Order — United States v. Mackenzy Toussaint, 1:21-cr-00247 (S.D.N.Y., Document 294)

Summary

Document 294, filed 03/05/24, in Case 1:21-cr-00247-PAE, is an order by Paul A. Engelmayer, District Judge, in United States of America against Mackenzy Toussaint. It states that on November 9, 2022, Toussaint was sentenced principally to a term of imprisonment of 90 months, and that defense counsel moved for a reduction to 87 months' imprisonment pursuant to Amendment 821 of the Sentencing Guidelines; the Court finds Toussaint eligible for a reduction to no lower than 87 months' imprisonment but declines to reduce the sentence, stating that the calculated Guidelines range did not play a meaningful role in its assessment of the sentence. It describes the offense as one in which Toussaint played a lead role in a conspiracy to defraud the federal Paycheck Protection Program.

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“Order — United States v. Mackenzy Toussaint, 1:21-cr-00247 (S.D.N.Y., Document 294).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-usa-v-bella-dkt-294-s-d-n-y-5290a89f89/, SHA-256 e59548b7533993fce472794b6896201af9ef5efb9da0d392a903c11c4f71923f.

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Case 1:21-cr-00247-PAE Document 294 Filed 03/05/24 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

21-CR-247-02 (PAE)
-v-
ORDER
MACKENZY TOUSSAINT,

Defendant.

PAUL A. ENGELMAYER, District Judge:

On November 9, 2022, defendant Mackenzy Toussaint was sentenced principally to a

term of imprisonment of 90 months. Dkt. 196 at 2.

On February 20, 2024, defense counsel moved for a reduction ofToussaint's sentence to

87 months' imprisonment, pursuant to Amendment 821 of the Sentencing Guidelines, see Dkt.

292 (filed February 29, 2024), having been reappointed by the Court for this purpose, Dkt. 285.

On February 28, 2024, the Government filed a letter, agreeing that Toussaint is eligible for, but

opposing, a sentence reduction. Dkt. 293. The Probation Department has determined that

Toussaint is eligible for a sentence reduction. Dkt. 283.

All parties thus agree that Toussaint is eligible for a sentence reduction under

Amendment 821; that, under that Amendment, his Criminal History Category, which was III at

the time of sentencing, is now II; that his offense level remains level 28; and that his Guidelines

range on Count Three would today be 87 to I 08 months' imprisonment, rather than 97 to 121

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Case 1:21-cr-00247-PAE Document 294 Filed 03/05/24 Page 2 of 4

months, the range calculated at the time of sentencing. The Court adopts the above calculations

and finds Toussaint eligible for a sentence reduction to no lower than 87 months' imprisonment. 1

The Court has reviewed the record in this case, including its detailed assessment at the

time of sentencing of the proper sentence as reflected at the sentencing hearing, and counsel's

recent submissions. After considered attention, the Court declines to reduce Toussaint's

sentence based on Amendment 821.

That is so for this reason: The calculated Guidelines range did not play a meaningful role

in the Court's assessment of the just and reasonable sentence. On the contrary, the Court

imposed a sentence below (by seven months) the bottom of the Guidelines range. As the Court's

extended discussion at sentencing reflected, decisive instead to the determination of a just

sentence were the 18 U.S.C. § 3553(a) factors. The Court found a 90-month sentence to properly

balance these factors. Such, the Court found, was necessary to reflect Toussaint's "incredibly

serious" offense, Dkt. 212 at 48, in which he played a lead role in a conspiracy to defraud the

federal Paycheck Protection Program ("PPP") during the COVID-19 pandemic of millions of

dollars, id. at 49-50. Among other comments explaining why this lengthy sentence was needed

to achieve just punishment and promote respect for the law, the Court stated:

I will be really blunt with you at the outset. The crime you committed and
to which you pied guilty was incredibly serious. It is one of the most serious and
candidly shameful fraud offenses that I have seen in my more than 11 years on the

1 Defense counsel's letter notes that the parties' plea agreement had erroneously calculated

Toussaint's criminal history category as II and his guideline range as 78-97 months. Dkt. 292 at
2. That is ofno moment here. The Probation Department's presentence report, which the Court
adopted at sentencing without objection, correctly calculated the criminal history category as III
and his guideline range as 97-121 months. See Dkt. 146 ,r,r 77, 120; Dkt. 212 at 5-6. However,
the Court gave weight at sentencing to the erroneous calculation in the plea agreement, citing this
as a reason for imposing a term of imprisonment (90 months) that was within, not above, the
range the parties had calculated, and below the applicable guideline range. Dkt. 212 at 46-47,
61. This circumstance does not make Toussaint today eligible for a reduction of sentence to
below 87 months' imprisonment.
2
Case 1:21-cr-00247-PAE Document 294 Filed 03/05/24 Page 3 of 4

bench. Along with other people, you schemed, during a national pandemic, when
the country was hurting and small businesses were hurting, when unemployment
was soaring, you schemed to rip off the Small Business Administration of money
intended under the PPP program, put in place under the CARES Act emergency
legislation to give relief to legitimate victims. You capitalized on a once in a
century pandemic to line your own pocket. You put in for over $30 million of
bogus relief loans, and about half of those loans, $15 million, funded.

Id. at 48-49. And:

Inescapably, your motive was greed, monetary greed. When Congress
passed the PPP program, it was not to emich you; it was to [enable the payment
of] paychecks. But the coconspirators here treated that program as a piggy bank.
As a matter of basic, just punishment, as a matter of promoting respect for the
law, a substantial sentence is needed here to take account of the sheer abusiveness
of this crime.

Id. at 52; see also id. at 52-53 (noting separate scheme in which Toussaint engaged with co-

defendant to defraud federal Economic Injury Disaster Loan program through use of fake

identities); id. at 53-54 (noting Toussaint's expenditure of fruits of scheme on lavish jewelry and

"all sorts ofluxury goods"). The Court further found a 90-month sentence supported by the

interests in general and specific deterrence and public protection, id. at 54-56, and compatible

with the sentence the Court had imposed on a co-defendant, id. at 62. The below-Guidelines

sentence, the Court noted, also recognized mitigating factors identified by defense counsel, and

the positive testimonials by family and friends. Id. at 56-61. The sentence imposed, the Court

stated, was the lowest compatible with the§ 3553(a) factors, considered as a whole. Id. at 62.

The Court's assessment of the just and reasonable sentence today remains the same as at

sentencing.

The Court accordingly declines to modify Toussaint's sentence. The 90-month sentence,

the Court notes, remains a Guidelines sentence. This sentence, the Court notes, although not at

the very bottom of the 87 to 108 month Guidelines range that would apply today, is close to it.

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Case 1:21-cr-00247-PAE Document 294 Filed 03/05/24 Page 4 of 4

SO ORDERED.

United States District Judge
Dated: March 5, 2024
New York, New York

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