Defendant’s Sentencing Memorandum — No. 1:22-cr-00045 (Dkt. 103, D. Haw.)

Summary

Defendant Christopher Mazzei's sentencing memorandum, filed January 2, 2025 as Document 103 in United States v. Mazzei, No. 1:22cr00045-JMS, in the U.S. District Court for the District of Hawaii. The first section renews his objection to PSR ¶ 44, which applies a three-level gross receipts enhancement under USSG § 2B1.1(b)(17)(A). It argues that funds he and his co-defendant received jointly cannot count as individual receipts, so the $710,332 cashier's check does not bring him to $1,000,000, and that his offense level should be 17 rather than 20, with a range of 24-30 months rather than 33-41 months. A second section discusses mitigating factors and attaches letters of support, and states that the plea agreement precludes a departure or variance request.

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“Defendant’s Sentencing Memorandum — No. 1:22-cr-00045 (Dkt. 103, D. Haw.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/defendant-s-sentencing-memorandum-no-1-22-cr-00045-dkt-103-d-haw-22cd8229b6/, SHA-256 59705b6e74fb4bc98c2385010dbc390379a99441779bcae7b934dbf3d6a5b068.

Full text

Case 1:22-cr-00045-JMS Document 103 Filed 01/02/25 Page 1 of 11 PageID.834

COGDELL LAW FIRM PLLC
DAN COGDELL
TX Bar No. 04501500
712 Main Street, Suite 2400
Houston, TX 77002
Phone: (713) 426-2244
Email: Dan@cogdell-law.com

THE LAW OFFICES OF DORIS LUM, LLC
DORIS LUM
JD No. 008365
1001 Bishop Street, Ste. 710
Honolulu, HI
Phone: (808) 762-7644
Email: doris@dorislumlaw.com

ATTORNEYS FOR DEFENDANT,
CHRISTOPHER MAZZEI

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA §
§
v. § No. 1:22cr00045-JMS
§
CHRISTOPHER MAZZEI §

DEFENDANT’S SENTENCING MEMORANDUM

The defendant, Christopher Mazzei, through counsel, submits this sentencing

memorandum. He first addresses his prior objection to PSR ¶ 44 (which was rejected

by the probation officer) and then discusses information relevant to this Court’s

ultimate sentencing decision.

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Case 1:22-cr-00045-JMS Document 103 Filed 01/02/25 Page 2 of 11 PageID.835

I.
PSR ¶ 44 Erroneously Enhances Mr. Mazzei’s Offense Level by Three Levels
Under USSG § 2S1.1(a)(1) &USSG § 2B1.1(b)(17)(A).

The PSR, cross-referencing USSG § 2B1.1(b)(17)(A), has applied a three-

level enhancement – from offense level 21 to offense level 24 – after finding that

“the defendant derived more than $1,000,000 in gross receipts from one or more

financial institutions. . . .” PSR ¶ 44. As the defendant previously has contended,

in view of Application Note 13(A), the PSR errs by applying this enhancement.

The probation officer has agreed with the government’s response in

opposition to Mr. Mazzei’s objection. The government contended that:

The gross receipts enhancement applies to Christopher Mazzei because
he obtained the full amount of the fraud proceeds of the wire fraud
conspiracy, either directly or indirectly. Application Note 13(A) to
Section 2B1.1, explains that: “For purposes of subsection (b)(17)(A),
the defendant shall be considered to have derived more than $1,000,000
in gross receipts if the gross receipts to the defendant individually,
rather than to all participants, exceeded $1,000,000.” Application Note
13(B) to Section 2B1.1 defines “gross receipts from the offense” to
“include[] all property, real or personal, tangible or intangible, which is
obtained directly or indirectly as a result of such offense.” The
Application Note cites to Title 18, United States Code, Section
982(a)(4), as the source of the standard. Id.

Reviewing a predecessor guideline with the same application note
guidance, the Ninth Circuit confirmed that the calculation of “gross
receipts” that must reach the $1,000,000 threshold to trigger the
enhancement is “the amount derived from the offense by each
defendant individually,” both “directly and indirectly.” United States v.
Kohli, 110 F.3d 1475, 1477 (9th Cir. 1997) (former U.S.S.G.
2F1.1(b)(6)). “The critical factor in the application of [the gross
receipts] enhancement is that it turns on the culpability of the individual
defendant.” Id. . . .

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The gross receipts enhancement applies to Christopher Mazzei because
he is individually culpable for the wire fraud conspiracy, and because
he received and had control over the full amount of the fraud proceeds.
. . . The fraud proceeds derived from the conspiracy is chargeable to
Christopher Mazzei individually, directly or indirectly, as a result of the
offense. . . . Christopher Mazzei had control over the full amount of
$1,365,000 fraud proceeds that the Mazzeis received as a result of the
conspiracy through his submissions. Accordingly, “[f]or the purposes
of subsection (b)(17)(A), [Christopher Mazzei] shall be considered to
have derived more than $1,000,000 in gross receipts.” App. Note 13 to
U.S.S.G. § 2B1.1(b)(17)(A). . . .

