefit from a transplant. Id. (citing OPTN ETHICS COMMITTEE, Manipulation of
the Organ Allocation System Waitlist Priority through the Escalation of Medical
Therapies, June 2018, [available at
https://optn.transplant.hrsa.gov/media/2500/ethics_whitepaper_201806.pdf.]).
The reasoning here is that defendant’s impending incarceration should not
preclude him from ensuring organ procurement of his kidney to be distributed to his
immediate family member. Prison can preclude such a transplant because the
medical circumstances are too heightened and thus too dangerous. The third party
here in need of a kidney is the turning factor that places this unique situation squarely
4
Id. (quoting OPTN Ethics Committee, Ethical Considerations for the Evaluation of Prisoners
for Organ Transplantation, (2023) (defining “Autonomy” as “actions or practices tend to be right
insofar as they respect or reflect the exercise of self-determination, while not impairing the
autonomy of another individual.”).
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within the consistency of sentencing under § 3553(a)(2). To hold otherwise would
be to prioritize rigid adherence to a Guidelines range, when such results directly
conflict with a transplant that can preserve Defendant’s family member with life—a
result that no statute or policy statement compels and that fundamental principles of
justice forbid.
POINT TWO:
THE COURT SHOULD IMPOSE A NON-CUSTODIAL
SENTENCE BASED ON MR. AGNELLO'S
AND THE
BUREAU OF PRISONS' DOCUMENTED INABILITY TO
PROVIDE ADEQUATE CARE
In addition to the extraordinary family circumstances discussed above, the
Court should grant a downward variance under 18 U.S.C. § 3553(a)(1) and (a)(2)(D)
based on Mr. Agnello's . Also, the Bureau
of Prisons’ has a documented inability to provide the level of care Agnello will
require, particularly following his
As previously noted, upon donating his kidney, he will acquire what former
USSG §5H1.4 described as an "extraordinary physical impairment" that will render
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him medically vulnerable and in need of specialized post-surgical care that the BOP
is institutionally incapable of providing. Incarcerating Mr. Agnello under these
circumstances would subject him to a substantial risk of serious medical harm,
potentially rising to the level of cruel and unusual punishment in violation of the
Eighth Amendment, and would directly contravene the statutory mandate in §
3553(a)(2)(D) to “provide the defendant with needed . . . medical care . . . in the
most effective manner.”
A.
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that he has since quit cryptocurrency trading and
(Id. at p. 16, ¶42).
The current prison system is faced with two epidemics, mass incarceration
and the . It should not come as a shock that prison population houses
disproportionate amounts of inmates with ,
TAYABJI, Rehabilitation Under the Rehabilitation Act: The Case for
Medication-Assisted Treatment in Federal Correctional Facilities, 101 B.U.L. Rev
Online 79 (2021) attached as Exhibit U at p. SE0411. A comprehensive 2021 study
published in the Boston University Law Review documented the BOP’s systemic
failure to provide medication-assisted treatment (“MAT”) for OUD, finding that
“incarcerated individuals are often denied access to such medication” despite the
Rehabilitation Act's prohibition on disability discrimination. TAYABJI, Rehabilitation
Under the Rehabilitation Act, at p. SE0411-0412.
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For Carmine this means that not only will he not receive proper follow-up and
recovery treatment to ensure him being a donor does not follow with adverse medical
effects;
The study concluded that “the
failure to provide MAT in correctional facilities . . . increases an incarcerated
individual's likelihood of
”. Id. at
SE0424).
While Mr. Agnello's the
underlying systemic problem is identical: the BOP routinely denies inmates access
to medications that are medically necessary and legally prescribed, substituting its
own judgment for that of qualified treating physicians.
(See PSR at p. 16, ¶ 41).
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This deprivation of directly contravenes §
3553(a)(2)(D), which mandates that the Court “provide the defendant with needed...
medical care . . . in the most effective manner.” A sentence of home confinement
would enable Mr. Agnello to
B. LIVING KIDNEY DONATION WILL RENDER MR. AGNELLO
MEDICALLY VULNERABLE AND IN NEED OF SPECIALIZED POST-
SURGICAL CARE THAT THE BOP CANNOT PROVIDE
Upon donating his kidney to his mother, Mr. Agnello will transition from a
medically healthy individual to a post-nephrectomy patient with a
—a status that former USSG §5H1.4 recognized as an "extraordinary physical
impairment" warranting sentencing consideration. Although the United States
Sentencing Commission deleted Policy Statement §5H1.4
Prior to its deletion, §5H1.4 provided that “[p]hysical condition or appearance
. . . is not ordinarily relevant in determining whether a sentence should be outside
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the applicable guideline range.” However, an extraordinary physical impairment
may be a reason to impose a sentence below the applicable guideline range; for
example, in the case of a seriously infirm defendant, home detention may be as
efficient as, and less costly than, imprisonment. Courts interpreting §5H1.4
established a two-step analysis: first, the district court must make a factual finding
as to whether the defendant's physical condition constitutes an “extraordinary
physical impairment”; second, if such an impairment exists, the court must exercise
its discretion to determine whether a downward departure is warranted through a
shorter term of imprisonment or an alternative to confinement.
In Martinez-Guerrero, the Ninth Circuit held that the inquiry into whether a
physical impairment is "extraordinary" must consider multiple factors, not merely
the Bureau of Prisons' ability to accommodate the impairment. United States v.
Martinez-Guerrero, 987 F.2d 618 (9th Cir. 1993). The court emphasized that “[a]
district court may consider any number of circumstances in making its finding on
the question of extraordinary physical impairment under section 5H1.4,” including
the defendant's "potential for victimization" and "extreme vulnerability" due to the
impairment. Id. The Eighth Circuit in United States v. Long, 977 F.2d 1264 (8th Cir.
1992), affirmed a downward departure on the grounds that “an extraordinary
physical impairment that results in extreme vulnerability is a legitimate basis for
departure”.
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Similarly, the Second Circuit in Lara, upheld a downward departure based on
the defendant's “particular vulnerability [to victimization in prison] due to his
immature appearance, sexual orientation, and fragility”. United States v. Lara, 905
F.2d 599, 603 (2d Cir. 1990).
Mr. Agnello's
In the immediate post-operative period
(0-90 days), donors face a mortality risk of approximately 3.1 per 10,000.00
donations, with the highest risk occurring in the first week due to surgical
hemorrhage, infection, and cardiopulmonary complications. SEGEV, MD, ET AL.,
Perioperative Mortality and Long-term Survival Following Live Kidney Donation,
JAMA, attached as Exhibit G at p. SE0120 (analyzing 80,347 donors and finding
3.1 deaths per 10,000 in first 90 days); See also MUZAALE M.D., ET AL., Risk of End-
Stage Renal Disease Following Live Kidney Donation, JAMA, (Feb. 12, 2014)
attached as Exhibit F at SE0097.
Beyond perioperative mortality,
, and timely surgical consultation if
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complications arise. KDIGO, Clinical Practice Guideline on the Evaluation and
Care of Living Kidney Donors (2017), attached as Exhibit L at p. SE0305
(mandating monitoring for surgical complications).
The provision of this level of care is entirely beyond the BOP’s institutional
capacity. As discussed in Point I, supra, the BOP's medical facilities are plagued by
systemic failures. A 2024 Office of the Inspector General (OIG) report on the Federal
Medical Center (FMC) Devens—one of the BOP's flagship medical facilities—
documented “potentially dangerous medication distribution, lack of preventive
healthcare screening, and inconsistent processes for requesting and accessing care”.
(DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL, Inspection of the
Federal Bureau of Prisons' Federal Medical Center Devens (2024) attached as
Exhibit D at p. SE0015-0016).
The report further noted “fragmented and delayed follow-up inmate care” and
systemic failures in credential verification and oversight. (Id. at p. SE00168-0017).
