Government's Sentencing Memorandum — United States v. Elisa Rivera (Southern District of Florida, Document 20)

Summary

Government's Sentencing Memorandum entered May 4, 2022, in United States of America v. Elisa Rivera, Case No. 22-20028-Cr-GRAHAM, Southern District of Florida. It states that a family member submitted an Economic Injury Disaster Loan application to the SBA on her behalf, and that the SBA sent a $10,000 advance and a $61,300 low interest loan. It states that she pled guilty on February 24, 2022, to a one-count Information charging conspiracy to commit wire fraud. It agrees that the advisory Guidelines range is 12-18 months and asks for 12 months, with 6 months in imprisonment and 6 months in home detention. It is signed s/Edward N. Stamm, Assistant United States Attorney.

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Case 1:22-cr-20028-DLG Document 20 Entered on FLSD Docket 05/04/2022 Page 1 of 7




                           UNITED STATES DISTRICT COURT
                           SOUTHERN DISTRICT OF FLORIDA

                             Case No. 22-20028-Cr-GRAHAM


  UNITED STATES OF AMERICA

  v.

  ELISA RIVERA

                  Defendant.
  _________________________________/

                    GOVERNMENT’S SENTENCING MEMORANDUM

        COMES NOW the United States, by and through the undersigned Assistant United

  States Attorney, and files this Sentencing Memorandum, stating as follows:

        Factual Background and Procedural History

        On or about July 3, 2020, a family member of the defendant, with the defendant’s

  knowledge and agreement, submitted on behalf of the defendant an online application

  containing materially false information to the Small Business Administration (“SBA”)

  seeking an Economic Injury Disaster Loan (“EIDL”) claiming that a small business the

  defendant owned and operated had been significantly impacted by the COVID-19

  pandemic.    Based on that false and fraudulent application, which claimed that the

  defendant’s business had 12 employees and over $325,000 in gross revenues in 2019,

  the SBA sent the defendant a $10,000 advance that did not need to be repaid and a

  $61,300 low interest loan (DE: 9 at 3-4; DE: 18 at ¶¶ 20, 21). In actuality, the defendant

  did not own or operate any type of small business.        Instead, at all relevant times,

  including 2019 and 2020, the defendant was a full-time civilian employee of the Miami-

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  Dade Police Department (“MDPD”) who suffered no loss of salary due to the COVID-19

  pandemic (DE: 9 at 1; DE: 18 at ¶¶ 21, 80).

        In addition to obtaining money from the SBA for herself through a fraudulent

  application for COVID relief, the defendant offered to and did submit knowingly false and

  fraudulent EIDL applications to the SBA on behalf of nine other individuals, including

  family members and friends, none of whom owned or operated businesses or were

  otherwise qualified for these advances or loans.      In exchange for submitting these

  fraudulent applications for the $10,000 advances that did not need to be repaid, the

  defendant charged applicants a fee of up to $1,000 (DE: 9 at 4-5; DE: 18 at ¶¶ 22 - 24).

        When the fraudulent nature of her activities was discovered by law enforcement,

  the defendant was contacted and she voluntarily met with federal law enforcement agents

  and gave a statement, admitting her criminal activity in fraudulently obtaining her own

  EIDL advance and loan and knowingly submitting false and fraudulent EIDL applications

  on behalf of others. Shortly thereafter, the defendant retained counsel and expressed

  her desire to resolve the matter by accepting responsibility, waiving indictment, and

  pleading guilty to an Information. Following through on this stated intention, on February

  24, 2022, the defendant pled guilty to a one-count Information (DE: 1) charging her with

  conspiracy to commit wire fraud, in violation of 18 U.S.C. §371 (DE: 7, 8).

