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Position of the United States With Respect to Sentencing Factors — United States v. McKnight (Document 28)

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A Position of the United States With Respect to Sentencing Factors in United States of America v. Marlon McKnight, Criminal No. 4:21cr71, in the U.S. District Court for the Eastern District of Virginia, Newport News Division, Document 28, filed 06/30/22 in Case 4:21-cr-00071-AWA-RJK. The United States states that it does not dispute the factors or facts in the pre-sentence report. It states that on November 8, 2021 the defendant was charged in a ten-count indictment related to COVID-19 relief funding and on January 18, 2022 pled guilty to Count One, Wire Fraud. It states that the defendant faces an advisory range of 21 to 27 months for Count One and that a sentence of incarceration within the advisory range is warranted.

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“Position of the United States With Respect to Sentencing Factors — United States v. McKnight (Document 28).” Original at ecf.vaed.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-usa-v-mcknight-dkt-28-e-d-va-283f393eb4/, SHA-256 f543d49806d162633023a2db555be86985809e4305623b59872eae2d441aaa15.

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Case 4:21-cr-00071-AWA-RJK            Document 28        Filed 06/30/22       Page 1 of 9 PageID# 128




                      IN THE UNITED STATES DISTRICT COURT FOR THE
                              EASTERN DISTRICT OF VIRGINIA
                                   Newport News Division

  UNITED STATES OF AMERICA                               )
                                                         )
                 v.                                       )      CRIMINAL NO. 4:21cr71
                                                         )
  MARLON MCKNIGHT,                                       )
                                                         )
                 Defendant.                              )

                            POSITION OF THE UNITED STATES
                         WITH RESPECT TO SENTENCING FACTORS

         In accordance with 18 U.S.C. ' 3553(a) and the United States Sentencing Commission,

  Guidelines Manual, ' 6A1.2, the United States of America, through its attorneys, Jessica D. Aber,

  United States Attorney for the Eastern District of Virginia, and Brian J. Samuels, Assistant United

  States Attorney, hereby represents that it has reviewed the Probation Office's pre-sentence report

  (PSR) and that it does not dispute any of the factors or facts set out therein.

                                              Background

         On November 8, 2021, the defendant, MARLON MCKNIGHT (hereinafter defendant),

  after having recently been prosecuted for other federal financial crimes, was charged in a ten-count

  indictment all related to a scheme to defraud the government for COVID-19 relief funding.

  Specifically, the defendant was charged with five counts of Wire Fraud, in violation of 18 U.S.C.

  § 1343; one count of Theft of Government Property, in violation of 18 U.S.C. § 641; and four

  counts of False Statements to the Small Business Administration (SBA), in violation of 18 U.S.C.

  § 1014. On January 18, 2022, the defendant pled guilty to Count One of the indictment, charging

  him with Wire Fraud, and the matter was continued for sentencing.

         As the information in the PSR and the defendant’s Statement of Facts reveals, the

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  defendant=s conviction stems from his conduct seeking COVID-19 government relief funds to

  which he was not entitled. See generally PSR at ¶¶ 7–22. The SBA, which provides support to

  small businesses, seeks to aid those businesses after disasters by assisting in their economic

  recovery through programs such as those established to refute the damages done by the COVID-

  19 pandemic. See PSR at ¶ 1–4. The SBA responded to the pandemic by introducing a new

  program called the SBA Paycheck Protection Program (PPP), which loans money to small

  businesses to provide a direct incentive for them to keep their employees on the payroll by

  forgiving all or part of the loan if all employees were kept on the payroll for eight weeks and

  documentation is provided to demonstrate that loan money was used for payroll, rent, mortgage

  interest, or utilities. PSR at ¶ 3. Another program expanded in response to the pandemic was

  the Economic Injury Disaster Loan (EIDL), a loan issued directly from the United States Treasury,

  and the proceeds of which can be used by businesses and other entities to pay fixed debts, payroll,

  accounts payable, and other bills which would not have occurred but for the disaster, excluding

  lost profit. PSR at ¶ 5–6. Applicants apply through the SBA for both types of loans and

  electronically certify that the information provided is accurate. PSR at ¶ 6.

         On August 10, 2020, the defendant electronically applied for an EIDL (loan ending in

  8205) under the company name “McKnight Cleaning Service.” PSR at ¶ 7. The defendant

  claimed that the business opened in 2014, with an ownership start date of 2015, and responded

  negatively to a question asking whether he has been convicted, pled guilty, or placed on parole or

  probation related to any felony. PSR at ¶ 8. He listed having three employees, claimed that the

  gross revenue for the past year was $85,000, and indicated that the cost of goods sold was $15,000.

  Id. The defendant was offered and accepted a loan for $35,000 based on this application. PSR


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  at ¶ 9. He received the loan through a deposit into his 1st Advantage Federal Credit Union bank

  account on August 13, 2020. All funds were withdrawn by September of 2020. Id.

