Defendant's Sentencing Memorandum, United States v. Jamie McGowen, No. 3:22-cr-00360 (D. Or.), Doc. 49 (May 7, 2025)

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A Sentencing Memorandum filed May 7, 2025 as Document 49 in United States of America v. Jamie McGowen, No. 3:22-cr-00360-AN, in the U.S. District Court for the District of Oregon, Portland Division. Ms. McGowen submits it under Fed. R. Crim. P. 32 in support of a variant sentence. It states that the parties maintained opposing positions on the sophisticated means enhancement, to which the defendant objects, and gives guideline ranges of 30-37 months (level 19) or 37-46 months (level 21). It states that the defendant pleaded guilty to one count of wire fraud, one count of bank fraud and two counts of money laundering, agrees to pay $2,072,860 in restitution, and asks the Court to consider a below-guideline sentence. The memorandum carries s/ signatures for Damien Munsinger, Katryna Lyn Spearman and Serguel Mawuko Akiti.

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Case 3:22-cr-00360-AN Document 49

s/ Damien Munsinger
Damien Munsinger, Esq.

Or. Bar # 124022
damien@kleinmunsinger.com

Klein Munsinger LLC
1215 SE 8th Ave., Ste. F
Portland, OR 97214
503.568.1078

S/ Katryna Lyn Spearman
Katryna Lyn Spearman, Esq.
Ga. Bar # 616038
kspearman@lowtherwalker.com

S/ Serguel Mawuko Akiti
Serguel Mawuko Akiti, Esq.
D.C. Bar # 1631134
sakiti@lowtherwalker.com

Lowther | Walker LLC

101 Marietta St. NW, Ste. 3650
Atlanta, GA 30303
404.496.4052

Attorneys for Defendant
Jamie McGowen

Sentencing Memorandum 1

Filed 05/07/25

Page 1 of 16
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION
UNITED STATES OF AMERICA, 3:22-CR-00360-AN-1
Plaintiff,
Vv. SENTENCING MEMORANDUM
JAMIE MCGOWEN,
Defendant.

Ms. JAMIE MCGOWEN, pursuant to Fed. R. Crim. P. 32, respectfully
submits the following position in support of a variant sentence.
I. Sentencing Guidelines

A. Impact of Plea Agreement on Sentencing Guidelines Range

Ms. McGowen entered into a negotiated plea agreement with the
Government wherein the parties stipulated many enhancements and maintained
opposing positions on applying the sophisticated means enhancement. Under
the plea agreement, Ms. McGowen concurred that Counts 1 (wire fraud) and 3
(money laundering) are grouped, resulting in a Total Offense Level of 17. PSR §
9. The parties further stipulated that Counts 5 (bank fraud) and 7 (money
laundering) are grouped, resulting in a Total Offense Level of 19. PSR § 10.
Should the Court concur with the Government that sophisticated means applies,

the Total Offense Level would increase to 21. The sentencing guidelines range on

Sentencing Memorandum 2
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these would be 30-37 months (level 19) or 37-46 months (level 21). The
Government further binds itself to request a low-end sentence.

Probation applies USSG § 3D1.4 to the offense level calculation. Because
the two groups are two offense levels apart, each is counted as one “unit.”
U.S.S.G. § 2D1.4(a). As a result, two offense levels are added to the higher of the
two groups. The final offense calculation becomes level 21 without applying the
sophisticated mean enhancement and level 23 with the enhancement.

Therefore, though Ms. McGowen understands that the stipulations are not
binding on the Court and that the Court ultimately determines the calculation of
the range, Ms. McGowen respectfully requests that her mental state regarding
the guideline range be kept in mind for the duration of the forthcoming
proceedings.

B. Outstanding Objections

The Government believes that Ms. McGowen qualifies for the
sophisticated means enhancement cause she herself did not physically alter
documents. However, this is not the case. Ms. McGowen objects to the
enhancement because falsifying documents is basic and inherent to an ordinary
bank fraud case. There is nothing “especially complex or intricate” about it.
U.S.S.G. § 2B1.1 n.9(B). Offenders without college educations, those without
special computer applications, and those without technical knowledge have all

engaged in similar behaviors throughout the pandemic loan applications.

