Objections to Pre-Sentence Investigation Report — United States v. Rivero (S.D. Fla., Document 32)

Summary

Objections to Pre-Sentence Investigation Report, Document 32, entered on the docket October 28, 2021 in United States of America v. Leonel Rivero, Case No. 21-20160-cr-WILLIAMS, in the U.S. District Court for the Southern District of Florida. Rivero objects to the allegation that $975,582 was disbursed to him, to a two-level enhancement under § 2B1.1(b)(12) tied to 18 U.S.C. § 1040, which the filing says the government has also objected to, and to the determination that a mitigating role adjustment is not warranted. The filing states that Rivero acknowledges responsibility for preparing the 118 loan applications, which sought a total of $2,334,064, and asks for a three-level reduction. It asks the Court to calculate a total offense level of 17 and an advisory guideline range of 24 to 30 months, and is signed /s/ Michael Mirer.

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“Objections to Pre-Sentence Investigation Report — United States v. Rivero (S.D. Fla., Document 32).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-usa-v-rivero-dkt-32-s-d-fla-0126c7fd57/, SHA-256 7bb0b5bf54b5bcae8d4077ea74f723e6f8eca89f45a7508ad9756f179cbab1d7.

Full text

Case 1:21-cr-20160-KMW Document 32 Entered on FLSD Docket 10/28/2021 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-20160-cr-WILLIAMS

UNITED STATES OF AMERICA,

Plaintiff,
v.

LEONEL RIVERO,

Defendant.
/

OBJECTIONS TO PRE-SENTENCE INVESTIGATION REPORT

Defendant, LEONEL RIVERO, hereby files his objections to his Pre-Sentence

Investigation Report (hereinafter “PSI”) and in support states:

Paragraph 35: Rivero objects to the allegation that $975,582 was disbursed to him.

As noted in Paragraph 21, 47 of the 118 applications were funded “resulting in the

disbursement of $975,582 to the applicants’ accounts at seven different financial

institutions.” (Emphasis added).

Paragraph 45: Rivero objects to Probation’s assessment that a two level

enhancement pursuant to § 2B1.1(b)(12) is warranted “[b]ecause the offense involved

conduct described in 18 U.S.C. § 1040 (fraud in connection with major disaster or

emergency benefits).” Rivero’s offense conduct did not involve the conduct described in

18 U.S.C. § 1040 which prohibits fraud in connection with benefits obtained under a

Robert T. Stafford emergency or major disaster declaration. The PPL loans do not fall in

this category and, therefore, the enhancement does not apply. The government has

lodged the same objection to this enhancement.
Case 1:21-cr-20160-KMW Document 32 Entered on FLSD Docket 10/28/2021 Page 2 of 4

Paragraph 47: Rivero objects to the determination that a mitigating role adjustment

is not warranted. When a defendant plays a less culpable role than others in concerted

activity, the Sentencing Guidelines provide for a reduction in the offense level:

Based on the defendant’s role in the offense, decrease the offense level as
follows:

(a) If the defendant was a minimal participant in any criminal activity,
decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal activity,
decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. § 3B1.2 (Emphasis in original). The Application Notes instruct that a reduction

applies where the participant is substantially less culpable than the average participant.

To illustrate this point, the commentary provides:

<Likewise, a defendant who is accountable under § 1B1.3 for a loss amount
under § 2B1.1 (Theft, Property Destruction, and Fraud) that greatly
exceeds the defendant's personal gain from a fraud offense or who had
limited knowledge of the scope of the scheme may receive an adjustment
under this guideline. For example, a defendant in a health care fraud
scheme, whose participation in the scheme was limited to serving as a
nominee owner and who received little personal gain relative to the loss
amount, may receive an adjustment under this guideline.>

Application Note 3(A)(emphasis added). Similarly, the commentary notes that “a

defendant who does not have a proprietary interest in the criminal activity and who is

simply being paid to perform certain tasks should be considered for an adjustment under

this guideline.” Application Note 3( C). “The fact that a defendant performs an essential

or indispensable role in the criminal activity is not determinative.” Application Note 3( C).

Rivero is just the type of participant that is the focus of this guideline. Rivero

-2-
Case 1:21-cr-20160-KMW Document 32 Entered on FLSD Docket 10/28/2021 Page 3 of 4

acknowledges that he is responsible for preparing the 118 loan applications. Those loan

applications sought a total of $2,334,064 for which Rivero is being held fully accountable

under the guidelines. However, Rivero was paid by the applicants a fee to perform a task

- - prepare the loan application. While those applicants directly received thousands of

dollars, 47 were funded for a total of $975,582, Rivero received approximately $500 - $700

for each application that was funded. That means Rivero received approximately $31,0001

of the more than $2 million in loan applications for which he is being held accountable. In

other words, the amount for which Rivero is being held accountable (which results in a

much higher guideline than it would be if based on the amount Rivero actually received)

greatly exceeds the amount Rivero personally gained from the offense. Thus, a three-level

reduction in his offense level is warranted.

Paragraphs 49 and 53: These paragraphs set forth the “Adjusted Offense Level”

and Total Offense Level which are at least 2 levels higher than they should be because

Probation has added a 2-level enhancement that the parties agree does not apply.

Accordingly, Rivero asks this Court to calculate his advisory guideline range as follows:

Base Offense Level 7

Increase under § 2B1.1(b)(1)(E) +16

Adjustment for Role in the Offense -3

Adjustment for Acceptance of Responsibility -3

Total Offense Level 17

1
Rivero did receive money for his own applications. However, the applications
submitted for the other (uncharged) participants total more than $2 million for which
Rivero received approximately $31,000.

-3-
Case 1:21-cr-20160-KMW Document 32 Entered on FLSD Docket 10/28/2021 Page 4 of 4

With a total offense level of 17 and a criminal history category of I, Rivero’s advisory

guideline range is 24 to 30 months.

Respectfully submitted,

/s/ Michael Mirer
MICHAEL MIRER, ESQ.
100 N. Biscayne Blvd.,
Suite 1300
Miami, Florida 33130
Telephone: (305) 536-6177
Facsimile: (305) 536-6179
E-mail: michael@mirerlaw.com
Florida Bar No. 119490

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed

electronically and served on all counsel of record using the cm/ecf filing system this 28th

day of October, 2021.

/s/ Michael Mirer
MICHAEL MIRER, ESQ.

-4-

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