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Government's Sentencing Memorandum — United States v. Rogers (District of New Hampshire, Document 50)

Summary

The Government's Sentencing Memorandum filed 01/18/23 as Document 50 in United States of America v. Pierre Rogers, No. 22-cr-74-PB-01, in the U.S. District Court for the District of New Hampshire. The government states that Rogers and co-defendant Joshua Leavitt obtained $803,756 in CARES Act funds through seven approved EIDL and PPP applications, out of 22 applications with an intended loss of over $4.8 million. It agrees with Probation's Guidelines range of 41-51 months at a total offense level of 22 and Criminal History Category of I. It asks the court to impose a sentence of 41 months' incarceration and argues the need for deterrence. The signature block names Assistant U.S. Attorney Alexander S. Chen.

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“Government's Sentencing Memorandum — United States v. Rogers (District of New Hampshire, Document 50).” Original at ecf.nhd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-usa-v-rogers-et-al-dkt-50-1ce787be4b/, SHA-256 384cd6982c4f3a559cc8015c395ae29368dc84ce93b817515832431b4bd70c17.

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        Case 1:22-cr-00074-PB           Document 50         Filed 01/18/23   Page 1 of 11




                              UNITED STATES DISTRICT COURT
                               DISTRICT OF NEW HAMPSHIRE

                                               )
 UNITED STATES OF AMERICA                      )
                                               )
           v.                                  )
                                               )       No. 22-cr-74-PB-01
 PIERRE ROGERS,                                )
                                               )
                 Defendant                     )
                                               )

                    GOVERNMENT’S SENTENCING MEMORANDUM

        Rolls Royce. Porsche. Coach. Cartier. Bulgari. Bottega Veneta. Ritz Carlton. These

are some of the finest luxury brands in the world. They are also how the defendant squandered

hundreds of thousands in taxpayer-backed funds intended for pandemic relief. PSR ¶¶ 53, 57.

        Amidst the worst health crisis in a century, Congress passed the Coronavirus Aid, Relief,

and Economic Security (CARES) Act to extend lifelines to the millions of Americans struggling

to put food on their table, pay for housing, afford medicine, and keep the lights on. Among those

lifelines were the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan

(EIDL) program. These taxpayer-backed loans were intended to help businesses stay afloat

during widespread lockdowns and economic turmoil. Given the exigencies of the pandemic, our

Government trusted citizens to provide truthful information when applying for those loans to

facilitate the quick distribution of funds.

        The defendant and his co-defendant, Joshua Leavitt, brazenly violated that trust. In the

largest CARES Act fraud prosecution in this district to date, they fraudulently obtained over

$800,000 in CARES Act funds and tried to get millions more. Under the circumstances, a

significant sentence is appropriate to reflect the seriousness of the offense and promote respect

for the law. Accordingly, and for the following reasons, the Government respectfully requests

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the Court impose a Guidelines sentence of 41 months’ imprisonment.

I.     Factual Background

       A.      The CARES Act

       On March 13, 2020, the President declared a nationwide disaster in response to the

ongoing COVID pandemic and resulting economic crisis. PSR ¶ 17. Shortly thereafter,

Congress passed the CARES Act. PSR ¶ 18. As relevant here, the CARES Act created the PPP.

PSR ¶ 18. Under the PPP, small businesses could apply for loans from lenders at 1% interest.

PSR ¶ 19. If the borrower spent the bulk of the loan proceeds on payroll, the loans would be

forgiven. PSR ¶ 19. Because PPP loans were federally guaranteed, American taxpayers served

as the backstop.

       The CARES Act also expanded the Small Business Administration’s (SBA) EIDL

program. PSR ¶ 20. Like PPP loans, EIDLs were loan-interest loans which were supposed to be

used to help businesses pay their operating expenses. PSR ¶ 20.

       B.      The Fraud

       The defendant owned and controlled several companies, including Monticello

Transnational, Puro Trader (d/b/a Yahyn), Puro Lounge, Puro Group, and Sunju (together, the

“Companies”). PSR ¶¶ 12-16. He was the sole signatory over bank accounts belonging to

Sunju, while he and Leavitt were both signatories on accounts belonging to Monticello, Puro

Trader, Puro Lounge, and Puro Group. PSR ¶¶ 12-16.