Sentencing Memorandum 3
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Although the 9th Circuit has found this enhancement applicable to
conduct less sophisticated than the list articulates in the application note (see
United States v. Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013)), courts have set
limitations on state applications. For example, in 2001, the Circuit found that
because smuggling necessarily involves concealment, sophisticated means
requires more than what is necessary to commit the crime. United States v.
Montano, 20 F.3d 709 (9th Cir. 2001). Similarly, Ms. McGowen simply would not
have qualified for the loans had she not caused falsified documents to be filed;
therefore, the commission of the crime could not have been completed without
this action, so it is not sophisticated.

Furthermore, the Circuit stated that “the intent of this enhancement is to
punish the more cunning and scheming defendants who employ complex and
involved means so as to avoid or delay being found out. Thus, this enhancement
should be reserved for those defendants who employ more complex or intricate
means than those typically used in an ordinary [] fraud scheme.” United States v.
Cooper, Nos. 02-40069-01-SAC, 02-40069-02-SAC, 02-40069-3-SAC, 2006WL 28874
at *16 (D. Ks. Jan. 24, 2006). In undersigned counsel’s experience, the vast
majority of offenders in COVID-loan fraud cases generated falsified documents
to support their fraudulent application. It is simply impractical to say that every
person who commits PPP fraud has used sophisticated means when there is an

obvious spectrum of offenders.

Sentencing Memorandum 4
Sister circuits have concurred. The 4th Circuit stated, “the [sophisticated
means] enhancement requires some means of excursion that separates the
offense before us from the ordinary or generic.” United States v. Jinwright, 683
F.3d 471, 486 (4th Cir, 2012). The 4th Circuit further found that the Government
failed to establish that the defendant used sophisticated means, where the
defendant used forged checks and a stolen identity to attempt to defraud a bank,
because virtually all bank fraud involved misrepresentation, including the
unauthorized acquisition and use of another’s information. United States v.
Adepoju, 756 F.3d, 257 (4th Cir. 2014). The Court in Adepoju further stated that
“sophistication requires more than the concealment or complexities inherent in
fraud. Thus, fraud per se is inadequate for demonstrating the complexity required
for enhancement under [the Guidelines].” Id. Finally, the 7th Circuit found that
the adjustment for sophisticated means is warranted only “when the conduct
shows a greater level of planning or concealment than a typical fraud of its
kind.” United States v. Green, 648 F.3d 569, 576 (7th Cir. 2011).

Ms. McGowen submits that the means used in this case are standard
amongst PPP and EIDL fraud cases and that she is no “more cunning and
scheming” nor did she “employ more complex or intricate means than those
typically used in an ordinary” loan fraud scheme. See Cooper, supra.

Ms. McGowen concurs that an error was made between the parties when

calculating the anticipated guidelines in the plea agreement. She respectfully

Sentencing Memorandum 5
requests that the Court consider that Ms. McGowen entered into a plea
agreement in which she anticipated a sentence of 30-37 months,! depending on
how the Court rules on the sophisticated means issue. Ms. McGowen prays that
the Court grant her objection to the application of the sophisticated means
enhancement and find that the Total Offense Level is 21.
II. Statutory Options

Ms. McGowen pleaded guilty to one count of wire fraud in violation of 18
U.S.C. § 1343 (Count 1); one count of bank fraud in violation of 18 U.S.C. § 1344
(Count 5); and two counts of money laundering in violation of 18 U.S.C. § 1957
(Counts 3 & 7). Count 1 is a Class C felony with a maximum prison sentence of
twenty years and a maximum fine of $250,000. Counts 3 and 7 are also Class C
felonies with a maximum prison sentence of ten years and a maximum fine of
$250,000. Count 5 is a Class B felony with a maximum prison sentence of thirty
years and a maximum fine of $1,000,000. There is no mandatory minimum for any

of Ms. McGowen’s charges.