         On August 11, 2020, the defendant applied for a second EIDL (application ending in 2211)

  under the company name “KCM Property Management.” PSR at ¶ 11. He listed having four

  employees, claimed that the gross revenue for the past year was $115,000, and indicated that the

  cost of goods sold was $75,000. Id. Again, the defendant answered in the negative to the

  question on the application pertaining to prior felonies. Id. The SBA denied this application on

  August 26, 2020, after the defendant failed to provide tax documentation. PSR at ¶ 12.

         On January 18, 2021, the defendant filed a third EIDL application under the business name

  “McKnight Cleaning Services.” PSR at ¶ 13. Aside from providing a different business address,

  this application provided the same information as his first EIDL application and the SBA

  subsequently informed him that it was a duplicate application. PSR at ¶¶ 13–14.

         On February 7, 2021, the defendant electronically applied for a PPP loan which he

  submitted through the SBA for the business “McKnight Cleaning Services,” requesting

  $35,417.50. PSR at ¶ 15. He claimed on this application that the business had five employees

  and intended to use the loan to cover payroll costs. Id. The defendant also checked “NO” and

  typed his initials for the loan question asking about prior felonies or convictions, guilty pleas, or

  parole and probation for loan fraud. PSR at ¶ 16. The defendant submitted a photograph of his

  Virginia driver’s license and a false 2019 tax return with this application. PSR at ¶ 17. He signed

  the application electronically to indicate that the information provided was true and accurate and

  that he understood the criminal penalties associated with providing false statements to the SBA.

  Id.


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         Based on this evidence and the related sentencing factors, the defendant currently faces

  an advisory range of 21 to 27 months for Count One and 1 to 3 years of supervised release.

  This range results from an offense level total of 14/III. The PSR attributes the defendant with

  more than $95,00 in losses (actual amount $115,417.50) and a two-level enhancement for fraud

  in connection with major disaster or emergency benefits under 18 U.S.C. § 1040.

                                              Discussion

         The United States recognizes that a sentencing court may not presume that a sentence

  within the advisory guideline range is reasonable; however, the guidelines remain a significant and

  pivotal component of the sentencing process. The Court “must first calculate the Guidelines

  range, and then consider what sentence is appropriate for the individual defendant in light of the

  statutory sentencing factors, 18 U.S.C. § 3553(a), explaining any variance from the former with

  reference to the latter.” Nelson v. United States, 129 S. Ct. 890, 891-92 (2009). Title 18, United

  States Code, Section 3553(a)(1) provides that, in determining a sentence, courts must consider the

  nature and circumstances of the offense, as well as the history and characteristics of the defendant.

  Additional factors outlined in § 3553(a)(2) include the need for the sentence to reflect the

  seriousness of the offense; to promote respect for law; to provide just punishment for the offense;

  to afford adequate deterrence to criminal conduct; and to protect the public from the defendant’s

  further crimes. 18 U.S.C. § 3553(a)(2)(A)-(C). The United States submits that a consideration

  of these factors warrants a sentence of incarceration within the advisory range.

         The United States submits that this offense was serious in nature due to the defendant’s

  repeated attempts to defraud the SBA amidst a global pandemic. The defendant clearly intended

  to use the money obtained from the government for his own personal gain, having the proceeds


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  directly deposited into an account with 1st Advantage Federal Credit Union. The loan money

  obtained, meant for small businesses truly in financial trouble due to the COVID-19 pandemic,

  did not benefit any small business and in fact only benefitted the defendant himself. Furthermore,

  the defendant not only created false companies in an attempt to obtain these loans, but also

  submitted a false 2019 tax return to further the scheme.

         The defendant’s background admits of little mitigation.          In terms of his criminal

  background, the defendant is a Criminal History Category III due to a past widespread federal

  fraud scheme in which he was essentially a mid-level manager, victimizing both banks and

  individuals. For this scheme, he was convicted of both Conspiracy to Commit Bank Fraud and

  Aggravated Identity Theft with a total loss amount of $126,800. PSR at ¶ 37. The defendant has

  failed to appear in court and pay fines as directed and has been undeterred by his prior encounters

  with the legal system.

         The defendant has five children from four different women and has been in regular

  arrearage in support obligations owed to his various children in the amount of thousands of dollars.

  PSR at ¶¶ 53–56.    The defendant has some college education from two different universities. In

  terms of work history, the defendant’s history is checkered. He served in the Army but was

  separated in lieu of trial by court martial. PSR at ¶ 77. For eight years from 2001–2009, he was

  employed sporadically at various companies with intermittent periods of unemployment. PSR at

  ¶ 76. Since then, the defendant has worked various other jobs for a couple of years at a time, with

  some periods of unemployment, until his incarceration in 2018. PSR at ¶¶ 70–75. Following his

  incarceration, the defendant was unemployed for approximately nine months in 2021 before he

  began to work again. PSR at ¶¶ 68–69. The defendant is currently employed as a commercial


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  driver. PSR at ¶ 67. The defendant has a negative net worth and has had various collection efforts

  against him. See PSR at ¶¶ 78–82.

