Sentencing Memorandum and Motion for Downward Variance — United States v. Rivero (S.D. Fla., Document 36)

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A Sentencing Memorandum/Response to Government's Sentencing Memorandum and Motion for Downward Variance 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, Document 36, entered on the FLSD docket 11/16/2021. The defendant asks the Court to vary downward from the advisory guideline range, stating that the range would be 24 to 30 months if his PSI objections were granted. The memorandum states that the loan applications he helped prepare sought $2,334,064, that he received approximately $500 - $700 for each funded application, and that he forfeited $975,000. It argues that a 38 month prison term would serve no purpose and is signed /s/ Michael Mirer.

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“Sentencing Memorandum and Motion for Downward Variance — United States v. Rivero (S.D. Fla., Document 36).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-usa-v-rivero-dkt-36-s-d-fla-87e7446930/, SHA-256 a66bb1e658c8ad5ccf9d7e2d1bd809d5a521f6ed222bd258dcb28cbaf6dcaf38.

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Case 1:21-cr-20160-KMW Document 36 Entered on FLSD Docket 11/16/2021 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-20160-cr-WILLIAMS

UNITED STATES OF AMERICA,

Plaintiff,
v.

LEONEL RIVERO,

Defendant.
/

SENTENCING MEMORANDUM/RESPONSE TO
GOVERNMENT’S SENTENCING MEMORANDUM AND
MOTION FOR DOWNWARD VARIANCE

Defendant, LEONEL RIVERO, hereby files his Sentencing Memorandum, response

to the government’s sentencing memorandum and asks this Court to consider varying

downward from the advisory guideline range. In support of this request, Rivero states as

follows:

Should this Court grant Rivero’s PSI objections, his advisory guideline range is 24

to 30 months. However, the law is well-settled that sentencing does not end with a

guideline calculation. Once an advisory guideline is calculated, this Court must consider

the factors set forth in Title 18 U.S.C. § 3553 when fashioning an appropriate sentence in

this case. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). While § 3553

sets forth a wide range of factors that must be evaluated, this Court may weigh some

factors more heavily than others. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

While Probation determined that Rivero is not eligible for a minor role adjustment,

nothing prohibits this Court from considering some of the same factors that would have
Case 1:21-cr-20160-KMW Document 36 Entered on FLSD Docket 11/16/2021 Page 2 of 6

applied when determining an appropriate sentence in this case. United States v. Moran,

778 F.3d 942, 983 (11th Cir. 2015)(“[T]he district court, in imposing a variance, may

consider conduct that a probation officer already had considered in calculating the

defendant's advisory guidelines range”). In this regard, the Commentary to U.S.S.G.

§ 3B1.2 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). It goes on to explain 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).

Despite the government’s claim to the contrary, Rivero’s conduct certainly fits.

Rivero is not a corrupt tax preparer as the government alleges. Nor does Rivero have any

background in loan processing or the functioning of the SBA. His clients sought PPP loans

which he helped prepare. 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 - - nothing more.

While those applicants directly received thousands of dollars, 47 were funded for

approximately $900K, Rivero received approximately $500 - $700 for each application that

-2-
Case 1:21-cr-20160-KMW Document 36 Entered on FLSD Docket 11/16/2021 Page 3 of 6

was funded. That means Rivero was paid approximately $31,000 of the more than $2

million in loan applications. (He has also forfeited $975,000 and is solely on the hook for

more than a million in restitution as it does not appear anyone else is being prosecuted).

In other words, Rivero is being held accountable for an amount which substantially

exceeds his personal gain. A reasonable sentence should account for this disparity

regardless of Rivero’s status as a tax preparer as this is not a tax fraud case.

Rivero acknowledges that he mishandled these applications but the government’s

argument that he was the mastermind is a step too far.1 Rivero did not steal identities, or

sign and submit applications for unwitting individuals. On the contrary, each person whose

corporation received money swore to the application’s accuracy. After swearing to the

application each (and not Rivero) received the loan proceeds, funded directly to his/her

bank account. It is hard to imagine that the loan recipients were victims as the government

suggests. Notably, it does not appear that any one of the 47 loan recipients have offered

to return the money they were allegedly surprised to have received.

