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Home Source documents Defendant’s Sentencing Memorandum — United States v. Andrew Tezna, No. 1:21-cr-77-CMH (Dkt. 18, E.D. Va.)

Defendant’s Sentencing Memorandum — United States v. Andrew Tezna, No. 1:21-cr-77-CMH (Dkt. 18, E.D. Va.)

Summary

Andrew Tezna's sentencing memorandum of July 12, 2021, filed by attorney Page A. Pate, asks for probation with home detention after Tezna pleaded guilty to one count of bank fraud for fraudulent loan applications seeking CARES Act funds. It agrees with the Probation Office and the government that the advisory guidelines range is 21 to 27 months. Tezna received $288,234.00 and is accountable for $357,734.00 because two applications were rejected; the memo says most of the money paid down family debt and singles out a $6,450.00 payment to a dog breeder as the only expenditure that appears excessive. The defense rests the request on Tezna's son, who is autistic, and notes the loss of a NASA Senior Executive Service post paying $181,000.00 a year. It points to a 12-month sentence and a time-served sentence in US v. Monika Jaworska and Tarik Jaafar.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

                  IN THE UNITED STATES DISTRICT COURT
                  FOR THE EASTERN DISTRICT OF VIRGINIA
                          ALEXANDRIA DIVISION

UNITED STATES OF AMERICA,      )
                               )
v.                             )
                               )                CASE NO.: 1:21-cr-77-CMH
ANDREW TEZNA,                  )
                               )
     Defendant.                )
_______________________________)

               DEFENDANT’S SENTENCING MEMORANDUM

      Defendant Andrew Tezna (“Mr. Tezna”) hereby respectfully submits this

Sentencing Memorandum to assist the Court in determining a reasonable sentence

that is sufficient, but not greater than necessary, to satisfy the factors set forth in 18

U.S.C. § 3553(a).

      We agree with the Probation Office and the Government that the applicable

advisory sentencing guidelines range in this case is 21 to 27 months. We believe,

however, that a substantial downward variance from that advisory range would be

the appropriate sentence for Mr. Tezna primarily due to the unique family

circumstances present in this case.

      1. The nature and circumstances of this offense support a substantial
         variance from the advisory sentencing guidelines range.

      Mr. Tezna entered a guilty plea to one count of bank fraud for filing

fraudulent loan applications in an attempt to receive CARES Act funds. The
stipulated offense conduct is accurately stated in the PSR. (PSR ¶ ¶ 34-52).

Although the total amount actually received by Mr. Tezna was $288,234.00, he is

being held accountable for a total of $357,734.00 because of two loan applications

that were rejected and not funded. Mr. Tezna has not disputed the amount of

intended loss in this case, nor has he attempted to provide any excuse for his

conduct. From the moment he was first approached by investigators, Mr. Tezna

fully admitted responsibility for what he did. (PSR ¶ 56).

      In an attempt to document how the loan proceeds were spent by Mr. Tezna,

the Government identified a number of specific expenditures that would have not

been authorized by the CARES Act program. (PSR ¶ ¶ 39, 43, 47). As the PSR

shows, and as Government points out in its Position Statement (Doc 16), the vast

majority of the CARES Act loan proceeds received by Mr. Tezna were used to pay

down debt incurred by him and his family. There is no record here of exceptionally

lavish spending on luxury items.

      Although the loan proceeds were commingled with Mr. Tezna's legitimate

income, the PSR identifies a few specific transactions that they attribute to his use

of the CARES Act funds. They include paying off an auto loan for a 2015 Toyota

Minivan, paying off a loan for their swimming pool, a down payment for the

family SUV, around $7,000.00 worth of home improvements, and $2,500.00 in

payments for their existing timeshare at Disney. The only expenditure that appears



                                          2
excessive is a $6,450.00 payment to a dog breeder (PSR ¶ 47). Understandably, the