Additionally, a 2025 investigative report by The Marshall Project exposed
catastrophic failures in the dialysis program at FMC Carswell, the nation’s only
federal prison for women offering in-patient dialysis, where patients described
“missed treatments, poor education for patients, dialysis machines that break down
mid-treatment or that lacked enough clean water,” and multiple preventable deaths.
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KIM, Women Are Sent to This Federal Prison for Dialysis. They Say It’s Killing
Them, THE MARSHALL PROJECT (Dec. 16, 2025) attached as Exhibit Q at p. SE0360.
Academic literature confirms that incarcerated individuals face “limited
access to adequate healthcare” and that the prison environment amplifies the risks
associated with kidney donation. (AHALT ET AL., The State of Kidney Care in U.S.
Prisons, American Journal of Kidney Diseases (2020). A 2020 study published in
the American Journal of Kidney Diseases found that, overall, in the prison setting
there is not even a plan or method in place to prevent inadequate medical screening
and treatment from continuing or getting worse. This seems to be the unspoken truth
despite those in the profession and at in charge of the prison having a “legal
obligation to provide a community standard of care” to those housed at the facility.
Additionally concerning, is the scant data, transparency, and external
oversight of the prison’s management of kidney disease, or other diseases which
requiring consistent care. There is no accuracy in the data regarding a donors medical
condition while they are in prison, and this is a Prisons such as FMC Devens and
Carswell – which are supposed to be set up as a “hospital-like” facility. KIM, THE
MARSHALL PROJECT attached as Exhibit Q at p. SE0362; See also Exhibit D.
Simply put, the actual details of the lack of medical treatment provided to those in
need of continuing care – without even touching what needed as a kidney donor,
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such as a strict diet, water intake, blood work to minatory level –creates significant
barriers to ensuring continuity of care.
For a post-nephrectomy patient like Mr. Agnello, who will require meticulous
wound care, pain management, monitoring of renal function, and prompt
intervention in the event of complications, the BOPs inadequate medical
infrastructure poses an unacceptable risk that directly contravenes § 3553(a)(2)(D)'s
mandate to provide medical care “in the most effective manner.”
C. THE UNITED STATES SENTENCING COMMISSION HAS RECOGNIZED
THAT THE BOP'S INABILITY TO PROVIDE ADEQUATE MEDICAL CARE
CONSTITUTES AN EXTRAORDINARY AND COMPELLING REASON FOR
SENTENCE REDUCTION UNDER USSG §1B1.13
In November 2023, the United States Sentencing Commission amended the
policy statement governing compassionate release under 18 U.S.C. § 3582(c)(1)(A)
to explicitly recognize that it constitutes an "extraordinary and compelling reason"
warranting sentence reduction when "the Bureau of Prisons is unable to provide
adequate care for the defendant's medical condition". This amendment, codified at
USSG §1B1.13(b)(1)(C), provides that extraordinary and compelling reasons exist
when:
The defendant is—(i) suffering from a medical condition
that requires long-term or specialized medical care that is
not being provided; and (ii) as a result, the defendant is at
risk of serious deterioration in health or death.
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While §1B1.13 addresses post-sentencing compassionate release rather than
initial sentencing, the Commission's recognition that the BOP routinely fails to
provide adequate medical care is directly relevant to the Court's initial sentencing
determination under § 3553(a)(2)(D). The Commission's findings are based on
"extensive empirical data and judicial experience" demonstrating that the BOP
routinely fails to meet its constitutional obligation under Estelle v. Gamble, 429 U.S.
97 (1976), to provide inmates with adequate medical care. Courts have applied
§1B1.13(b)(1)(C) to grant compassionate release in cases involving serious medical
conditions that the BOP cannot adequately manage, including cancer patients who
received "abysmal" care from the BOP and individuals whose serious medical
conditions deteriorated due to the BOP's failure to provide timely surgery.
The Commission's explicit recognition in §1B1.13(b)(1)(C) that inadequate
BOP medical care constitutes an "extraordinary and compelling" circumstance
supports the Court's authority to impose a non-custodial sentence under §
3553(a)(2)(D) in circumstances where the defendant will require specialized medical
care that the BOP cannot provide. Mr. Agnello will require long-term monitoring
and specialized care following his kidney donation—care that §1B1.13(b)(1)(C)
recognizes the BOP is "unable to provide." Sentencing him to incarceration would
guarantee that he will experience the "serious deterioration in health or death" that
§1B1.13(b)(1)(C) identifies as an extraordinary and compelling reason for release.
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It makes no sense as a matter of policy or justice to sentence Mr. Agnello to
imprisonment knowing that the inadequacy of BOP medical care will necessitate a
compassionate release motion within months of his arrival at a BOP facility. A non-
custodial sentence of home confinement that enables him to receive community-
standard post-surgical care from his transplant team at NYU Langone Health is the
most effective means of complying with § 3553(a)(2)(D)'s mandate.
POINT THREE:
THE COURT SHOULD IMPOSE A NON-CUSTODIAL
SENTENCE BECAUSE THE LOSS-DRIVEN FRAUD GUIDELINE
PRODUCES AN ABSURD AND DISPROPORTIONATE RESULT
THAT JUDGES ACROSS THE EASTERN DISTRICT, SOUTHERN
DISTRICT, AND SECOND CIRCUIT HAVE UNIFORMLY
CONDEMNED
The Court should grant a significant downward variance under 18 U.S.C. §
3553(a) because Mr. Agnello's advisory Guidelines range of 33 to 41 months. (See
PSR, Part D. Sentencing Options, at p. 13, ¶ 59). Such range is driven almost entirely
by a loss enhancement that bears no relationship to his culpability, the harm he
caused, or any legitimate penological purpose. See United States v. Cavera, 550 F.3d
180, 190 (2d Cir. 2008) (en banc) (holding that district courts must consider whether
Guidelines ranges "fail[] properly to reflect § 3553(a) considerations" and that "a
district court may vary from the Guidelines range based solely on policy
considerations, including disagreements with the Guidelines").
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Judges throughout the Eastern District of New York, the Southern District of
New York, and the Second Circuit have spent nearly two decades denouncing the
fraud guideline's obsessive focus on dollar amounts as "patently absurd," "irrational,
silly and ridiculous," "fundamentally flawed," and "a black stain on common sense."
The guideline that governs Mr. Agnello's sentence—USSG §2B1.1—was
never rooted in empirical data, has been repeatedly amended to increase severity
without justification, and routinely produces sentences so divorced from reality that
judges reject it in the overwhelming majority of cases. In Mr. Agnello's case, where
fourteen of his twenty offense levels (See PSR at ¶ 11-12) derive solely from a loss
calculation that ignores every meaningful indicator of blameworthiness, the Court
should follow the unanimous guidance of this Circuit's jurists and impose a non-
custodial sentence that reflects the actual seriousness of his conduct.
A. THE FRAUD GUIDELINE'S LOSS ENHANCEMENT IS NOT BASED ON
EMPIRICAL DATA AND HAS BEEN UNIVERSALLY CRITICIZED AS
PRODUCING IRRATIONAL RESULTS
The United States Sentencing Commission's fraud guideline stands as a
singular aberration in the federal sentencing scheme: it is the only major guideline
that the Commission deliberately untethered from empirical data reflecting actual
judicial sentencing practices. When the Commission drafted the original Guidelines
in 1987, it reviewed presentence reports from 10,000 cases and committed to an
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"empirical approach that used as a starting point data estimating pre-guidelines
sentencing practice." USSG Ch. 1, Pt. A.
The fraud guideline, however, was an exception. As Justice Stephen Breyer—
himself a member of the original Sentencing Commission—later acknowledged, the
Commission abandoned "the touchstone of prior past practice" when constructing
the fraud guideline. The Commission excluded fifty percent of the fraud sentencing
data at the outset by deleting all cases in which judges had imposed probation, and
then recommended sentences more severe than the mean of the remaining custodial
sentences. BARRY BOSS & KARA KAPP, How the Economic Loss Guideline Lost its
Way, and How to Save It, 18 Ohio St. J. Crim. L. 605, 609 (2021) attached as Exhibit
T at p. SE0390.