1At a Total Offense Level 19, the guideline range is 30-37 months; at Total Offense Level 21, it is
37-46 months. The Government bound itself to request the low end of the guidelines; therefore,
Ms. McGowen anticipated a sentence of either 30 or 37 months. Should the Court use
Probation’s calculations, the low-end guidelines, depending on the ruling on sophisticated
means, would shift to 37 or 46 months.

Sentencing Memorandum 6
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Il. 180U.S.C. § 3553 Factors

A. Nature and Circumstances of the Offense and the History and
Characteristics of Ms. McGowen.

1. Nature and Circumstance of the Offense

Regarding Counts 5 and 7, Ms. McGowen respectfully submits that she
operated several businesses at the start of the unprecedented pandemic. When
the Payroll Protection Program was initiated, Ms. McGowen believed that there
were a sufficient number of employees to qualify for a loan across her
companies. She falsified documents to make it appear that those employees all
worked for one company. She then applied for and was granted a loan for that
company. She used these funds to purchase inventory for her other companies
(such as an RV). Ms. McGowen understood that this was fraudulent behavior,
but, in survival mode, she did not contemplate the gravity of her actions or the
far-reaching impact of these actions at the time of commission.

Regarding Counts 1 and 3, she admits her conduct and is deeply
remorseful for the harm her actions caused. Ms. McGowen is determined to
make amends for her conduct and to make restitution payments on a reliable
schedule.

2. History and Characteristics of Ms. McGowen

Sentencing Memorandum 7
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Ms. McGowen struggles with her mental health. She has expressed
suicidal ideations (PSR, 4/78), and has untreated trauma from when she was
raped by a significantly older man at sixteen (PSR, {j 69).

On top of this, Ms. McGowen is currently in an emotionally and
previously physically tumultuous marriage. Her husband is an alcoholic and has
a history of being physically violent with Ms. McGowen. PSR, {[{{ 70-1. Her
relationship has contributed to her poor mental health and suicidal ideation.
PSR, 78. Her family has expressed concern about Ms. McGowen remaining in
her toxic relationship, but they are also afraid of what he will do to Ms.
McGowen or their shared son if she leaves. PSR, 4/70.

The primary reason Ms. McGowen has not acted on her suicidal ideations
is her love for her son, which keeps her going. PSR, {| 78. She grieves the fact that
she has put stress on his life with the current offense and does not wish to cause
him further pain. Id. Her son and husband have a tense relationship. Ms.
McGowen is deeply concerned about leaving her son alone with her husband for
an extended period while she serves a custodial sentence. PSR, 4/71.

B. Protecting the Public from Ms. McGowen’s Potential Future

Criminal Conduct and Providing Adequate Deterrence to
Criminal Conduct
1. Specific Deterrence

Ms. McGowen is forty-three years old and has a criminal history score of

zero. PSR, 463. As Probation calculates, Ms. McGowen’s guideline range is, at the

Sentencing Memorandum 8
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low end, approximately four years in prison, so by the time she exits prison, she
will be approximately forty-seven. PSR, 487. Age and criminal history, together,
are strong predictors of recidivism.” Of the people between forty and forty-nine
when released from custody in 2010, only 22% recidivated. Id.

Moreover, defendants sentenced initially on fraud charges had the lowest
recidivism rates out of any offense category. Id. at 32. Also, of all federal
offenders released in 2010, only 4% were re-arrested with fraud charges. See Id. at
23. Finally, Ms. McGowen has a college degree. Offenders released in 2010 who
had college degrees only recidivated 19.6% of the time. Id. at 31. In sum, Ms.
McGowen is in a demographic with some of the lowest recidivism rates. A
below-guidelines sentence will suffice for specific deterrence because she is
statistically unlikely to commit another crime. Id.