Government’s Sentencing Memorandum, at 5-6.

The government’s focus on the language “directly and indirectly” in the

Application Note is a red herring. The language in the Application Note that

matters is “individually” versus “jointly.” Any “joint” receipt of ill-gotten

funds by a defendant and another coconspirator cannot be added to the

defendant’s “individual” receipt to reach the $1,000,000 minimum amount

triggering the enhancement. See United States v. Cano-Flores, 796 F.3d 83,

92 (D.C. Cir. 2015) (“The [application] notes explain that § 2B4.1(b)(2)(A)[1]

encompasses all property obtained ‘directly or indirectly’ and also that the

defendant is deemed to have ‘derived’ only sums received ‘individually.’”)

(emphasis added).

1
The exact same “gross receipts” enhancement appears in USSG § 2B4.1, the bribery guideline.

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In this regard, the government errs by citing United States v. Kohli, 110

F.3d 1457 (9th Cir. 1997), in support of its position. In Kohli, the Ninth

Circuit actually rendered a decision that favors Mr. Mazzei’s position – by

holding that “no part of the amount found to have been derived by one

defendant can be counted as having been derived by another defendant.” Id.

at 1477; see also United States v. Weidner, 437 F.3d 1023, 1046 (10th Cir.

2006) (citing Kohli for the proposition that “the same receipts cannot be

counted against more than one defendant”). Therefore, if funds are received

by one member of a conspiracy, individually or jointly along with another

member of the conspiracy, those funds cannot be attributed to any other

member of the conspiracy as an “individual” receipt for purposes of §

2B1.1(b)(17)(A).

In the present case, as part of their conspiracy, both defendants jointly received

the around $650,000 of Paycheck Protection Program (PPP) funds wired to their

joint bank account. See PSR ¶ 22 (“Customers Bank approved the BHE PPP loan

application and wired $92,500 to Pacific Premier Bank checking account #8237

controlled by [Mr. and Mrs.] Mazzei[], under the name of BHE, doing business as

GOTG.”) (emphasis added); PSR ¶ 23 (“. . . Northeast Bank approved the PPP loan,

and on 04/27/2020, wired $562,500 to the Mazzeis’ Pacific Premier Bank account

#8237.”) (emphasis added); PSR ¶ 24 (“Only BOH, after approving the PPP loan

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application, mailed a cashier’s check to C. Mazzei in the amount of $710,332.”).

See also PSR ¶ 25 (noting “the Mazzeis” jointly received $562,500 and $92,500 –

first two cells of the box under “Transferred to/Signatories”).

If both the Mazzeis jointly received those two amounts, Mr. Mazzei could not

have “individually” received those two amounts. Jointly and individually are

mutually exclusive. Therefore, the government and probation officer have erred by

adding the $710,332 received by Mr. Mazzei (as a cashier’s check from the Bank of

Hawaii) to the other two amounts received – to get Mr. Mazzei to at least $1,000,000

for purposes of the “gross receipts” enhancement.

Remarkably, in Mrs. Mazzei’s plea agreement, the government stated that all

of the PPP funds were received jointly:

The purpose of the conspiracy was for ERIN MAZZEI and Christopher
Mazzei to obtain money from the PPP and participating lenders by
submitting a false and fraudulent loan application and supporting
documents on behalf of each of three companies that they owned, while
concealing the fact that they were submitting multiple PPP loan
applications. As a result of the scheme, ERIN MAZZEI and
Christopher Mazzei obtained approximately $1,365,000.00 in PPP
funds to which they were not entitled, which they used to pay for
personal expenses and an unallowable new business venture. . . . Upon
receiving the aforementioned PPP loan funds, Christopher Mazzei
and ERIN MAZZEI moved the funds into their bank accounts and
began spending the funds on unallowable personal and other expenses.

ECF No. 79, at 7, 12 (emphasis added).

Although Mrs. Mazzei may have received some of the funds (i.e., $710,332)

“indirectly,” she still received the funds jointly with Mr. Mazzei. For that reason,

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the “gross receipts” enhancement does not apply to either defendant because neither

“individually” received at least $1,000,000.

After reducing Mr. Mazzei’s total offense level by three levels – based on the

foregoing objection – his final offense level should be 17 rather than 20. Based in a

Criminal History Category of I, his advisory sentencing guideline range should be

24-30 months rather than 33-41 months.

II.
Mitigating Factors in Mr. Mazzei’s Case

Recognizing that he is precluded by the plea agreement from seeking a

downward departure or variance, Mr. Mazzei nevertheless discusses the mitigating

factors in his case for two reasons. First, those factors militate in favor of a sentence

of the low end of the advisory guideline range (if this Court decides to sentence him

within that range). And, second, such factors may be relevant to this Court’s

sentencing decision under 18 U.S.C. § 3553(a) if this Court sua sponte determines

to impose a sentence that does not fall within that advisory range. See Gall v. United

States, 522 U.S. 38, 49-50 (2007) (“[A] district court should begin all sentencing

proceedings by correctly calculating the applicable Guidelines range. . . . The

Guidelines are not the only consideration, however. . . . [T]he district judge should

then consider all of the § 3553(a) factors . . . and must make an individualized

assessment based on the facts presented.”).