This original deviation from empirical reality—troubling though it was—
pales in comparison to the amendments that followed. In 1989, a mere two years
after the Guidelines took effect, Amendment 154 increased offense levels for high-
dollar frauds. In 2001, Amendment 617 fundamentally restructured the loss table by
switching from one-level increases per tier to two-level increases per tier, effectively
doubling the punitive impact of the loss enhancement.
A fraud that once warranted an 11-level increase suddenly called for an 18-
level increase; today, after the 2015 inflation adjustment, the loss table spans thirty
levels and can drive an offense level from a base of 6 or 7 to a staggering 36—fully
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84 percent of the way through the entire sentencing table. At no point did the
Commission justify these increases with data showing that fraud offenders were
more dangerous, more culpable, or less deterred than the Commission had initially
believed. The fraud guideline simply "balloon[ed]" in severity, untethered to any
empirical foundation. Id. at 610.
The result is a guideline that treats economic crimes with a severity reserved
for the most violent offenses. A defendant convicted of fraud involving $25 million
in loss, even with full acceptance of responsibility, reaches offense level 30—the
same level assigned to a defendant who conspires to commit murder, a defendant
who traffics one kilogram of fentanyl while armed, or a defendant who kidnaps a
victim and holds them for more than seven days. A first-time offender convicted of
fraud faces the same Guidelines range as a repeat violent offender or a career drug
trafficker.
This inversion of culpability—where white-collar defendants with no criminal
history and no violence receive sentences indistinguishable from armed criminals
and murderers—is not the product of reasoned policymaking. It is the product of
what Judge Jed Rakoff of the Southern District of New York has called the
Guidelines' "fetish with abstract arithmetic." United States v. Adelson, 441 F. Supp.
2d 506, 509 (S.D.N.Y. 2006).
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Judges across this Circuit have responded with unanimous condemnation. In
Adelson, Judge Rakoff rejected a Guidelines calculation that effectively called for
life imprisonment in a securities fraud case and imposed 42 months instead,
describing "the utter travesty of justice that sometimes results from the guidelines'
fetish with abstract arithmetic, as well as the harm that guideline calculations can
visit on human beings if not cabined by common sense." Id. He concluded that the
fraud guideline's "calculations lead to a result so patently unreasonable as to require
the Court to place greater emphasis on other sentencing factors." Id. at 512. Six years
later, in sentencing Rajat Gupta for insider trading, Judge Rakoff elaborated: the
fraud guidelines "have so run amok that they are patently absurd on their face in
white collar cases," producing "a sentencing disparity of the most unreasonable
kind." United States v. Gupta, 904 F. Supp. 2d 349, 354-55 (S.D.N.Y. 2012).
In June 2017, Stefan Lumiere, a former analyst and portfolio manager,
received an 18-month prison sentence—a cut of more than six years from the non-
binding eight-year Federal Sentencing Guidelines recommendation. A jury
convicted Lumiere of securities fraud, wire fraud, and conspiracy in January for
defrauding investors by over-valuing an investment fund focused on the health-care
sector. At sentencing, U.S. District Judge Jed Rakoff called the recommended
sentence of eight years “ridiculous, absurd, [and] barbaric.” He added, “these
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guideline sentences would be much more typical to a brutal regime than a proud,
American legal system” in stating:
Let me begin on one sort of side note, but I can't help but
noting that this case once again demonstrates the absurdity
of the sentencing guidelines. The sentence is driven
largely by the gain amount, but there are other adjustments
of a more technical nature. And under the adjustments that
the government originally argued for and I think are so
supported by the evidence, the guideline sentence would
have been eight years or more, which is just ridiculous,
absurd, barbaric in some respects in connection with
someone like Mr. Lumiere.
See United States v. Lumiere, Case: 1:16-cr-00483 (JRS) (SDNY June 14, 2017)
attached as Exhibit H at p. SE0155, ¶ 24 – SE0156, ¶ 7.
In 2021, confronting a cannabis-payment fraud prosecution where the
government argued for a loss figure exceeding $150 million, Judge Rakoff found
that there was in fact "no loss whatsoever" and declared at sentencing, “It appears to
me that there's never been a case where the guidelines were more irrational, silly and
ridiculous than in this case.” United States v. Akhavan, No. 20-cr-188 (JSR)
(S.D.N.Y. June 18, 2021); see also LLOYD LIU & HILARY LOCICERO, Cannabis
Fraud Decision Shows Need For Sentencing Reform, Law360 (Oct. 4, 2021)
attached as Exhibit I at p. SE0166.
The Eastern District has been equally emphatic. In United States v. Parris,
573 F. Supp. 2d 744 (E.D.N.Y. 2008), Senior Judge Frederic Block confronted a
securities fraud case in which the Guidelines called for a sentence of 360 months to
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life. He imposed 60 months instead, condemning the Guidelines as "patently absurd"
and "draconian" and holding that fraud sentences driven by mechanical loss
calculations are "a black stain on common sense." Id. at 745, 754.
Judge Block criticized the "piling on" of adjustments that characterize §2B1.1,
observing that the guideline's "one-shoe-fits-all approach" fails to distinguish
between frauds affecting 500 victims and frauds affecting hundreds of thousands of
victims, between defendants who play minor roles and those who orchestrate
massive schemes. Id.
In 2018, Judge Nicholas Garaufis of this Court issued a lengthy written
opinion in United States v. Johnson, excoriating the loss enhancement as producing
sentences that “do not result from any reasoned determination of how the
punishment can best fit the crime, nor any approximation of the moral seriousness
of the crime.” United States v. Johnson, No. 16-cr-457-1 (NGG), 2018 U.S. Dist.
LEXIS 71257, 2018 WL 1997975 (E.D.N.Y. Apr. 27, 2018) at p. 8 of 13. Judge
Garaufis noted that the loss enhancement in that case was responsible for a threefold
increase in the defendant’s offense level and declared: "Given the feeble
underpinnings of the loss enhancement, it is particularly galling that this factor is
often more or less solely responsible for a white-collar offender's Guidelines
sentence.” Id. Judge Garaufis ended strong in stating many in the “legal community
have urged the Sentencing Commission to right this grievous wrong” and in this
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decision Garaufis added his name to the list “of judges, practitioners, scholars, and
other commentators.” Id.
The Second Circuit has provided appellate endorsement for these district court
criticisms. In Corsey, Judge Guido Calabresi wrote in concurrence that the loss-
driven fraud guideline is "fundamentally flawed" and that rigid adherence to the loss
table produces "irrational" and "obviously unreasonable" sentences. United States v.
Corsey, 723 F.3d 366 (2d Cir. 2013). Judge Stefan Underhill, sitting by designation,
added his own concurrence calling the loss guideline "fundamentally flawed,
especially as loss amounts climb," and holding that "district judges can and should
exercise their discretion when deciding whether or not to follow the sentencing
advice that guideline provides." Id. at 379-80.
In Algahaim, the Court recognized that "a major reason why the Guidelines
ranges are so high is the loss enhancement" and explicitly authorized district courts
to "consider whether the significant effect of the loss enhancement overstates the
seriousness of the offense" when imposing sentence. United States v. Algahaim, 842
F.3d 796, 800-01 (2d Cir. 2016). The Second Circuit's holding in Algahaim is
particularly instructive: "Where the Commission has assigned a rather low base
offense level to a crime and then increased it significantly by a loss enhancement,
that combination of circumstances entitles a sentencing judge to consider a non-
Guidelines sentence." Id. at 800.