        The Advisory Sentencing Guidelines Range

        Under the current post-Booker sentencing regime, this Court is required to first

  compute an advisory Guidelines range, before it applies the 18 U.S.C. '3553(a) factors

  to determine the defendant=s ultimate sentence. See United States v. Crawford, 407

  F.3d 1174, 1178 (11th Cir. 2005). The government agrees with the defendant that the

  Presentence Investigation Report (“PSR”) has correctly computed the Total Offense Level
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  to be level 13 (DE: 18 at ¶ 44), with the defendant being in Criminal History Category I

  (DE: 18 at ¶ 47), leading to an advisory Guidelines Zone C sentencing range of 12-18

  months (DE: 18 at ¶ 95). Accordingly, the government requests that the Court find the

  defendant’s advisory Guidelines range to be 12-18 months imprisonment.

         The §3553(a) Factors and Defendant’s Request for a Downward Variance

         The defendant has now filed a Sentencing Memorandum asking this Court to vary

  downward and impose a non-prison sentence (DE: 19 at 1, 3). For the reasons that will

  be explained below, the government opposes this request, and instead asks that this

  Court impose a sentence at the low end of the advisory Guidelines range: 12 months

  imprisonment, with 6 months to be served in imprisonment and the remaining 6 months

  to be served in home detention, as allowed by USSG §5C1.1(d)(2).

         Once the Court has determined the advisory Guidelines sentencing range, the next

  step is to consider the '3553(a) factors in determining and imposing a reasonable

  sentence.    Although the Court may not simply presume that a sentence within the

  advisory Guidelines range is reasonable, the Supreme Court has reaffirmed the fact that

  “the Guidelines are to be the sentencing court’s ‘starting point and . . . initial benchmark’”

  and that sentencing courts “’must begin their analysis with the Guidelines and remain

  cognizant of them throughout the sentencing process’”            Molina-Martinez v. United

  States, 136 S.Ct. 1338, 1345 (2016) (citation omitted; emphasis in original).

         Pursuant to §3553(a), the relevant factors to be considered in imposing a sentence

  are: (1) the nature and circumstances of the offense and the history and characteristics

  of the defendant; (2) the need for the sentence imposed to (A) reflect the seriousness of

  the offense, promote respect for the law, and provide just punishment for the offense, (B)

  afford adequate deterrence to criminal conduct, (C) protect the public from further crimes
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  by the defendant, and (D) provide the defendant with needed educational or vocational

  training, medical care, or other correctional treatment in the most effective manner; (3)

  the types of sentences available; (4, 5) the advisory Guidelines sentencing range and any

  relevant policy statements; (6) the need to avoid unwarranted sentencing disparity; and

  (7) the need to provide restitution.

                Section 3553(a)(1) – The Nature of Defendant’s Offense

         The first part of §3553(a)(1) focuses on the nature and circumstances of the

  offense committed. As set out in the Information (DE: 1), Stipulated Factual Basis (DE:

  9), and PSR (DE: 19), the defendant defrauded the SBA out of COVID-19 relief funds

  intended to assist small business owners trying to deal with the financial hardships and

  business disruptions caused by the pandemic. Defrauding the government out of funds

  intended to help struggling small business owners is a serious offense, particularly since

  the defendant was a full-time MDPD employee whose income was not affected by the

  pandemic and who was not suffering from any pandemic-related financial hardship.

         The seriousness of the defendant’s criminal conduct is enhanced by the fact that

  she not only obtained her own fraudulent loan, but she also knowingly submitted

  fraudulent applications for other individuals who did not qualify, including her family

  members and friends. Moreover, she profited from the fees she collected for submitting

  these fraudulent applications. In addition, the fact that the defendant was a long-time

  employee of the MDPD, albeit a civilian employee and not a sworn officer, is another

  factor that adds to the seriousness of the offense since she was part of an organization

  whose mission is to help enforce the law to protect and serve the community.

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               Section 3553(a)(1) – The Defendant’s History and Characteristics

        The second part of §3553(a)(1) focuses on the history and characteristics of the

  defendant. As reflected in the very thorough PSR (DE: 18 at ¶¶ 45-69) and in the

  defendant’s Sentencing Memorandum, (DE: 19 at 2), the defendant, despite difficult

  family and domestic situations, has been a productive law-abiding citizen who essentially

  raised two children on her own. In addition, the defendant was a productive employee

  of the MDPD who during her 25-year tenure worked her way up from office assistant to

  secretary and finally to administrative assistant in the Records Department, the position

  she held at the time of her criminal activity and her subsequent resignation in January

  2022 (DE: 18 at ¶ 80).