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Christopher Mazzei is a first-time, non-violent offender who – as the U.S.

Sentencing Commission’s studies have shown2 – poses an extremely low risk of

recidivism. He is a devoted father to two young sons. He intentionally has avoided

the “sins of the father” by acting as a very different parent from his own father. PSR

¶¶ 65, 67. Other than his aberrational actions during the early days of the COVID

pandemic (resulting in the charges in this case), he has worked very hard to build

successful businesses during the past two decades – including his current fitness

business – and be a productive member of society. PSR ¶¶ 82-86. Finally, he has

worked to pay the restitution in this case and will continue to do so until every penny

is repaid.

Above all else, Christopher Mazzei is a family man – a devoted husband

father:

2
The Commission’s two recidivism reports – The Effects of Aging on Recidivism Among Federal Offenders
(Dec. 2017), and The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders
(Mar. 2017) – are available at:

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2017/20171207_Recidivism-Age.pdf

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2017/20170309_Recidivism-CH.pdf.

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The attached character letters (Appendix A)3 demonstrate the many positive

qualities of Mr. Mazzei. Among the things that his friends and family say about

him:

• “Throughout the years, Chris has demonstrated nothing but integrity,
commitment, and compassion. He is always offering help to someone and
will give the shirt off his back to those less fortunate. His selflessness reaches
all of his friends and acquaintances in times of need. One of the most

3
Also attached in Appendix A is Mr. Mazzei’s letter to this Court.

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remarkable traits I’ve observed in Chris is his unwavering dedication to his
family.” (Marisa Haarsma, Chris’s longtime friend)

• “If it wasn’t for Chris Mazzei, I would be dead. My name is Matt Gaines
and I am the owner of MG Sports Supplements located in San Luis Obispo. I
have known Chris for over 20 years. I was a groomsman in his wedding to
Erin. Years ago, I had a leg injury and was prescribed Oxycodone for the
pain. This lead me down a horrible road where I almost lost my business and
contemplated suicide. Chris was always there for me and did as much as he
could to help me through those tough times. His continued presence and never
giving up on me saved my life.” (Matt Gaines)

• “Throughout the[] years, one constant has stood out: Chris’s unwavering
devotion to his family. He is a doting father and a committed husband who
always puts the needs of his family first, often ahead of personal or
professional interests.” (PJ Haarsma, a friend and professional colleague)

• “He is a loving father, a dedicated husband, and a kind-hearted individual.
I am proud of the man he has become.” (Reese Davies, Chris’s step-father)

• “Despite the challenges he faced in his relationship with his father, Chris
grew up to an incredibly loving and dedicated father himself. He is deeply
involved in the lives of his two sons, Luca and Nico.” (Vicki Mazzei, Chris’s
mother)

• “Chris is . . . a very devoted father to his two sons, something that was
missing in his life growing up . . . .” (William Donahue, Chris’s father-in-law)

• “Chris’s strongest quality is his devotion to his wife Erin and his children,
Luca and Nico. I have seen him time and time again doing things out of
complete love. He would sacrifice his own life for them.” (Leanne Donahue,
Chris’s mother-in-law)

• “Family is of utmost importance to Chris and Erin. Erin consistently serves
as a room parent for both of their sons’ classes, while Chris volunteers at his
kids’ school, helping with events like walk-a-thons, overnight camps, and
end-of-school-year parties. He’s also actively involved in daily school drop-
offs and pick-ups. I once asked Chris why both he and Erin are always
together for these daily routines. His response was that, despite the repetition
and tedium, they don’t want to miss any of the small moments of their kids’

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lives. They want their children to know that they are always there for them.”
(Jeremy Engle, Chris’s longtime friend)

***

For the foregoing reasons, Mr. Mazzei requests that this Court sustain his

objection to the PSR.

DATED: Honolulu, Hawaii, January 2, 2025.

Respectfully submitted,

COGDELL LAW FIRM, PLLC

By: /s/ Dan L. Cogdell
Dan L. Cogdell
State Bar No. 04501500
712 Main. St., Suite 2400
Houston, Texas 77002
Telephone: (713) 426-2244
Email: dan@cogdell-law.com

THE LAW OFFICE OF DORIS
LUM, LLC

By: /s/ Doris Lum
Doris Lum
JD No. 008365
1001 Bishop Street, Ste. 710
Honolulu, HI
Telephone: (808) 762-7644
Email: doris@dorislumlaw.com

ATTORNEYS FOR DEFENDANT,
CHRISTOPHER A. MAZZEI

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CERTIFICATE OF SERVICE

I certify that the foregoing document was served on all counsel of record in
this case when I e-filed it using this Court’s CM/ECF system.

/s/ Dan L. Cogdell
Dan L. Cogdell

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