Moreover, the government’s argument that Rivero is deserving of a greater

punishment because he has a history of fraud is completely baseless. Rivero was audited

and paid a civil penalty for not having the back-up documentation for tax returns he

prepared. Rivero never acknowledged that he submitted false tax information nor were the

tax returns false or fraudulent. He has no criminal history because he did not commit a

1
The government’s citation to United States v. Maurival, 848 Fed. Appx. 397, 400
th
(11 Cir. 2021) is misleading as it was not the filers that Maurival guided. Rather, his
role was enhanced (after trial) because he provided the means, his filing identification
number, to his tax preparer co-conspirators to file false tax returns. And, Maurival
controlled and distributed the proceeds of the scheme to his co-conspirators from his
bank account.

-3-
Case 1:21-cr-20160-KMW Document 36 Entered on FLSD Docket 11/16/2021 Page 4 of 6

crime. Period. The argument that he somehow got away with it and that he should now

be held accountable must be ignored.

As should the argument that Rivero is deserving of a greater punishment because

he submitted forgiveness applications after being visited by the IRS. There is no evidence

that the loans were not used for the purposes listed on the forgiveness applications (i.e.

that the forgiveness applications were fraudulent). Indeed, if the forgiveness applications

contained false information it would contradict the government’s claim that the loan

recipients did not have any knowledge of the inaccuracies in their loan applications in the

first place. They (not Rivero) would have had to swear that they used the loan proceeds

that were deposited into their bank accounts for the purposes claimed in the forgiveness

applications. Put simply, Rivero performed a task for applicants who benefitted

substantially more than he did and, accordingly, his sentence should be less than the

advisory guideline range as a result.

In terms of what that sentence should be, Rivero also believes this Court should be

guided by the sentences of others who have been convicted of fraud in connection with the

PPP loan program. For example, in United States v. Walker, Case No. 20-60159 (S.D.

Fla.), the defendant used her medical billing services company to apply for a PPP loan in

which she swore falsely that her business had 12 employees. She received $258,575 in

loan proceeds out of which she paid two co-conspirators a total of $100K, meaning she

profited more than $150K. The defendant’s offense level was calculated at 15 with a range

of 18 to 24 months. She sought a two-level minor role reduction which the government

opposed. She was sentenced to 12 months and 1 day. Rivero did not gain anywhere near

$150K for the loan applications he prepared.

-4-
Case 1:21-cr-20160-KMW Document 36 Entered on FLSD Docket 11/16/2021 Page 5 of 6

In United States v. Andre Clark, Case No. 21-60029-cr-WPD (S.D. Fla.), the

defendant applied for and obtained a PPP loan in the amount of $488,565. He also

referred a number of other conspirators to the scheme resulting in an intended loss of

$7,263,564 for which the defendant received a fee. The guidelines were calculated at a

level 21 with a range of 37 to 46 months. The defendant asked for a two to four-level

reduction for his role while the government sought a sentence of 41 months. The

defendant, who (again) personally received $488K, as well as kickbacks, and was

accountable for more than $7 million in loans (which appear to have been funded), was

sentenced to 33 months. Certainly, Rivero should not receive a greater sentence than a

defendant who personally gained nearly $500K and whose intended loss was 3 times the

amount.

Rivero is remorseful. He accepted responsibility for his actions demonstrated not

only by his plea to a criminal complaint but his forfeiture of the cash seized from his home

and money seized from his bank account. Neither were the proceeds of the PPP loans

that were paid directly to the loan applicants. He is still on the hook for restitution meaning

he will be out of pocket twice the amount of the funded loans when he gained substantially

less. And, this will be the case because it appears he is the only one facing prosecution

for these loans. Rivero is a young man whose life is forever changed. He will be affected

by this conviction long after a prison term is over. Thus, a 38 month prison term will serve

no purpose but to punish Rivero harshly for preparing loan applications while the recipients

enjoy the proceeds without repercussion.

-5-
Case 1:21-cr-20160-KMW Document 36 Entered on FLSD Docket 11/16/2021 Page 6 of 6

WHEREFORE, Rivero requests this Court consider these and any other factors

argued at the hearing when fashioning an appropriate sentence in this case.

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 this 16th day of November, 2021.

/s/ Michael Mirer
MICHAEL MIRER, ESQ.

-6-

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