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Mr. Agnello's case fits Algahaim precisely. His base offense level is 7 (PSR ¶
11). The loss enhancement adds 14 levels (PSR ¶ 12) – a 200 percent increase that
accounts for fully 70 percent of his total offense level before acceptance of
responsibility. The disaster-relief enhancement adds two more levels (PSR ¶13).
These enhancements bear no relationship to Mr. Agnello's actual conduct, his intent,
the sophistication of his scheme, or any other indicator of culpability. They reflect
only the mechanical application of a table that the Second Circuit, the Southern
District, and this Court have uniformly condemned as producing absurd results.
B. THE LOSS ENHANCEMENT FAILS TO MEASURE CULPABILITY AND
PRODUCES SENTENCING DISPARITIES THAT CONGRESS AND THE
COMMISSION SOUGHT TO AVOID
Section 2B1.1's reliance on loss as the predominant sentencing factor rests on
the assumption that larger losses correlate with greater culpability. The assumption
is false. As scholars Barry Boss and Kara Kapp have demonstrated, "the loss
calculation fails to account for the extent to which the offender personally profited
from the offense," and "each offender is responsible for the total reasonably
foreseeable loss attributable to all co-defendants, regardless of how much each
offender personally profited from that amount." BARRY BOSS & KARA KAPP, How
the Economic Loss Guideline Lost its Way, and How to Save It, 18 Ohio St. J. Crim.
L. 605 (2021) attached as Exhibit T at p. SE0398.
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A defendant who conspires to steal $10 million but personally receives
$50,000 faces the same loss enhancement as a defendant who personally pockets the
entire $10 million. A defendant who devises an implausible scheme that causes zero
actual harm but technically "intended" a large loss faces the same enhancement as a
defendant who inflicts catastrophic losses on thousands of victims. Loss, in other
words, is "often a poor indicator of culpability" because it "is a kind of accident"
bearing little relationship to the defendant's mens rea, role in the offense, or moral
blameworthiness.
The disconnect between loss and culpability is particularly stark in COVID-
19 EIDL fraud cases. Congress created the EIDL program as an emergency response
to the pandemic, authorizing the Small Business Administration to disburse loans
rapidly with minimal vetting to prevent economic collapse. (See PSR at ¶ 4). The
SBA abandoned normal underwriting standards, accepted self-certified financial
information, and processed applications within days rather than weeks or months.
The resulting "pay and chase environment," as the SBA Office of Inspector General
later described it, virtually invited fraud.
Defendants like Mr. Agnello—who had no prior criminal history (PSR ¶ 22-
26), operated a legitimate business (PSR ¶ 47-51), and succumbed to the temptation
of easily accessible funds during a national crisis—bear little resemblance to
sophisticated con artists who devise elaborate Ponzi schemes or corporate executives
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who loot their companies over years. Yet the Guidelines treat them identically,
assigning offense levels based solely on the dollar amount of the loss without regard
to the context in which the fraud occurred, the defendant's state of mind, the duration
of the criminal conduct, or the presence of aggravating factors such as targeting
vulnerable victims.
Mr. Agnello's case illustrates the absurdity. The Presentence Investigation
Report documents that:
Between April 4, 2020, and November 5, 2021, the
defendant defrauded the SBA and several financial
institutions administering the EIDL program of federal
COVID-19 relief funds meant for distressed small
businesses. The defendant did this by submitting at least
three online loan applications for EIDL funds on behalf of
Crown [Auto Parts Recycling, LLC]. The loan
applications and certain supporting documentation
contained materially false and fraudulent information,
including the number of Crown's employees, the intended
use of the loan proceeds, and that the defendant did not
have a criminal record (he did, as detailed below in the
Criminal History section of this report). (PSR ¶5).
Its further alleged that he obtained $1.1 million in EIDL loans over an 18-
month period. (Id.). He used $420,000 of the proceeds to invest in cryptocurrency -
a use of funds that, while unauthorized, was not theft for personal enrichment but
rather a form of gambling driven by an addiction to cryptocurrency trading that he
has since treated. (PSR at ¶ 42). The PSR notes that "the defendant began to invest
in cryptocurrency in 2021, and quickly became addicted to it. The addiction was akin
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to a gambling addiction, with the defendant seeing such investment to 'get rich
quick.' Through these investments, some of which were questionable, he was
scammed of hundreds of thousands of dollars, and his commission of the instant
offense was done in part to offset the losses." (See PSR at ¶ 42).
The Government confirmed that "the defendant had repaid some of the EIDL
loans, approximately $200,000, prior to detection of the scheme" (PSR ¶5), reducing
the net loss to $943,300 (id.). He has no history of violence (PSR ¶¶22-29), poses
no danger to the community, and has established a new legitimate business
employing three people and generating $250,000 in annual revenue (PSR ¶47). He
is a first-time offender with a criminal history category of I (PSR ¶26) whose
Guidelines range is driven almost entirely by the size of the loss—a loss that the
SBA has been made whole through restitution (PSR ¶68) and that resulted not from
a calculated scheme to enrich himself but from a series of poor decisions during the
chaos of the pandemic.
The Guidelines assign Mr. Agnello offense level 23 before acceptance of
responsibility (PSR ¶17), placing him in the same category as defendants convicted
of armed robbery, aggravated assault, and drug trafficking conspiracies involving
kilogram quantities of narcotics. This result is not merely disproportionate; it is
irrational. As Judge Garaufis observed in Johnson, the Guidelines "do not ask the
court to consider the duration of the criminal activity, [the defendant's] mens rea, the
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character of the loss, or any other factors that might allow the court to impose a
sentence based on [the defendant's] worth. No, the threefold increase in [the
defendant's] offense level does not come as a result of any of these significantly more
important considerations." United States v. Johnson, No. 16-cr-457-1 (NGG), 2018
U.S. Dist. LEXIS 71257, 2018 WL 1997975 (E.D.N.Y. Apr. 27, 2018) at p. 7 of 13.
The loss enhancement treats all fraud as fungible, ignoring the reality that fraud
offenses vary dramatically in sophistication, intent, harm, and moral culpability.
The Commission's own data confirms that judges nationwide reject the fraud
guideline in the majority of cases. From 2015 through 2019, more than fifty percent
of defendants sentenced under §2B1.1 received below-Guidelines sentences, with
the mean sentence representing a fifty percent decrease from the low end of the
Guidelines range and the median sentence representing a 45 to 50 percent decrease.
BARRY BOSS & KARA KAPP, How the Economic Loss Guideline Lost its Way, and
How to Save It, 18 Ohio St. J. Crim. L. 605 (2021) attached as Exhibit T at p.
SE0402-0403.
These variances are substantially greater than those observed in other
categories of offenses, where sentences average 35 to 37 percent below the
Guidelines. The inescapable conclusion is that §2B1.1 "has never reflected the actual
sentencing practices for non-violent, economic offenses" and "has steadily drifted
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further and further away from the actual sentencing data, until today recommending
a sentence more in line with violent crimes and repeat offenders." Id. at SE0402.
This widespread judicial rejection of the fraud guideline creates the very
sentencing disparities that Congress sought to eliminate through the Sentencing
Reform Act of 1984. Defendants who commit similar frauds receive vastly different
sentences depending on whether their judge mechanically applies the Guidelines or
exercises independent judgment under § 3553(a). As Judge Underhill observed in
Corsey, "sentences in high-loss cases will remain wildly divergent as some district
judges apply the loss guideline unquestioningly while others essentially ignore it."
U.S. v Corsey, 723 F.3d at 377-78. Section 3553(a)(6) directs courts to impose
sentences that "avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct."
Where the Guidelines themselves produce unwarranted disparities—by
assigning identical sentences to defendants whose conduct and culpability differ
dramatically—the Court not only may but must vary to ensure that the sentence
imposed reflects the defendant's individual circumstances.