       Between March 2020 and November 2021, the defendant and Leavitt applied for dozens

of EIDLs and PPP loans for the Companies using false information. They usually inflated the

Companies’ revenues and number of employees and provided supporting documentation in the

form of tax filings purportedly submitted to the IRS. In total, the defendant participated in 22



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fraudulent loan applications and modification requests, resulting in an intended loss of over $4.8

million. PSR ¶¶ 94-95, 102. Seven of the defendant’s EIDL and PPP loan applications were

approved, resulting in him successfully obtaining $803,756. PSR ¶¶ 94, 96, 102.

       The Court has undoubtedly reviewed the PSR thoroughly, and this memorandum will not

belabor the point by walking through all 22 fraudulent applications connected to the defendant.

PSR at 34. Nevertheless, the following paragraphs highlight some of the defendant’s more

egregious conduct.

       For example, on April 27, 2020, the defendants submitted a PPP application for $100,000

to TD Bank for Puro Lounge, a company Rogers owned 100%. PSR ¶ 47. As part of their

application, they claimed Puro Lounge had monthly payroll of $40,000 and that they had five

employees. PSR ¶ 47. They even provided a false IRS Form 941 claiming that they paid

employees $118,750 during the first quarter of 2020. PSR ¶ 48. The defendants never made such

a tax filing. PSR ¶ 48. And bank records showed Puro Lounge had no transactions suggesting

any legitimate business activity. PSR ¶ 48. TD Bank granted the PPP loan, and the defendants

spent the funds, including via a $16,000 cash withdrawal on September 18, 2020. PSR ¶ 49.

Despite none of the money being spent on payroll for Puro Lounge, Puro Lounge claimed 100%

of the proceeds were used to pay employees. PSR ¶ 50. The SBA ultimately forgave this loan.

PSR ¶ 50.

       On May 6, 2020, the defendants submitted a PPP application for $175,000 to TD Bank

for Puro Group. PSR ¶ 51. Rogers also owned this company 100%. PSR ¶ 51. The application

falsely claimed the company had six employees earning $70,000 per month. PSR ¶ 51. In

support, the defendants offered a “Payroll Summary” for another company the defendant

owned—Sunju—purporting to show payroll of approximately $210,000 in Q1 2020. PSR ¶ 52.



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The defendants also offered a false IRS Form 941 for that quarter showing the same. PSR ¶ 52.

No such filing was ever submitted to the IRS. Indeed, the real IRS filing for Puro Group in 2020

showed the company paid $48,255.53 to its employees that entire calendar year, less than what

Puro Group claimed to pay in a single month. PSR ¶ 52. And, the defendants did not even

create a bank account for Puro Group until the day they applied for the PPP loan. PSR ¶ 52. TD

Bank granted this loan. Of the $175,000 in PPP proceeds, the defendant spent $107,780 alone to

purchase a 2011 Rolls Royce Ghost. PSR ¶ 53. The defendant spent approximately another

$56,000 to purchase a Porsche. PSR ¶ 53. These purchases are the antithesis of what Congress

intended the CARES Act to provide.

       Yet the defendant’s greed was not sated. In perhaps the most egregious loan, on May 18,

2020, the defendant helped arrange an application for a $175,000 PPP loan for Sunju. PSR ¶ 54.

The application falsely claimed a monthly payroll of approximately $70,000 and included

doctored supporting documents, including the same fraudulent “Payroll Summary” provided for

Puro Group showing five employees making $70,000 per month. PSR ¶ 55. The defendants also

provided a false Form 941 claiming not only that Sunju paid its employees approximately

$210,000 during Q1 2020, but also that it had actually withheld federal income tax of $27,600

that quarter. PSR ¶ 55. The defendant successfully obtained the $175,000 loan, and the proceeds

were deposited into an account he had total control of. He proceeded to spend the taxpayer-

backed funds on jewelry, fine clothing, vehicles, and resort stays. PSR ¶ 57. For example, he

spent $1,777.88 at Cartier on July 27, 2020, $4,039.99 at a Jaguar/Land Rover dealership on

August 10, 2020, $5,855.67 at Coach on September 22, 2020, $4,049.42 at the Ritz Carlton on

October 13, 2020, $3,542.27 at the Monarch Beach Resort on October 30, 2020, $3,340.25 at the

Italian luxury clothing company Bottega Veneta on December 17, 2020, and $3,167.85 at



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Bulgari on December 23, 2020. PSR ¶ 57. The defendant also was a regular connoisseur of

sushi and steak on the taxpayer dime. PSR ¶ 58.