Next, a term of incarceration would damage Ms. McGowen’s family
structure. Studies have shown that children with incarcerated parents suffer
emotionally, financially, and educationally.? That, combined with the above-
referenced tense relationship between Ms. McGowen’s son and her husband,

means that any custodial sentence will sufficiently deter her from committing

2 See Ryan Cotter, et al. Recidivism of Federal Offenders Released in 2010. U.S. Sent’g Comm’n (2021)
at 30.

3 Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, 278 Nat'l.
Inst. J. (2017).

Sentencing Memorandum 9
Case 3:22-cr-00360-AN Document 49 _~ Filed 05/07/25 Page 10 of 16

another crime, because she will have to live with the knowledge that her actions
caused her son’s suffering.

Finally, extensive criminological research has shown that strong family
support predicts desistance from crime for defendants upon release, alongside
stable work, transformation of identity, and aging.* See Mowen, et al., “Family
Matters.” Despite the instant proceedings, Ms. McGowen is fortunate to have
parents and a sister who love and support her. PSR, {| 68. She has plans to leave
her toxic relationship after she serves her custodial sentence to live close to her
family instead. PSR, {| 73. Ms. McGowen’s family support will reduce her
chances of recidivism; a below-guidelines sentence will suffice for specific
deterrence.

2. General Deterrence

Empirically, criminologists have shown that harsher sentences do not
deter the public from committing crimes; instead, the certainty of getting caught
has a more significant general deterrent effect. See Loeffler and Nagin, “The
Impact of Incarceration on Recidivism.” The fact that Ms. McGowen was arrested

and convicted will be the most deterrent factor in this case to prospective

4 See Thomas J. Mowen, et al., Family Matters: Moving Beyond “If’ Family Support Matters to
“Why” Family Support Matters during Reentry from Prison, 56(4) J. of Rsch. In Crime and Deling.
483; see also John H. Laub & Robert J. Sampson, Understanding Desistance from Crime, 28
Crime and Justice, 1 (2001).

Sentencing Memorandum 10
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criminals, not the length or severity of her sentence. Id. A sentence below the
guidelines will suffice for general deterrence.

C. Reflect the Seriousness of the Offense, Promote Respect
for the Law, and Provide Just Punishment

A sentence below the guidelines will suffice to reflect the seriousness of the
offense, promote respect for the law, and provide just punishment.

First, there are severe socioeconomic consequences that stem from
incarceration; on average, people who served time in prison experience a 52%
decrease in subsequent annual earnings. This means that Ms. McGowen will
suffer lifelong financial consequences from any term of imprisonment.
Additionally, Ms. McGowen will have to live knowing that her son will be forced
to live without a mother for a significant time and miss important milestones in
his life. These consequences of incarceration reach beyond the time when Ms.
McGowen is released from custody. Thus, a below-guidelines sentence will
suffice to reflect the seriousness of the offense and provide just punishment,
primarily because Ms. McGowen is a non-violent first-time offender with a low
likelihood of recidivism.

A below-guidelines sentence is also sufficient to promote respect for the

law. Ms. McGowen has shown throughout her pretrial and presentence release

5 See Terry-Ann Craigie, et al., Conviction, Imprisonment, and Lost Earnings How Involvement with
the Criminal Justice System Deepens Inequality, Brennan Center for Justice, N.Y.U. (2020).

Sentencing Memorandum 11
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periods that she can desist from crime, showing great respect for the law. She has
complied enthusiastically with all of her release conditions. Additionally, Ms.
McGowen, as soon as she learned of the proceedings against her, retained
counsel and eagerly entered a plea agreement, saving the Government time and
money on trial. She has exhibited these reformed behaviors even before she has
served any meaningful time in custody. This is also Ms. McGowen’s first offense
and first interaction with the law. The shock of this being her first experience
with incarceration will sufficiently instill a healthy fear of the law, regardless of
the length of her sentence. As such, a below-guidelines sentence is also sufficient
because Ms. McGowen has shown through her actions that she already respects
the law.