C. APPLICATION OF THE SECTION 3553(A) FACTORS COMPELS A NON-
CUSTODIAL SENTENCE
Where, as here, the Guidelines produce a patently unreasonable result, the
Court must perform an "individualized application of the statutory sentencing
factors" enumerated in 18 U.S.C. § 3553(a). United States v. Dorvee, 616 F.3d 174,
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184 (2d Cir. 2010). As the Zukerman Court highlighted “the historic role of
sentencing judges . . . [is] the judge's own sense of what is a fair and just sentence
under all the circumstances.” United States v. Zukerman, 897 F.3d 423, 428 (2d Cir.
2018) (quoting United States v. Jones, 460 F.3d 191, 195 (2d Cir. 2006)).
Additionally, “a district court's decision to vary from the Guidelines 'may
attract the greatest respect when the sentencing judge finds a particular case outside
the heartland to which the Commission intends individual Guidelines to apply.” Id.
(quoting Kimbrough v. United States, 552 U.S. 85, 109, 128 S. Ct. 558, 169 L. Ed.
2d 481 (2007)).
The 2025 Amendment underscores the importance of considering the
defendant's unique role in extraordinary situations, such as
While the removal of departures may limit reliance on certain
guideline provisions, courts can still impose a sentence outside the guideline range
as a variance, considering the defendant's critical role in the family member’s
medical care. In light of this, each of the § 3553(a) factors supports a non-custodial
sentence in Mr. Agnello's case.
i. The Nature and Circumstances of the Offense (§ 3553(a)(1))
Mr. Agnello's offense was serious but falls at the lower end of the fraud
spectrum. He did not target vulnerable victims, cause irreparable harm, or devise a
sophisticated scheme. He submitted false loan applications to a government program
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that was deliberately designed for rapid processing with minimal oversight. (PSR at
¶ 3-4). He used a substantial portion of the proceeds not for personal luxuries but for
cryptocurrency investments—a reckless use of funds, to be sure, but one driven by
a gambling addiction rather than calculated greed. (PSR ¶ 42).
The Government confirmed that he "repaid some of the EIDL loans,
approximately $200,000, prior to detection of the scheme," and "the money paid
prior to detection of the scheme is credited against the total loss". (PSR at ¶5). The
SBA has been made whole through restitution. (PSR at ¶68). Contrast this with the
frauds at issue in cases like Parris (pump-and-dump securities scheme targeting
retail investors), Adelson (securities fraud threatening life imprisonment), Gupta
(insider trading by a corporate director), or Johnson (multimillion-dollar foreign
exchange manipulation). Those defendants orchestrated elaborate schemes over
extended periods, occupied positions of trust, and caused harm to identifiable
victims who could not be made whole. Mr. Agnello did none of these things.
ii. The History and Characteristics of the Defendant (§ 3553(a)(1)):
The Presentence Investigation Report documents that Mr. Agnello is 39 years
old (PSR at ¶ 2), has no prior felony convictions (PSR at ¶ 22-26), and has
demonstrated his capacity for rehabilitation. He owns and operates a legitimate
business that employs three people and generates $250,000 in annual revenue. (PSR
¶47).
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The PSR states: "The defendant owns and operates this business, which is an
online seller of automobile parts. He has three employees who are aware he is in
legal trouble but not the full nature of the instant offense. The business has a gross
income of $250,000 per year, on which the defendant personally earns $150,000 per
year" (Id.). He has maintained stable employment throughout his adult life, working
in the scrap metal and auto parts industries (PSR at ¶ 47-51).
The PSR explains:
(PSR at ¶ 41).
.
Through these investments, some of which were questionable, he was
scammed of hundreds of thousands of dollars, and his commission of the instant
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offense was done in part to offset the losses.
." (PSR ¶42).
. He has since ceased all
cryptocurrency activity and
Otherwise, he has strong family ties and is the only
,
He has accepted responsibility for his conduct—receiving a three-level
reduction for acceptance of responsibility (PSR ¶¶18-19)—and expressed genuine
remorse. These characteristics distinguish him sharply from the career criminals and
recidivists with whom the Guidelines would equate him.
iii. The Need for the Sentence to Reflect the Seriousness of the Offense,
Promote Respect for the Law, and Provide Just Punishment (§
3553(a)(2)(A))
A sentence of home confinement for a period equivalent to or longer than the
low end of the Guidelines range, coupled with stringent conditions of supervised
release including electronic monitoring, substantial community service, and full
restitution, adequately reflects the seriousness of Mr. Agnello's conduct.
Just punishment is not synonymous with incarceration; it requires a sanction
proportionate to the defendant's culpability. Public respect for the law is better served
by a sentence that demonstrates the judiciary's commitment to individualized justice
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and proportionality than by a mechanical sentence that treats a first-time offender
convicted of an opportunistic fraud identically to violent criminals. As Judge Block
observed in Parris, imposing a Guidelines sentence where the loss enhancement
produces a "draconian" result would undermine, not promote, respect for the law.
iv. The Need to Afford Adequate Deterrence (§ 3553(a)(2)(B))
Both general and specific deterrence are adequately served by a non-custodial
sentence. Specific deterrence—preventing Mr. Agnello from committing future
crimes—is accomplished through the conviction itself, the conditions of supervised
release, the obligation to pay $943,300 in restitution (PSR at ¶ 68), and the collateral
consequences of a felony conviction that will limit his employment prospects and
professional opportunities for the rest of his life.
(PSR
¶42). He has established a legitimate business (PSR ¶47) and poses minimal risk of
recidivism. General deterrence—sending a message to others who might
contemplate similar conduct—is achieved through the certainty of detection and
punishment, not through severity alone. The federal government has prosecuted
thousands of COVID-19 fraud cases, sending an unmistakable message that
pandemic relief fraud will be detected and punished. Adding months or years of
incarceration to Mr. Agnello's sentence will not materially increase the deterrent
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effect; it will simply impose gratuitous suffering on him and his family without
advancing any legitimate penological purpose.
v. The Need to Protect the Public (§ 3553(a)(2)(C))
Mr. Agnello poses no danger to public safety. His offense was financial in
nature, involved no violence or threats, and targeted no vulnerable individuals. He
has no history of violent crime. (PSR ¶¶22-29). A sentence of home confinement
with electronic monitoring and supervised release conditions adequately protects the
public from any conceivable risk of future criminal conduct.
vi. The Need to Provide Effective Treatment (§ 3553(a)(2)(D))
As discussed in Point II, supra, Mr. Agnello requires ongoing
He will also require
specialized post-surgical care following his kidney donation to his mother.
A non-custodial sentence enables him to continue his ,
Section 3553(a)(2)(D) mandates that the
Court provide needed medical care "in the most effective manner." A sentence that
forecloses access to necessary treatment plainly violates this directive.
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vii. The Need to Avoid Unwarranted Sentence Disparities (§ 3553(a)(6))
The fraud guideline itself creates unwarranted disparities by treating all frauds
identically regardless of context, culpability, or harm. Nationwide data shows that
the median defendant sentenced under §2B1.1 receives a sentence 45 to 50 percent
below the Guidelines. Imposing a Guidelines sentence on Mr. Agnello would create
a disparity between him and the majority of similarly situated defendants. Moreover,
COVID-19 EIDL fraud cases have resulted in widely varying sentences, with many
first-time offenders receiving probation or short terms of home confinement.
A sentence that reflects Mr. Agnello's individual circumstances—his lack of
criminal history (PSR at ¶ 26), his mental health issues (PSR at ¶ 41-42), his family
responsibilities, his acceptance of responsibility (PSR at ¶ 18-19)—promotes
uniformity by ensuring that defendants with similar backgrounds and conduct
receive similar treatment.