Government included this specific expenditure in their press release announcing

Mr. Tezna's guilty plea in this case. (Exhibit 14). Counsel inquired about this

transaction as was informed by the Tezna family that this money went to buy a

new puppy for the children because their 14-year-old lab was in poor health and

expected to die soon. Yes, they bought an expensive dog – a French bulldog that

was supposed to be “hypoallergenic” –when they probably could have adopted one

from the local shelter. But this expense, like many of the others, was consistent

with Mr. Tezna's desire to keep his wife and kids happy. Mr. Tezna did not use the

loan proceeds to buy himself expensive jewelry, to fund personal luxury travel, or

to acquire any other selfish expenditure like the ones the Court has no doubt seen

in other fraud cases. He spent his money on his wife and kids.

      There is no question that Mr. Tezna’s actions in this case were driven by the

significant amount of unsecured debt he had burdened his family with over the

years. Despite what appears to be a background in accounting and finance, he is

admittedly very bad at managing his own money. (PSR ¶ 57; Exhibit 13). He also

tends to overspend on his family, probably in part due to his own personal

upbringing. (Exhibit 1). But Mr. Tezna’s actions in this case do not in any way

suggest that he is some sort of serial fraudster or is at heart a deceitful person who

would likely commit fraud again.



                                           3
        The availability of CARES Act funds, and the relatively easy application

process, presented opportunities for both the traditional, squirrely fraudsters and

people like Mr. Tezna who were just living well above their means. This does not

excuse Mr. Tezna's behavior, but it would be a mistake to put him in the same

category of people who are always looking for an opportunity to steal from

someone to enrich themselves. There is also no evidence, despite the Government's

suggestion in its press release (Exhibit 14), that the CARES Act money obtained

by Mr. Tezna in any way prevented a qualified applicant from also receiving a

loan.

        2. Mr. Tezna’s personal history and family responsibilities support a
           substantial variance from the advisory sentencing guidelines range.

        Andrew Tezna moved to the United States from Colombia when he was 13-

years old. (PSR ¶ 87). Even as a teenager, he was a hard worker. He helped his

mother build a residential cleaning business shortly after the family arrived from

Colombia. (Exhibit 1). He worked extremely hard to learn English so that he could

speak like an American, and he excelled at school. He was involved in many

extra-curricular activities, including participating on the track team where he went

from an overweight kid who could not run a mile to winning an award for the most

improved athlete. He then went to college at George Mason University where he

got his degree in four years while also working full-time to help support himself.

(PSR ¶ 99; Exhibit 1).

                                          4
      As the Court may be aware, Mr. Tezna worked for six years at NASA. (PSR

¶ 102). He quickly worked his way up within that agency to become a Senior

Executive Service (SES) employee and was named Director of Policy. His

performance reviews at NASA were exemplary and he was sent by that agency to

attend Harvard University's Senior Executive Fellowship Program. As a result of

this offense, Mr. Tezna lost that position and the $181,000.00 annual salary it

provided. He is currently working as a full-time loader at Lowes Home

Improvement Center making $14.00 per hour (PSR, ¶ 101). Prior to being charged

with this offense, Mr. Tezna has had absolutely no involvement with the criminal

justice system either as an adult or a child. (PSR ¶ ¶ 79-84).

      Although this is his first experience with the criminal justice system, Mr.

Tezna has never attempted to hide or minimize what he did with his family, his

employer, or his close friends. In fact, while this case was pending, Mr. Tezna

joined a support group for white collar offenders that has a stated purpose of

helping people accept responsibility for their actions, acknowledge the pain and

loss they have caused to others, and attempt to rebuild their lives. Mr. Tezna has

fully participated in this group and has received the support of its founder, Rev.

Jeff Grant.




                                          5
      In his letter to the Court, Mr. Grant writes

      "Andy has participated in weekly online support group meetings, and in
      other online meetings we hold. He has assertively taken on increasing
      responsibility in the support group and is involved in the betterment of his
      fellows. He has regular phone and video calls with other members of our
      support group. ... [Andy] was incredibly well received because of his candor
      and absolute acceptance of responsibility for his behavior and crimes. It is
      not often that someone in the beginning of their criminal justice journey can
      possess the kind of self-awareness, dedication to his recovery and desire to
      make amends to those he harmed that Andy has shown.”
      (Exhibit 5).