D. Substance Abuse and Mental Health Treatment or Vocational
Training

Ms. McGowen respectfully requests a recommendation for mental health
treatment while in custody so that she can move past her childhood trauma and
process her feelings about her toxic marriage.

E. Avoid Unwarranted Sentencing Disparities

The need to avoid unwarranted sentencing disparities is great, particularly
when considering the number of offenders convicted of PPP loan fraud cases.

Notably, the US Sentencing Commission provides valuable statistics.

Sentencing Memorandum 12
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Female offenders are relatively rare amongst federal cases — only 12.9% of
all federal offenders in Fiscal Year 2023 were female.® Of these women, their
average age was 38 (close to Ms. McGowen’s age). Id. Comparatively, women
receive lighter sentences than men; the average sentence issued to women was 32
months compared to 57 months for men (a 44% reduction). Id. Only 28% of
women received a within guidelines sentence, 34.44% received a downward
variance with an average reduction of 59.2%. Id. The remainder of the defendants
received some downward departure under the guidelines. Id. Despite women
facing a national average guideline minimum of 56 months, the average woman
was sentenced to 32 months. Id. Clearly, it is not disparate to give women a
below-guideline sentence.

Amongst fraud cases, the average age of offenders was 43 years old, again,
fairly similar to Ms. McGowen.’ Only 16.3% of defendants received the
enhancement for sophisticated means. Id. Despite an average guideline
minimum of 33 months, the average sentence imposed in Fiscal Year 2023 was 23
months. Overall, only 37.12% of offenders received a within guideline sentence.

Id. Ms. McGowen’s guideline minimum is roughly similar, so the same variance

6 See “USSG - QuickFacts Federally Sentenced Women”,
https://www.ussc.gov/research/quick-facts/federally-sentenced-women, last accessed May 7,
2025.

7 See USSG —“ QuickFacts Theft, Property Destruction, and Fraud”,
https://www.ussc.gov/research/quick-facts/theft-property-destruction-fraud, last accessed
May 7, 2025.

Sentencing Memorandum 13
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would not cause sentencing disparities. Additionally, a whopping 42.12%
received a downward variance with an average reduction of 62.5%. Id.

The combination of data as it relates to fraud and female offenders shows
that a below-guidelines sentence would not cause national disparities.

F. Restitution and Victim Compensation

Ms. McGowen agrees to pay $2,072,860 in restitution. PSR, {| 100.
IV. Letters in Support

Ms. McGowen respectfully submits fifteen letters in support. See Exhibit
A. In these letters, this Court will see that the offense conduct is out of character
for her.
V. Request for Location

Should this Court issue a term of imprisonment, Ms. McGowen
respectfully requests placement as close to her son as possible.
VI. Conclusion

Ms. McGowen, based on the foregoing assertions and argument, prays that

the Court consider a below-guideline sentence.

Sentencing Memorandum 14
Case 3:22-cr-00360-AN

Date: May 7, 2025

Sentencing Memorandum

Document 49

15

Filed 05/07/25 Page 15 of 16

Respectfully submitted,

S/ Katryna Lyn Spearman
Katryna Lyn Spearman, Esq.

S/ Serguel Mawuko Akiti
Serguel Mawuko Akiti, Esq.

s/Damien Munsinger
Damien Munsinger, Esq.
Case 3:22-cr-00360-AN Document 49 _~ Filed 05/07/25 Page 16 of 16

CERTIFICATE OF SERVICE

I hereby certify that on May 7, 2025, I electronically filed the foregoing
SENTENICNG MEMORANDUM with the Clerk of the United States District
Court for the District of Oregon by way of the CM/ECF system, which
automatically will generate a notice of electronic filing and serve this document
on the attorneys of record for the parties in this case by electronic mail.

Date: May 7, 2025

Respectfully submitted,

S/ Katryna Lyn Spearman
Katryna Lyn Spearman, Esq.

Sentencing Memorandum 16


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