POINT FOUR:
THE SERIOUSNESS OF THE OFFENSE, RESPECT FOR THE
LAW, AND JUST PUNISHMENT SUPPORT A NON-CUSTODIAL
SENTENCE
A non-custodial sentence consisting of home confinement for a period at or
exceeding the low end of the Guidelines range, coupled with stringent conditions of
supervised release, electronic monitoring, substantial community service, and full
restitution, is both appropriate and sufficient to reflect the seriousness of the offense
for which Mr. Agnello was convicted and to promote respect for the law and provide
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just punishment. In fact, a sentence of lengthy incarceration may work to undercut
respect for the law rather than promote it when such a sentence is divorced from the
defendant's actual culpability and the circumstances of the offense.
As the Supreme Court explained in Gall v. United States, 552 U.S. 38, 54
(2007), "a sentence of imprisonment may work to promote not respect, but derision,
of the law if the law is viewed as merely a means to dispense harsh punishment
without taking into account the real conduct and circumstances involved in
sentencing." When a sentencing court imposes a Guidelines sentence driven almost
entirely by a mechanical loss calculation that ignores every meaningful indicator of
culpability—as in Mr. Agnello's case, where 70 percent of his offense level derives
from a 14-level loss enhancement applied to a base offense level of 7—the Court
risks precisely the result that Justice Kennedy warned against: the public's perception
of the law as an instrument of harsh, arbitrary punishment rather than reasoned
justice.
A. THE NATURE AND SERIOUSNESS OF MR. AGNELLO'S OFFENSE DOES
NOT REQUIRE INCARCERATION
Mr. Agnello's offense was serious and warrants substantial punishment. He
submitted fraudulent loan applications to a federal disaster relief program during a
national crisis, deceiving both the Small Business Administration and financial
institutions administering the EIDL program. The offense violated the public trust
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and diverted funds meant for distressed businesses during an unprecedented
economic emergency. See PSR ¶5 (describing offense conduct between April 4,
2020, and November 5, 2021). These facts establish that the offense is serious and
demands meaningful consequences.
However, the seriousness of an offense is not measured by loss amount alone.
The Second Circuit has recognized in Algahaim, that loss “is only one relevant
factor, and in some cases may be less probative of the seriousness of the offense than
other factors such as the defendant's role, the defendant's mens rea, the sophistication
of the scheme, and the presence of victim harm.” United States v. Algahaim, 842
F.3d 796, 800 (2d Cir. 2016). Mr. Agnello's offense, while serious, falls at the lower
end of the fraud spectrum when measured against these holistic factors.
Mr. Agnello did not devise a sophisticated multi-year scheme. His offense
occurred over an 18-month period in the context of a deliberately rapid, minimally-
vetted federal relief program designed to disburse funds quickly to prevent economic
collapse. See PSR at ¶3-4 (describing CARES Act EIDL program structure: "The
SBA abandoned normal underwriting standards, accepted self-certified financial
information, and processed applications within days rather than weeks or months.").
The SBA Office of Inspector General characterized the resulting environment as a
"pay and chase environment" that "virtually invited fraud." As documented in the
PSR, the fraud "was detected through the normal vetting process, as the large sum
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was suspicious in and of itself." PSR at ¶ 5. There was no elaborate concealment
scheme; fraud was discovered through routine post-disbursement verification.
Mr. Agnello did not occupy a position of trust or exploit a vulnerable victim.
He did not pose as a financial advisor, accountant, or fiduciary and exploit personal
relationships or professional trust. He did not target elderly or disabled individuals
incapable of protecting themselves. The victim was a federal agency with vast
resources and the capacity to recover losses—and it has been made whole through
Mr. Agnello's agreement to pay $943,300 in restitution. See PSR at ¶ 68.
Mr. Agnello's mens rea was not calculated greed. The PSR documents that
"the defendant began to invest in cryptocurrency in 2021, and quickly became
addicted to it. The addiction was akin to a gambling addiction, with the defendant
seeing such investment to 'get rich quick.' Through these investments, some of which
were questionable, he was scammed of hundreds of thousands of dollars, and his
commission of the instant offense was done in part to offset the losses." PSR at ¶ 42.
Mr. Agnello's motivation was not the calculated enrichment of a career fraudster but
rather the desperate attempt of a gambling-addicted individual to recover losses
during a period of personal crisis. This is not a case of premeditated theft; it is a case
of opportunistic fraud driven by addiction during a national emergency.
Mr. Agnello repaid a substantial portion of the funds before detection. The
PSR confirms that "the Government informed that the defendant had repaid some of
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the EIDL loans, approximately $200,000, prior to detection of the scheme." PSR at
¶ 5. This repayment—whether motivated by recognition of wrongdoing, changing
circumstances, or other factors—demonstrates that Mr. Agnello did not intend to
retain all the funds and constitute recognition that the conduct was improper. Under
USSG §2B1.1, Application Note 3(D)(i), money repaid prior to detection is credited
against total loss.
Mr. Agnello is a first-time offender with no history of violence or prior federal
crimes. The PSR documents a criminal history score of one, establishing a criminal
history category of I. PSR at ¶ 22-26. His only prior convictions are minor violations:
a 2009 disorderly conduct charge (possession of a gravity knife as a passenger in a
vehicle) and a 2018 misdemeanor for operating an unregistered scrap business. Id.
He has no history of violence, no history of targeting vulnerable individuals, and no
pattern of criminal behavior.
Contrast these facts with the securities and forex frauds committed by
defendants in the cases cited throughout this memorandum. In Parris, Judge Block
confronted a pump-and-dump scheme targeting retail investors—a systematic
manipulation designed to enrich fraudsters at the expense of specific identifiable
victims. In Adelson, the defendant orchestrated a sophisticated securities fraud
threatening life imprisonment. In Gupta, an insider trader breached fiduciary duties
by trading on confidential corporate information. In Johnson, a senior HSBC
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executive manipulated foreign exchange rates affecting currency markets globally.
These were schemes of genuine sophistication and culpability. Mr. Agnello's offense
simply does not belong in that category.
B. A NON-CUSTODIAL SENTENCE ADEQUATELY REFLECTS THE
SERIOUSNESS OF THE OFFENSE
A sentence of home confinement for a period at or exceeding the low end of
the Guidelines range (33 months) would constitute substantial punishment reflecting
the seriousness of Mr. Agnello's offense. Such a sentence would impose significant
restrictions on liberty. Whereas, home confinement with electronic monitoring and
supervised release for a multi-year term imposes severe restrictions on personal
freedom. Mr. Agnello would be confined to his residence except for approved
activities (work, medical appointments, legal proceedings, and supervised
community service). Electronic monitoring would track his movements and provide
real-time accountability. He would be subject to random searches and unannounced
visits by probation officers. These restrictions represent a substantial deprivation of
liberty short of incarceration.
Impose financial consequences. Mr. Agnello has agreed to pay $943,300, now
plus interest, in restitution to the SBA. PSR ¶ 68. The PSR documents that "based
on the defendant's financial profile, taking the priority of mandatory restitution into
account, he appears unable to pay a fine." PSR ¶ 57. Nonetheless, Mr. Agnello's
obligation to make full restitution will constrain his finances and earning capacity
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for years to come. Every dollar he earns will be directed first to compensating the
victim. This financial punishment is both substantial and appropriately tailored to
the nature of the offense—a fraud case where restitution to the victim is the most
meaningful form of accountability.
Additionally, sentencing can impose employment and professional
limitations. A felony conviction for wire fraud carries substantial collateral
consequences. Mr. Agnello will face limitations on employment opportunities,
professional licensing, and business activities. His conviction will appear on
background checks viewed by employers, business partners, lenders, and regulatory
agencies. These consequences are severe and permanent—consequences that will
constrain Mr. Agnello's opportunities and earnings for the remainder of his life.
Require ongoing mental health treatment and monitoring. As a condition of
supervised release, Mr. Agnello would be required to "undergo an evaluation, and
if deemed necessary, participate in a mental health treatment program... approved
by the U.S. Probation Office" and to "contribute to the costs of such treatment."