         As time went on, the defendants’ claims became more outlandish. For example, on

January 19, 2021, the defendant applied for a second draw PPP loan for Puro Trader seeking

$216,370. PSR ¶ 71. He was the majority (75%) owner and falsely claimed that monthly

payroll was $86,548 and that he had 11 employees. PSR ¶ 71. This represented remarkable

growth. After all, less than a year earlier, the defendant had claimed a monthly payroll of

$53,102 and just six employees to get a $132,756 PPP loan for Puro Trader. PSR ¶ 34. In this

second draw application, the defendant also falsely asserted Puro Trader had a banner year.

Supporting tax documents claimed Puro Trader paid employees a grand total of $1,038,577.14 in

2020, including $470,250 in Q4 2020 alone. PSR ¶ 72. Of course, as with the other

applications, the claimed figures and supporting documents were bogus and wildly inflated the

truth.

II.      Guidelines Calculation

         The Government agrees with Probation’s calculated Guidelines range of 41-51 months

based off a total offense level of 22 and Criminal History Category of I. PSR ¶ 147. The offense

level includes an 18-level enhancement because the intended loss exceeded $3.5 million. See

U.S.S.G. § 2B1.1, App. Note 3(A) (defining “loss” as “the greater of actual loss or intended

loss”). Therefore, the proposed sentence falls within the Guidelines range and no variance is

needed.

         The defendant raised an objection to the PSR contending that only a 14-level

enhancement should apply because the actual loss was between $550,000 and $1.5 million. See

PSR at 41. Following this reasoning, his total offense level would be 18, resulting in a



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Guidelines range of 27-33 months. In support he relies chiefly on United States v. Banks, 55

F.4th 246 (3d Cir. 2022). There, the Third Circuit relied on the Supreme Court’s decision in

Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019), where the Court cautioned that before applying

Auer deference, 1 “a court must exhaust all the ‘traditional tools’ of construction.” The Banks

panel accorded no deference to the Guidelines commentary because in its view the meaning of

“loss” in the Guidelines means only “actual loss.” 55 F.4th at 257.

         However, the Government believes that Banks was incorrectly decided because it is

inconsistent with Supreme Court precedent. Thirty years ago, the Court held that commentary in

the Sentencing Guidelines “that interprets or explains a guideline is authoritative unless it

violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). The Court defined

“inconsistent” in this context as meaning “that following [either the commentary or the guideline

it interprets] will result in violating the dictates of the other.” Id. at 43. In reaching its holding,

the Court noted that Congress had entrusted the Sentencing Commission with “establishing

sentencing policies and practices for the Federal criminal justice system.” Id. at 40-41 (cleaned

up). These included the guidelines themselves, along with policy statements and commentary.

Id. at 41. The Court explained that according deference to the commentary “is consistent with

the role the Sentencing Reform Act contemplates for the Sentencing Commission. The

Commission, after all, drafts the guidelines as well as the commentary interpreting them, so we

can presume that the interpretations of the guidelines contained in the commentary represent the

most accurate indications of how the Commission deems that the guidelines should be applied to



         1
           Under Auer deference (also called Seminole Rock deference), courts are to defer to an agency’s
interpretation of its own regulations unless it is “plainly erroneous or inconsistent with the regulation.” Auer v.
Robbins, 519 U.S. 452, 461 (1997); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).

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be consistent with the Guidelines Manual as a whole as well as the authorizing statute.” Id. at

45.