      A number of family members and close friends have provided letters in

support of Mr. Tezna that are attached to this memorandum. (Exhibits 1-12).

Reading these letters, it is obvious that everyone who knows Mr. Tezna considers

him to be a dedicated family man.

      Mr. Tezna has two small children - a 6-year-old boy (Mason) and a 3-year-

old (Emma). (PSR ¶ 89). Having children was not easy for Mr. Tezna and his wife.

In her letter to the Court, Ms. Tezna writes about how her husband helped her

through "numerous pregnancy losses, including one in the second trimester where

I almost lost my life." (Exhibit 1).

      Fortunately, Mr. and Ms. Tezna were eventually blessed with two wonderful

children who are the focus of their life. Emma is a normal, rambunctious, and

perfectly well-adjusted little girl. Mason, however, is autistic and has a number of




                                          6
emotional and developmental challenges that require a significant amount of extra

support. (PSR ¶ 89; Exhibits 1 and 3).

      In her letter to the Court, Ms. Tezna describes her son in this manner

      “Our son is a special needs child, diagnosed as having autism, ADHD, and
      extreme separation anxiety. He has fully bonded and relies on his father to
      keep himself feeling well, safe, supported and grounded. ... I am very
      worried and concerned for our son's ability to handle the loss of his father
      for any length of time…Mason's world is grounded only by maintaining a
      consistent environment, he relies on daily pattern activities which are tasks
      shared by Andy and I. Andy prays with our kids every night and is adamant
      that they are grateful for their life and teaches them to pray for special
      people in their life.”
      (Exhibit 1).

      As the Court may be aware, Mr. Tezna and his family relocated to Florida

after his guilty plea in this case. Given the logistics of having his family travel

back to Virginia for Court, Ms. Tezna recorded a short video with her children for

the Court's consideration. (Please click on the picture to access the video.)




                                           7
      Mr. Tezna understands that he has failed his family and his country by

committing this offense. He knows that put himself in this position, and that no one

else is to blame for the possibility that he will be separated from his family as a

consequence of his actions. But none of that will make any difference to his

children, especially Mason. There is no question that, if Mr. Tezna is sentenced to

custody, Mason will suffer. Mason will suffer much more than most children of

incarcerated parents because of his disability and his exceptionally close

relationship with his father. Because Mason is the child he is, even a short

separation from his father may have potential life-long consequences.




                                           8
      Ms. Tezna describes the relationship between Mason and his father best, but

close family friends have also observed their closeness. In his letter to the court,

Charles LaRock writes

      "I have had the opportunity to watch [Andy] become and grow as a father
      for almost 7 years now. ...Within the last year, his son Mason was diagnosed
      to be on the autism spectrum. Andy has been nothing but a loving and
      supportive father to Mason during the entire time. Andy and Mason have a
      wonderful and special relationship. They are best buds."
      (Exhibit 3).

      In addition to the time and attention needed to care for Mason, Mr. and Ms.

Tezna have been actively involved in a support group for special needs children.

Nicole LaRock writes of a particular occasion where Andy played a special role

      "When we were providing entertainment for a fairytale prom for special
      needs children and couldn't find a volunteer to play 'Prince Charming,'
      Andy happily put on the costume and smiled and danced the night away,
      both supporting his wife's project and providing a magical experience for
      kids who very much deserved a night of magic."
      (Exhibit 4).

      Mr. Tezna's love and concern for his family extends beyond his wife and

kids. In her letter to the Court, his mother-in-law writes

      "[Andy], without hesitation, offered to not only take me in, but also my own
      mother who was in the advanced stages of Dementia and Alzheimer's. There
      were many times in the end with great humility I watched him help her as
      she lost her ability to perform even the most basic of tasks like walking to
      her bed or using the restroom. With much tenderness and care, he aided her
      ensuring that she never once felt less than the young human being she had
      once been. I will never forget the love and support he provided for her and
      the way her eyes lit up with joy when he would check on her, spend time with
      her and bring her meals."
      (Exhibit 2).