PSR ¶74. This requirement ensures that Mr. Agnello receives the psychiatric care
he requires while remaining under judicial supervision and subject to modification
of his sentence if he fails to comply.
Sentencing can also require substantial community service. A requirement for
substantial community service—perhaps 500-1000 hours performed in a visible
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capacity—would ensure that Mr. Agnello contributes meaningfully to his
community and bears the burden of his wrongdoing in a way that benefits society.
Collectively, these elements—home confinement, electronic monitoring,
supervised release, restitution, collateral consequences, mental health treatment, and
community service—constitute punishment that is both substantial and
appropriately proportionate to Mr. Agnello's offense. As the Supreme Court noted
in Gall, the question is not whether the sentence is harsh, but whether it is "sufficient,
but not greater than necessary, to comply with the purposes set forth in § 3553(a)."
A non-custodial sentence meets that standard.
C. INCARCERATION WOULD UNDERMINE, NOT PROMOTE, RESPECT FOR
THE LAW
Justice Kennedy's warning in Gall is particularly acute in this case. When a
sentencing court imposes a Guidelines sentence driven by a guideline that judges
across three circuits have condemned as "patently absurd," "irrational, silly and
ridiculous," and "a black stain on common sense," the court risks precisely the
outcome the Supreme Court cautioned against: public perception of the law as
arbitrary and harsh rather than reasoned and just.
The fraud guideline has been rejected by judges nationwide: from 2015
through 2019, more than fifty percent of defendants sentenced under §2B1.1
received below-Guidelines sentences. By 2023, the mean downward variance for
fraud offenders had increased to 58 percent—substantially greater than the 35-37
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percent variance observed in other offense categories. This widespread rejection is
not mere leniency; it reflects judicial consensus that the guideline produces results
divorced from culpability and fairness.
Public respect for the law depends on the perception that sentences are just,
proportionate, and tailored to individual circumstances. When the public observes
that a first-time offender with no criminal history, no violence, and a gambling
addiction receives the same Guidelines sentence as a violent career offender or drug
trafficker, the law appears not as an instrument of justice but as an instrument of
mechanical, arbitrary punishment. This perception corrodes respect for the law and
the legal system.
Moreover, in Mr. Agnello's case, incarceration would impose irreversible
harm on an innocent third party—his mother—by foreclosing the only viable path
to preserving her life through kidney transplantation. No legitimate legal interest is
served by a sentence that effectively sentences an innocent person to death. To the
contrary, imposing such a sentence would undermine public confidence in a legal
system perceived as prioritizing mechanical adherence to guidelines over human
compassion and proportionality.
D. DETERRENCE DOES NOT JUSTIFY INCARCERATION IN THIS CASE
Both general and specific deterrence are fully achieved through a non
custodial sentence in this case.
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i. Specific Deterrence
Specific deterrence—preventing Mr. Agnello from committing future
crimes—is accomplished through multiple mechanisms absent incarceration:
a. The conviction itself and the admission of guilt in a federal
court;
b. The supervisory apparatus: supervised release, probation
officer oversight, and electronic monitoring;
c. The financial burden: $943,300 in restitution obligation will
constrain Mr. Agnello's finances and earning capacity;
d. The collateral consequences: permanent employment
limitations, background check disclosures, professional
licensing restrictions; and
e. The mandatory mental health treatment addressing the
gambling addiction that contributed to the offense.
The PSR documents Mr. Agnello's existing commitment to rehabilitation: "the
defendant began to invest in cryptocurrency in 2021, and quickly became addicted
to it... As such, his instant arrest resulted in his quitting cryptocurrency investment
and seeking treatment. The defendant occupies himself with work and hobbies to
avoid temptation." PSR ¶42. Mr. Agnello "has established a new legitimate business
employing three people." PSR ¶47. He has accepted responsibility and expressed
genuine remorse. PSR ¶¶18-19.
The likelihood that Mr. Agnello will reoffend is minimal. A first-time
offender with stable employment, a legitimate business, family ties, and
demonstrated commitment to addressing his underlying addiction presents minimal
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risk of recidivism. The presence of electronic monitoring and probation supervision
further reduces any conceivable risk.
ii. General Deterrence
General deterrence—sending a message to the public that certain crimes will
be detected and punished—is achieved through the certainty of detection and
punishment, not solely through sentence severity.
The certainty of detection and punishment is high in COVID-19 EIDL fraud
cases. The federal government has prosecuted thousands of pandemic relief fraud
cases with high conviction rates. Public awareness of these prosecutions—through
news coverage, social media, and word of mouth—sends a powerful message that
pandemic relief fraud will be investigated, prosecuted, and punished. Mr. Agnello's
public prosecution and conviction add to this message. The fact that the government
obtained his guilty plea, the public nature of the sentencing proceeding, and the
visibility of his case all contribute to general deterrence.
Empirical research shows no relationship between sentence length and
deterrence. In a pre-Guideline study of specific deterrence, no difference in
deterrence was found as a result of sentence severity, including between probation
and imprisonment. See ANDREW VON HIRSCH, et al., Criminal Deterrence and
Sentence Severity: An Analysis of Recent Research (1999) attached as Exhibit W
(concluding “correlations between sentence severity and crime rates . . . were not
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sufficient to achieve statistical significance,” and that “the studies reviewed do not
provide a basis for inferring that increasing the severity of sentences generally is
capable of enhancing deterrent effects.”).
Another great theory on deterrence is on a “positive association between
actual and perceived punishment levels” because “[t]here is generally no significant
association between perceptions of punishment levels and actual levels . . . implying
that increases in punishment levels do not routinely reduce crime through general
deterrence mechanisms.” GARY KLECK ET AL., The Missing Link in General
Deterrence Theory, 43 Criminology 623 (2005) attached as Exhibit X.
The certainty of punishment is far more deterring than severity. A potential
fraudster is more effectively deterred by knowledge that the crime will be detected
and he will be prosecuted and convicted—regardless of sentence length—than by
knowledge that if he commits the crime, he might receive a lengthy sentence. Under
this empirical framework, Mr. Agnello's public conviction and the government's
vigorous prosecution of thousands of similar cases sends a powerful deterrent
message. The addition of years of incarceration adds minimal, if any, additional
deterrent value.
Over-emphasis on general deterrence as a justification for harsh punishment
poses fundamental ethical problems. As the philosopher Immanuel Kant observed,
punishment "can never be inflicted merely as a means to promote some other good
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for the criminal himself or for civil society. It must always be inflicted upon him
only because he has committed a crime." IMMANUEL KANT, The Metaphysics of
Morals (1797). This principle—that individuals must not be treated merely as
instruments to advance societal goals—applies with particular force in sentencing,
where the temptation to impose harsh punishment on one defendant to deter others
conflicts with fundamental principles of individual justice. It is ethically
impermissible to punish Mr. Agnello with lengthy incarceration solely to deter
unknown third parties from committing similar offenses, particularly when
proportionality and the statutory sentencing factors do not independently justify that
severity.
Punishing Mr. Agnello with lengthy incarceration solely to deter unknown
third parties from committing similar offenses treats Mr. Agnello merely as a means
to an end—a human instrument to be sacrificed for the greater social good. This
approach conflicts with fundamental principles of individual justice and human
dignity. It is ethically impermissible to impose harsh punishment on one individual
for the sake of deterring others, particularly when proportionality and the statutory
sentencing factors do not independently justify that severity.
E. REHABILITATION AND FORWARD-LOOKING CONSIDERATIONS
Mr. Agnello presents an extraordinary opportunity for successful
rehabilitation and reintegration. At age 39, with his criminal history limited to minor
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violations and having demonstrated commitment to establishing a legitimate
business and addressing his underlying addiction, Mr. Agnello is precisely the type
of defendant for whom a sentence focused on rehabilitation and reintegration serves
the purposes of sentencing more effectively than lengthy incarceration.