         The Banks panel understood Kisor to effectively abrogate Stinson. Banks, 55 F.4th at

255-56 (citing United States v. Nasir, 17 F.4th 459, 470 (3d Cir. 2021) (en banc)). But Kisor

expressly declined to reverse Auer and its related cases, including Stinson. Kisor, 139 S. Ct. at

2418-23; see also id. at 2412 n.3 (including Stinson as part of the progeny of Seminole Rock and

Auer). By its own words, the Supreme Court only sought to “restate, and somewhat expand on,

those principles” underlying Auer. See United States v. Lewis, 963 F.3d 16, 24 (1st Cir. 2020)

(citing Kisor¸ 139 S. Ct. at 2414-15). Unless and until the Supreme Court reverses Stinson, it is

still good law and binding on all lower courts. Indeed, the First Circuit and other lower courts

have faithfully applied Stinson even after Kisor. See Lewis, 963 F.3d at 18 (upholding career-

offender enhancement under App. Note 1 to U.S.S.G. § 4B1.2); United States v. Rueda, 933 F.3d

6, 9-11 (1st Cir. 2019) (upholding $500-per-card multiplier under App. Note 3(F)(i) to U.S.S.G.

§ 2B1.1); United States v. Moses, 23 F.4th 347, 357 (4th Cir. 2022); United States v. Broadway,

815 F. A’ppx 95, 96 & n.2 (8th Cir. 2020); United States v. Richardson, 958 F.3d 151, 154-55

(2d Cir. 2020). 2 But see United States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021) (agreeing

with the Third Circuit that Kisor upended cases that “upheld commentary”); United States v.

Kirilyuk, 29 F.4th 1128, 1138-39 (9th Cir. 2022) (same). 3

         Relatedly, the limits on Auer deference set forth by the Supreme Court in Kisor should

not extend to Guidelines commentary. As Judge Niemeyer recently explained in Moses, 23 F.4th



        2
          The Fifth Circuit had also continued to apply Stinson post-Kisor. See United States v. Vargas, 35 F.4th
936, 939-40 (5th Cir. 2022). However, the Fifth Circuit agreed to rehear Vargas en banc. See United States v.
Vargas, 45 F.4th 1083 (Mem.) (5th Cir. 2022).
         3
           Judge Collins dissented, noting that the majority was ignoring not only Ninth Circuit precedent, but also
Stinson. Kirilyuk¸ 29 F.4th at 1141-42 (Collins, J., dissenting).

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at 356:

                 Kisor deference, as the Kisor Court explained, comes into play only
                 when agencies are interpreting their regulations. But the Sentencing
                 Guidelines provide a broader role for commentary, as recognized in
                 Stinson. See 508 U.S. at 44. As the Guidelines themselves provide,
                 commentary was provided not only to interpret Guidelines but also
                 to “explain how [they are] to be applied.” U.S.S.G. § 1B1.7
                 (emphasis added). And as the Stinson Court explained, commentary
                 “provides concrete guidance as to how even unambiguous
                 guidelines are to be applied in practice,” 508 U.S. at 44, and it helps
                 ensure that each Guideline is applied in a manner most “consistent
                 with the Guidelines Manual as a whole as well as the authorizing
                 statute,” id. at 45. . . . Indeed, the commentary’s particularized role
                 in this regard supported Stinson’s holding that commentary is
                 authoritative and binding, regardless of whether the Guideline is
                 ambiguous, except when inconsistent with the Constitution, federal
                 statute, or the Guideline.

          Moreover, to the extent defendants may rely on the Sixth Circuit’s note that only the

Guidelines and not commentary “must go through notice-and-comment rulemaking,” Riccardi,

989 F.3d at 485, this is not borne out in practice. The Commission “nonetheless follows the

practice of providing, ‘to the extent practicable, comparable opportunities for public input on

proposed policy statements and commentary considered in conjunction with guideline

amendments.’” Moses, 23 F.4th at 353 (citing U.S. Sentencing Commission Rules of Practice

and Procedure 6-7 (as amended Aug. 18, 2016)).

III.      Argument

          The sentencing statute, 18 U.S.C. § 3553, sets forth the factors district courts must

consider in imposing a just sentence. Those factors include “the nature and circumstances of the

offense,” “the history and characteristics of the defendant,” and the “need for the sentence

imposed to reflect the seriousness of the offense, to promote respect for the law,” and “to afford

adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(1) & (2).

