Defendant's Reply to Government's Sentencing Memorandum — United States v. Cassie Will-Darnall (Dkt. 87)

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Defendant’s Reply to Government’s Sentencing Memorandum, filed September 2, 2025 as Document 87 in United States of America v. Cassie Will-Darnall, Case 5:24-cr-00292-PCP, in the U.S. District Court for the Northern District of California, San Jose Division. Ms. Will-Darnall submits supplemental Exb. D, her August 25, 2025 letter of employment, and responds to the government’s arguments about Kisor v. Wilkie. She argues that United States v. Yafa addressed Application Note 3(B), and that the term “loss” in § 2B1.1 is unambiguous as applied here, so the Court should not defer to the commentary’s broader definition. The reply asks for a sentence of home detention or, in the alternative, a custodial term of no more than one year and one day.

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            Case 5:24-cr-00292-PCP           Document 87         Filed 09/02/25      Page 1 of 4



 1   JODI LINKER, Bar No. 230273
     Federal Public Defender
 2   Northern District of California
     VARELL FULLER, Bar No. 202680
 3   Assistant Federal Public Defender
     8th Floor - Suite 820
 4
     55 South Market Street
 5   San Jose, CA 95113
     Telephone: (408) 291-7753
 6   Facsimile: (408) 291-7399
     Email:        Varell_Fuller@fd.org
 7

 8   Counsel for Defendant Will-Darnall
 9

10                                 IN THE UNITED STATES DISTRICT COURT
11                           FOR THE NORTHERN DISTRICT OF CALIFORNIA
12                                            SAN JOSE DIVISION
13

14       UNITED STATES OF AMERICA,                            Case No.: CR 24–00292 PCP
15                    Plaintiff,                              DEFENDANT’S REPLY TO
                                                              GOVERNMENT’S SENTENCING
16            v.                                              MEMORANDUM
17       CASSIE WILL-DARNALL,                                 Court:            Courtroom 8, 4th Floor
18                    Defendant.
19
                                               INTRODUCTION1
20
            Ms. Cassie Will-Darnall respectfully submits this brief reply to address the following matters:
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     (1) to provide supplemental Exb. D, consisting of her August 25, 2025, letter of employment as a
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     Behavior Specialist with the Center for Social Dynamics, an agency that supports individuals
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     diagnosed with autism; (2) to clarify issues regarding her alcohol use disorder and its relevance to her
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     offense conduct; and (3) to respond to the government’s arguments concerning the applicability of
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     Kisor v. Wilkie, 139 S. Ct. 2400 (2019), in this case.
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28   1
       The parties have conferred, and neither objects to the filing of a short reply by either side, in light of
     the intervening Labor Day weekend.
     DEFENDANT'S REPLY TO GOVERNMENT'S SENTENCING MEMORANDUM
     WILL-DARNALL, CR 24–00292 PCP
                                                          1
           Case 5:24-cr-00292-PCP          Document 87        Filed 09/02/25      Page 2 of 4



 1                                               ARGUMENT
 2         First, the government has questioned Ms. Will-Darnall’s candor regarding her alcohol use and

 3   its role in the offense. Some of the confusion likely stems from the CAP assessment, which the

 4   defense requested only after Pretrial Services independently flagged her as preliminarily eligible.

 5   That assessment found her treatment needs were not presently acute, and she has since withdrawn her

 6   request for admission. Ms. Will-Darnall acknowledges her problematic drinking and its undoubted

 7   relationship to her offense but maintains she does not binge drink, based on her understanding of her

 8   patterns. She had her first drink at 13, struggled with alcohol in her twenties, and drank excessively

 9   during periods of anxiety and emotional distress, including at the time of the offense. She does not

10   seek to minimize or exaggerate her drinking but recognizes that her impaired judgment was a

11   contributing factor and relevant mitigation.