                                           9
      It surely comes as no surprise to the Court that a defendant's lawyer is

suggesting that a sentence of incarceration will cause the defendant's family to

suffer, and that this suffering should be taken into consideration when imposing a

sentence. Defendant's families are often additional victims of defendants’ crimes.

In the usual case, Counsel understands that this would not be a sufficient reason for

a sentence reduction. But this case is exceptional. Mr. Tezna knows he put himself

in this position and he regrets it every day, and it is appropriate that he be

punished. But Mason, who is not only autistic but has extreme separation anxiety,

will never understand why he's also being punished. He will only suffer the

absence of a loving and devoted father.


      3. A custodial sentence is not necessary to satisfy the need for general
         and specific deterrence in this case.

      Mr. Tezna has not yet been sentenced by this Court, but he is already

suffering the consequences of his actions. He went from a coveted SES position at

a revered agency like NASA to a stock worker at a Lowe’s home-improvement

store. It is highly unlikely he will ever again hold a position of trust given his

conviction. Before he worked with NASA, he was employed by accounting and

consulting firms who generally run away from anyone with a fraud conviction. His

career is over, his future employment prospects are dim, and he will now have to

support his family with the baggage of a federal fraud conviction. It is going to be

                                           10
even more difficult for Mr. Tezna to start a new career when anyone who

"Googles" his name will see a number of news articles about his fraud conviction

generated primarily by the Government's press release.

      Of course, the Government has every right to issue a press release to

publicize convictions it has obtained in connection with CARES Act fraud. We

understand that media attention to this and similar cases provides general

deterrence to individuals who may be inclined to consider applying for money that

they are not entitled to receive. In fact, we think the goal of deterrence is mostly

achieved by this public conviction, the loss of a great job, and the other collateral

consequences it has created.

      The sentences imposed in other CARES Act fraud cases, including a recent

case before this Court, also provide sufficient deterrence to the community. The

case recently before this Court most similar to Mr. Tezna’s appears to be a case

where one defendant received a sentence of "time served" and the other defendant

received a 12-month sentence. (US v. Monika Jaworska and Tarik Jaafar, Docket

No: 1:20-cr-00185-CMH). In that case, the defendants appear to have been

involved in a much more significant and extensive scheme fraud than the loans

obtained by Mr. Tezna. Regardless, the sentences imposed in that case, and the

many other CARES Act fraud cases in this district and elsewhere, provide




                                          11
sufficient general deterrence that would not be materially advanced or diminished

by any sentence the Court may impose in this case.

                                 CONCLUSION

      For these reasons, Counsel for Mr. Tezna respectfully suggest that a

significant downward variance from the Advisory Guidelines is warranted in this

case. Specifically, a term of probation with home detention would allow Mr. Tezna

to continue to maintain his family responsibilities and would be sufficient but not

greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a).


      This 12th day of July, 2021.


                                              /s/ Page A. Pate
                                              Page A. Pate
                                              PATE, JOHNSON & CHURCH, LLC
                                              101 Marietta Street, N.W.
                                              Suite 3300
                                              Atlanta, GA 30303
                                              404-223-3310 (office)
                                              404-223-3392 (fax)
                                              Page A. Pate




                                         12
                          CERTIFICATE OF SERVICE

      This is to certify that I have this day electronically filed the foregoing pleading

with the Clerk of Court using the CM/ECF system which will automatically send

email notifications of such filing to all counsel of record in this matter.

      This 12th day of July, 2021.

                                               /s/ Page A. Pate
                                               Page A. Pate
                                               PATE, JOHNSON & CHURCH, LLC
                                               101 Marietta Street, N.W.
                                               Suite 3300
                                               Atlanta, GA 30303
                                               404-223-3310 (office)
                                               404-223-3392 (fax)
                                               Page A. Pate




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