The PSR documents his genuine efforts at rehabilitation:
a. He operates a legitimate business generating $250,000 in annual
revenue and employing three people. PSR ¶ 47.
b. He discontinued cryptocurrency trading immediately upon arrest.
PSR ¶ 42.
c. He engaged in mental health treatment with Dr. Zlatin Ivanov,
whom he sees monthly and has found beneficial. PSR ¶ 41.
d. He maintains close family relationships and has remarried,
providing support to his family. PSR ¶ 32.
e. He accepted responsibility through a guilty plea, receiving a three-
level reduction. PSR ¶ 18-19.
A sentence that allows Mr. Agnello to continue his employment, maintain his
business, receive ongoing mental health treatment, and remain engaged with his
family provides substantially greater potential for long-term rehabilitation and
successful reintegration into society than does incarceration, which would destroy
his business, sever his employment, and isolate him from his support network.
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POINT FIVE:
MR. AGNELLO’S COMMITMENT TO OTHERS, AS SHOWN BY
HIS MENTORSHIP OF KYRIE DAVIS AND THE TESTIMONY
OF HIS MOTHER, WARRANTS MERCY UNDER 18 U.S.C. §
3553(a)(1)
Section 3553(a)(1) directs the Court to consider individualized assessment
through the history and characteristics of the person to be sentenced. The record here
shows that Carmine Agnello’s life has been marked far more by love, sacrifice, and
service than by the financial lapse that brings him before the Court. The letters from
his mother, Victoria Gotti, and from eight-year-old Kyrie Davis portray a son and
mentor whose daily conduct is fundamentally inconsistent with the image of a
calculating fraudster. (See Kyrie Davis Letter attached as Exhibit B at p. SE0008).
Federal courts have repeatedly recognized that § 3553(a)(1) requires a “whole
person” judgment that takes account of a defendant’s “good deeds” as well as his
offense conduct, and that character letters are an appropriate basis for a variance.
See, e.g., United States v. Adelson, 441 F. Supp. 2d 506, 513–15 (S.D.N.Y. 2006)
(emphasizing the need to consider the defendant’s life as a whole, including his
kindness and generosity, and criticizing a mechanical application of the fraud
guideline); United States v. Cavera, 550 F.3d 180, 189–92 (2d Cir. 2008) (en banc)
(authorizing variances based on individualized assessment of the § 3553(a) factors).
The policy reason is straightforward: a defendant who has consistently invested
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himself in others, and who inspires loyalty from those he has helped, is both more
likely to be rehabilitated and more valuable to the community outside prison walls.
Victoria’s letter recounts that Carmine entered life fighting for his own
survival: born seven weeks premature at four pounds, with legal blindness in one
eye, a broken leg, a severely clubbed foot, impaired liver function, and a leaking
mitral valve that produced an audible gallop. At age three he nearly died from sepsis;
where his mother spent the night in his hospital crib praying not to lose a second
child. From that ordeal, she watched a gentle boy emerge whom teachers called “the
perfect child” and “the peacemaker,” the one who calmed other students and found
middle ground during arguments. (See SE 0006). When she was later diagnosed with
kidney disease, Carmine immediately phoned her doctor and volunteered one of his
kidneys, years before transplantation became imminent—an unsolicited offer the
doctor called “beautiful” and proof that she had “a special kid there.” (See Victoria
Gotti Letter attached as Exhibit A at p. SE0004).
The same instinct to protect and nurture others led Carmine into the life of
eight-year-old Kyrie Davis. Kyrie lives in Harlem; his father is a hardworking man
who simply cannot spare weekend hours for youth sports. According to Kyrie’s letter
and the accompanying pages, Carmine met him through a mentor–big-brother
program connected to school parents. After Kyrie asked if he would come to one
game, Carmine began picking him up every Saturday at 9:30 a.m., driving him to
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the fields, practicing with him for an hour before each game, staying to watch, and
then taking him for ice cream so they could talk about school, friends, and how to
get along with classmates. (See Kyrie Davis Letter attached as Exhibit B at p.0008).
Kyrie explains that his father “works hard and doesn’t have the time to take
me places,” but that Uncle Carmine “takes time out of his busy life to spend time
with me,” and that he loves their talks about “how important school is.” (See SE
0011). He ends with a plea that is as simple as it is powerful: “I would miss him very
much if he could no longer spend time with me. I love him very very much.” (See
SE 0012).
Social-science research confirms what these letters already show: sustained,
one-to-one mentoring relationships of the kind Carmine has built with Kyrie can
significantly improve outcomes for at-risk youth, including better school
engagement and reduced likelihood of delinquent behavior. Studies of
community-based mentoring programs such as Big Brothers Big Sisters, including
randomized evaluations published and summarized in recent years, consistently find
that youth with stable mentors are less likely to be arrested and more likely to adopt
prosocial behaviors than similarly situated peers without mentors.
Scholars have also cautioned that when a close mentoring relationship is
suddenly and involuntarily severed, vulnerable youth can experience declines in
self-esteem and increases in acting-out behavior, particularly if they have prior
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experiences of instability or absence of caregivers. While no study can predict
exactly how one child will react, it is more than reasonable to fear that Kyrie—an
eight-year-old who has finally found a man who shows up for him every weekend—
would experience Carmine’s disappearance as a deep personal loss.
Victoria’s letter makes clear that Kyrie is not alone. She describes Carmine as
someone who “mentors young men who do not have a hands on dad,” and as a man
who “does much much more good living his life helping others … financially,
emotionally and compassionately.” (See Victoria Gotti Letter attached as Exhibit A
at p. SE0005).
She insists that he “doesn’t have a violent, mean bone in his body or mind.”
She also details how, when this case came to light, Carmine immediately sold the
home he had painstakingly renovated “brick by brick” and used the proceeds to repay
what he owed, staying more than a year ahead on his loan, without asking his mother
or anyone else to rescue him. Even as she is “actively on the transplant list” and
awaiting testing to confirm Carmine as an , she has
“willingly become a recluse” under the weight of her illness and his prosecution,
terrified that the son who is now literally needed to keep her alive will be taken from
her. (Id.).
None of this minimizes the seriousness of the offense, and even Victoria
characterizes his conduct as “pure stupidity” for which he feels deep remorse. But
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sentencing under § 3553(a) is meant to reflect the reality that human beings are more
than the worst things they have done. Here, the reality is that Carmine is a man who
is stepping forward to donate a kidney to his mother; who has become the central
male figure in an eight-year-old boy’s life; who has repaid what he owes at great
personal cost; and who has consistently used his time and resources to support
people more vulnerable than himself.
A term of home confinement with stringent supervision, restitution, and a
structured requirement that he continue formalized mentoring and community
service would still punish Carmine and deter others. But it would also preserve the
fragile, life-saving relationships that depend on his presence: a gravely ill mother
waiting for her son’s kidney, and a little boy in Harlem who has come to believe, for
perhaps the first time, that a grown man will keep his word to him. Under §
3553(a)(1), and in light of Adelson and Cavera, the Court is fully authorized to
recognize that reality and to fashion a non-custodial sentence that reflects who
Carmine Gotti Agnello truly is.
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V. CONCLUSION AND SENTENCING
RECOMMENDATION
For the reasons set forth above, it is respectfully prayed that this Court impose
upon Carmine Agnello, a non-incarceratory, probation sentence through
implementation of the PSR recommended sentence and commensurate with this
variances set forth in this sentencing application.
Steven A. Metcalf, Esq.
____________________
STEVEN A. METCALF II, ESQ.
Metcalf & Metcalf, P.C.
99 Park Avenue, Suite 810
New York, NY 10016
Office 646.253.0514
Fax 646.219.2012
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the instant sentencing materials was
served via ECF this ____th day of February, 2026 on all counsel of record.
/s/ Steven A. Metcalf II
STEVEN A. METCALF II, ESQ.
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