          A.     Nature and Circumstances of the Offense

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       Here, the defendants’ actions in this fraud shock the conscience. The defendants did not

merely steal funds from the government. Rather, they fleeced a limited pool of funds which

were designed specifically to serve as a lifeline to small businesses and their employees during

the worst public health crisis in a century. The Court is undoubtedly aware of the myriad of

news stories discussing how quickly the limited pot of PPP funds was depleted. See e.g.¸Stacy

Cowley, The Paycheck Protection Program is out of money, N.Y. Times, May 4, 2021,

https://www.nytimes.com/2021/05/04/business/paycheck-protection-program-closes.html;

Carmen Reinicke, Paycheck Protection Program has run out of money for most borrowers.

What you need to know, CNBC, May 5, 2021, https://www.cnbc.com/2021/05/05/ppp-has-run-

out-of-money-for-most-borrowers-what-to-know.html. By taking over $800,000 in CARES Act

funds, the defendant denied legitimate businesses those funds.

       In doing so, they took advantage of the fact that lenders did not subject CARES Act loans

to the same vetting and due diligence as normal business loans given the exigencies of the

pandemic. They fabricated information about their companies and doctored tax filings to

deceive lenders, taking advantage of an especially vulnerable moment in history.

       Moreover, this was not some one-off fraud. The defendant participated in 22 fraudulent

loan applications times to the SBA, TD Bank, and other lenders. PSR ¶¶ 94-95. The revolving

door of fraudulent applications totaled over a whopping $4.8 million in principal alone. PSR

¶ 102. And while, fortunately, lenders denied most of the applications, the defendant was still

able to obtain $803,756 in funds through lies. PSR ¶¶ 96, 102.

       The defendant’s purchases with his CARES Act funding are another aggravating factor.

As described in the PSR, the defendant spent hundreds of thousands of dollars on luxury

vehicles, jewelry, resort stays, and deluxe meals. PSR ¶¶ 53, 57, 58. The defendant was living



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the high life while the rest of the country was in economic turmoil.

        Altogether, these aggravating factors suggest nothing less than a Guidelines sentence is

appropriate.

        B.       History and Characteristics of the Defendant

        The Government accepts as true that the defendant had a difficult childhood and an

unstable family environment growing up. PSR ¶¶ 121-24. But that neither explains nor excuses

his fraudulent conduct almost a quarter century into adulthood. In fact, the PSR shows the

defendant has been a successful white-collar professional, earning six-figure salaries for almost

15 years. PSR ¶¶ 133-41. Even today, he was recently employed as a software sales director,

earning over $150,000 per year plus commission. PSR ¶ 133. 4 And, he enjoys a strong

relationship with his wife and children. PSR ¶¶ 125-27. Taken altogether, the defendant’s

history and circumstances show that he is an intelligent and successful individual. But despite

having it all, he still chose to commit this crime.

        C.       The Need for Deterrence

        When drafting the sentencing statute, Congress specifically noted that general deterrence

is particularly important for white-collar criminals. Specifically, Congress stated “Major white

collar criminals often are sentenced to small fines and little or no imprisonment. Unfortunately,

this creates the impression that certain offenses” are punished so lightly that the consequences

“can be written off as a cost of doing business.” S. Rep. No. 98-225, at 76 (1983), reprinted in

1984 U.S.C.C.AN. 3182, 3259. A significant sentence of imprisonment is necessary to convey a

message so that prospective wrongdoers will recognize that the justice system will impose




       4
         The defendant’s sentencing memorandum indicates he has since been terminated from that position.
[ECF No. 49 at 8]

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significant consequences on those who defraud pandemic relief programs. The proposed

sentence of 41 months will send that message loud and clear.

IV.    Conclusion

       For the foregoing reasons, the Government respectfully requests the Court impose a

sentence of 41 months’ incarceration.

                                            Respectfully submitted,

                                            JANE E. YOUNG
                                            United States Attorney

Dated: January 18, 2023             By:     /s/ Alexander S. Chen
                                            Alexander S. Chen
                                            Assistant U.S. Attorney
                                            53 Pleasant Street, 4th Floor
                                            Concord, New Hampshire 03301
                                            (603) 225-1552
                                            Alexander.chen@usdoj.gov




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