        While the defendant’s long career with MDPD and her law-abiding life do not

  excuse her serious crime, they are meaningful factors to consider in setting the ultimate

  sentence. Similarly, it should be a factor in the defendant’s favor that she voluntary met

  with the agents, admitted her wrongdoing, and then almost immediately retained counsel

  and expeditiously resolved this matter by pleading guilty to an Information.

               Section 3553(a)(2)

        Section 3553(a)(2) is geared to ensuring that the sentence imposed serves the

  various purposes stated in subparts (A) – (D). Here, the recommendation of 6 months

  imprisonment combined with another 6 months of home confinement, followed by a term

  of supervised release, for an otherwise law-abiding 50-year individual who immediately

  acknowledged her crime and quickly pled guilty sends a strong message that fraud of this

  type will not be tolerated, thereby deterring others from engaging in this conduct. Since

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  this criminal episode appears to be out of character for the defendant, the government

  also believes that this recommended punishment is sufficient to protect the public from

  the seemingly unlikely chance of future crimes by the defendant.

               Section 3553(a)(3), (a)(4), (a)(5)

        These subsections of §3553(a) require consideration of the types of sentences

  available, the advisory Guidelines sentencing range, and any relevant policy statements

  in determining the final sentence.     The PSR lays out the advisory Guidelines and

  sentencing options in clear and concise terms, noting that the defendant is in Zone C,

  allowing for the recommended “split” sentence of six months in imprisonment and six

  months in home detention or a community control setting, either of which would allow the

  defendant to obtain and maintain employment, allowing her to once again be a productive

  member of the community (DE: 18 at ¶ 95).

               Section 3553(a)(6), (a)(7)

        These sub-sections focus on avoiding sentencing disparity and ensuring restitution

  is made.   The defendant has agreed to forfeit the proceeds of her criminal activity

  through the entry of a forfeiture money judgment (DE: 9 at ¶ 8) and has acknowledged

  that restitution will be imposed as part of her sentence (DE: 9 at ¶¶ 9-11).        As for

  sentencing disparity, the government is not aware of any cases involving similarly situated

  defendants and crimes that would indicate that the recommended sentence in this case

  would cause unwarranted sentencing disparity.

        Conclusion

        After consideration of all the relevant advisory Guidelines and statutory factors

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  within all the facts and circumstances of the offense and offender in this case, it is the

  government’s position that the Court should deny the defendant’s variance request and

  should sentence the defendant at the low end of the advisory Guideline range of 12-18

  months incarceration. The government further respectfully suggests that the reasonable

  and necessary sentence to provide just punishment and protect the public would be a

  period of incarceration of 12 months, with six months served in imprisonment and six

  months served in home confinement or community control, as allowed for by USSG

  §5C1.1(d)(2).

        WHEREFORE, the government respectfully requests, for the reasons set out

  herein and to be presented at the sentencing hearing, that this Court sentence the

  defendant to a term of incarceration of 12 months, with six months served in imprisonment

  and six months served in home detention, to be followed by a term of supervised release.

  The government also requests that the defendant be ordered to make full restitution and

  to pay the mandatory $100 special assessment.

                                                  Respectfully submitted,

                                                  JUAN ANTONIO GONZALEZ
                                                  UNITED STATES ATTORNEY

                                           By:    s/Edward N. Stamm
                                                  Edward N. Stamm (FL Bar #373826)
                                                  Assistant United States Attorney
                                                  U.S. Attorney=s Office - SDFL
                                                  99 Northeast Fourth Street, 8th Floor
                                                  Miami, Florida 33132-2111
                                                  Telephone: (305) 961-9164
                                                  E-mail: edward.stamm@usdoj.gov



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