12         Second, the government misapprehends United States v. Yafa, 13 F.4th 1194 (9th Cir. 2021),

13   which did not hold that the term “loss” in § 2B1.1 is ambiguous in all contexts. Yafa addressed

14   Application Note 3(B), which permits the use of gain as a proxy where actual loss cannot reasonably

15   be determined. The Ninth Circuit found “loss” ambiguous only in that narrow context, which

16   involved a complex pump-and-dump securities fraud with incalculable losses. The panel expressly

17   declined to address the reasonableness of Application Note 3(A), which is the commentary provision

18   at issue here. The defense’s position is straightforward: the term “loss” in § 2B1.1 is unambiguous as

19   applied here, and no reasonable reading of the guideline’s text alone would support interpreting
20   “loss” to mean the greater of actual or intended loss, particularly where the intended harm was

21   unlikely or impossible to occur. Unlike Yafa, this case involves a straightforward economic offense

22   where the actual loss, approximately $2.8 million, is undisputed. The only question is whether the

23   Court should expand “loss” beyond its plain-text meaning to include hypothetical “intended loss”

24   based solely on the commentary. But Yafa confirms that Note 3(B) merely provides an alternate

25   method to calculate actual loss, not an expansion of its definition, and cites United States v. Banks, 55

26   F.4th 246 (3d Cir. 2022), recognizing that Note 3(A), unlike Note 3(B), seeks to expand the definition
27   of loss altogether. Moreover, if the 2021 Guidelines clearly encompassed intended loss in every case,

28   there would have been no need for the 2024 amendment modifying the textual definition. The text of

     DEFENDANT'S REPLY TO GOVERNMENT'S SENTENCING MEMORANDUM
     WILL-DARNALL, CR 24–00292 PCP
                                                        2
           Case 5:24-cr-00292-PCP           Document 87         Filed 09/02/25      Page 3 of 4



 1   § 2B1.1 in the 2019 Guidelines manual is unambiguous. Accordingly, under Kisor v. Wilkie, there is
 2   no basis to defer to the commentary’s broader definition, and doing so would invert Kisor by
 3   allowing the commentary to create the ambiguity that justifies its own deference. Additionally, the
 4   Court should exercise caution before relying on an agency’s interpretation, particularly one not
 5   enacted by Congress, as the basis for determining a fundamental liberty interest such as a term of
 6   imprisonment.
 7         Finally, the government’s reliance on United States v. McCormac, 309 F.3d 623 (9th Cir.
 8   2002), is misplaced. That case addressed whether a defendant was entitled to a credit against loss for
 9   funds recovered by the victim. Id. at 627. That issue is not present here. Ms. Will-Darnall does not
10   dispute the recovery of approximately $625,000, and the PSR correctly includes that recovery in
11   calculating the actual loss as $2.8 million. Unlike in McCormac, there is no dispute here regarding
12   offsets or credits. Nor does McCormac stand for the proposition that § 2B1.1’s text always
13   encompassed intended loss. The government’s argument on that point relies not on the guideline’s
14   text, but on the commentary, the agency’s own interpretation. Under Kisor v. Wilkie, such
15   commentary is not entitled to deference unless the guideline text is genuinely ambiguous, and even
16   then, only if the agency’s interpretation is reasonable, authoritative, and reflects its substantive
17   expertise. The commentary’s attempt to expand “loss” to include “intended loss” cannot itself create
18   the ambiguity that would justify deference. Such reasoning collapses the Kisor framework and serves
19   to justify its own relevance. Because the term “loss” in § 2B1.1 is not ambiguous as applied to this
20   basic economic offense with a known and undisputed actual loss, the Court should apply the
21   guideline’s text and decline to defer to the broader definition in the commentary. See Banks at 258.
22   (“concluding that in the context of a sentencing enhancement for basic economic offenses, the
23   ordinary meaning of the word “loss” is the loss the victim actually suffered”)
24         //
25         //
26         //
27         //
28         //

     DEFENDANT'S REPLY TO GOVERNMENT'S SENTENCING MEMORANDUM
     WILL-DARNALL, CR 24–00292 PCP
                                                          3
            Case 5:24-cr-00292-PCP         Document 87         Filed 09/02/25      Page 4 of 4



 1                                             CONCLUSION
 2        For the foregoing reasons, Ms. Will Darnall respectfully requests that the Court impose a

 3 sentence of home detention. In the alternative, she asks that the Court impose a custodial term of no

 4 more than one year and one day.

 5

 6        Dated:     September 2, 2025                      Respectfully submitted,

 7                                                          JODI LINKER
                                                            Federal Public Defender
 8                                                          Northern District of California
 9                                                                    /S
                                                            VARELL FULLER
10                                                          Assistant Federal Public Defender
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     DEFENDANT'S REPLY TO GOVERNMENT'S SENTENCING MEMORANDUM
     WILL-DARNALL, CR 24–00292 PCP
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