         Perhaps what is most aggravating about this case is that the defendant began and committed

  this fraud on initial release into a halfway house in August 2020 from his prior federal fraud

  conviction. After being sent back to prison in the fall of 2020, he was ultimately released again

  in January 2021 and went right back to the fraud. This was after being sentenced to 30 months

  by this Court in criminal case no. 4:17cr118, which was a below guideline sentence (the original

  range had been 40-48 month). The defendant and his co-defendant wife were permitted to serve

  their sentences in staggered fashion due to the impact on their children. Rather than taking

  anything from this lenient treatment on a considerable fraud, the defendant immediately returned

  to fraudulent conduct aimed at exploiting the government’s efforts to get funds in the hands of

  people who were truly needy and deserving.

         To this, the defendant claims he was under peer pressure and “everyone else was doing it

  in prison and at the Halfway House.” He then claims that he used this money to get back on his

  feet, so that the “loan money was used for exactly the purpose for which the loans were designed.”

  ECF No. 27. These claims represent an astonishing effort to justify the unjustifiable. The

  defendant took money designed to help those businesses affected by the pandemic -rather than

  getting a job, or taking the right path, he took a fraudulent shortcut to benefit himself. The

  government submits that these circumstances are egregious and warrant a significant sentence of

  incarceration. Obviously, his prior lenient sentence of 30 months did little to cause this defendant

  to appreciate the severity of his prior criminal conduct.

         His request for a variance sentence of home confinement further illustrates how little self-


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  awareness he has achieved. To provide such a sentence would send the appalling message that if

  you are given a second chance (as this Court gave the defendant) and you refuse to mend your

  ways, you can keep refusing to do so with minor consequences. How can the Court have any

  confidence that the defendant will not re-offend in such a scenario? There is an expression that

  we encourage what we tolerate – such would be the lesson taken by the defendant were he to

  receive a sentence of home confinement.

          The United States submits that other important statutory factors to be addressed in this

   case are the need to provide just punishment for the defendant’s offense, to protect the public,

   to promote respect for the law, and to deter the defendant and others similarly situated. The

   instant offense involved repeated attempts to commit fraud against pandemic relief programs

   sponsored by the government through the SBA. The scope and seriousness of the offense is

   certainly deserving of just punishment.          Coupled with the defendant’s history and

   characteristics, it also evinces a need to protect the public from future crimes committed by this

   defendant.

         The sentence imposed should also promote respect for the law and afford adequate

  deterrence—both to the defendant and to others similarly situated.          The defendant’s prior

  encounters with law enforcement, even for other activity involving fraud, have not deterred him

  from criminal conduct.     Moreover, deterrence under Section 3553(a) is not limited to the

  necessary sentence to deter the defendant from engaging in further criminal conduct (specific

  deterrence), but also includes consideration of deterring other potential criminals from engaging

  in similar conduct (general deterrence). United States v. Phinazee, 515 F.3d 511, 515-16 (6th Cir.

  2008). “Because economic and fraud-based crimes are ‘more rational, cool and calculated than


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  sudden crimes of passion or opportunity’ these crimes are ‘prime candidates for general

  deterrence.’” United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006). A sentence within

  the advisory guideline range would send a significant message to individuals in the United States

  that participate in these identity theft scheme at any level in an effort to benefit financially.

                                                Conclusion

          For the foregoing reasons, then, the United States submits that a review of Section 3553(a)

  factors fully supports a sentence within the advisory guideline sentence.            Such a sentence

  appropriately reflects the gravity of the defendant=s crimes and the loss sustained by the

  government for the defendant’s personal gain. Such a sentence is justified to deter and punish the

  defendant for his criminal conduct.

                                                  Respectfully submitted,

                                                  Jessica D. Aber
                                                  United States Attorney

                                          By:                      /s/
                                                  Brian J. Samuels
                                                  Assistant United States Attorney
                                                  Virginia Bar No. 65898
                                                  Attorney for the United States of America
                                                  United States Attorney=s Office for the
                                                  Eastern District of Virginia
                                                  Fountain Plaza Three, Suite 300
                                                  721 Lakefront Commons
                                                  Newport News, Virginia 23606
                                                  Tel. (757) 591-4032
                                                  Fax: (757) 591-0866
                                                  brian.samuels@usdoj.gov




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                                   CERTIFICATE OF SERVICE

         I hereby certify that on the 30th day of June, 2022, I electronically filed the foregoing

  with the Clerk of Court using the CM/ECF system, which will send a notification of such filing

  (NEF) to the following:

         James S. Ellenson, Esq.
         Counsel for the Defendant
         2600 Washington Avenue, Suite 1007
         Newport News, Virginia 23607
         (757) 244-4445

         And I hereby certify that I have served the document by electronic mail to the

  following non-filing user:

         Jeffrey A. Noll
         U.S. Probation Officer
         827 Diligence Drive, Suite 210
         Newport News, Virginia 23606

                                                                 /s/
                                                Brian J. Samuels
                                                Assistant United States Attorney
                                                Virginia Bar No. 65898
                                                Attorney for the United States of America
                                                United States Attorney=s Office for the
                                                Eastern District of Virginia
                                                Fountain Plaza Three, Suite 300
                                                721 Lakefront Commons
                                                Newport News, Virginia 23606
                                                Tel. (757) 591-4032
                                                Fax: (757) 591-0866
                                                brian.samuels@usdoj.gov




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