Transcript of Sentencing/Revocation Hearing (February 6, 2023) — United States v. Leslie Danielle Bethea (Dkt. 80)
Summary
Transcript of a sentencing and revocation hearing on February 6, 2023 in United States v. Leslie Danielle Bethea, Case 2:18-cr-00025-JRG-CRW, Document 80, filed 03/27/23, in the U.S. District Court for the Eastern District of Tennessee, before the Honorable J. Ronnie Greer. Mac D. Heavener, III appears for the government and Timothy W. Hudson for the defendant. The court takes up the government's objections to the presentence report, including its argument that the loss amount exceeds $150,000 and its sophisticated means enhancement objection, with Mr. Hudson opposing. The transcript closes with the court recommending that the Bureau of Prisons designate Alderson, West Virginia and that credit for time served run from June 6, 2022.
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
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“Transcript of Sentencing/Revocation Hearing (February 6, 2023) — United States v. Leslie Danielle Bethea (Dkt. 80).”
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1 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
2 GREENEVILLE
3
UNITED STATES OF AMERICA, . DOCKET NO. CR-2-22-52
4 . CR-2-18-25
GOVERNMENT, .
5 .
VS. . GREENEVILLE, TN
6 . FEBRUARY 6, 2023
LESLIE DANIELLE BETHEA, . 2:59 P.M.
7 .
DEFENDANT. .
8 .
. . . . . . . . . .
9
10
11 TRANSCRIPT OF SENTENCING/REVOCATION HEARING
BEFORE THE HONORABLE J. RONNIE GREER
12 UNITED STATES DISTRICT JUDGE
13
14 APPEARANCES:
15 FOR THE GOVERNMENT: DEPARTMENT OF JUSTICE
OFFICE OF U.S. ATTORNEY
16 MAC D. HEAVENER, III, AUSA
220 WEST DEPOT STREET, SUITE 423
17 GREENEVILLE, TN 37743
18 FOR THE DEFENDANT: TIMOTHY W. HUDSON, ESQ.
131 EIGHTH STREET
19 BRISTOL, TN 37621
20
21
22 COURT REPORTER: KAREN J. BRADLEY
RPR-RMR
23 U.S. COURTHOUSE
220 WEST DEPOT STREET
24 GREENEVILLE, TN 37743
25 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT
PRODUCED BY COMPUTER.
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1 (CALL TO ORDER OF THE COURT AT 2:59 P.M.)
2 THE COURT: ALL RIGHT. MS. KINGRY, CALL THIS
3 CASE, PLEASE.
4 THE CLERK: CASE NUMBER 2:22-CR-52 AND CASE
5 NUMBER 2:18-CR-25, UNITED STATES OF AMERICA VERSUS LESLIE
6 DANIELLE BETHEA.
7 THE COURT: GIVE ME JUST A MOMENT TO GET TO THE
8 RIGHT PLACE HERE.
9 ALL RIGHT. THE DEFENDANT APPEARS BEFORE THE
10 COURT THIS AFTERNOON FOR SENTENCING IN THIS CASE. SHE HAS
11 PREVIOUSLY BEEN CONVICTED BASED UPON HER GUILTY PLEA ON
12 THE CHARGES CONTAINED IN COUNTS 2 AND 8 OF THE PRESENTENCE
13 REPORT. IN COUNT 2 SHE WAS CHARGED WITH WIRE FRAUD, IN
14 COUNT 8 WITH MAKING A FALSE STATEMENT IN VIOLATION OF
15 TITLE 18, UNITED STATES CODE, SECTION 1001.
16 A PRESENTENCE REPORT WAS ORDERED. THAT REPORT
17 WAS DISCLOSED ON DECEMBER 22, 2022. IN THE PRESENTENCE
18 REPORT THE PROBATION OFFICER ESTABLISHES A TOTAL OFFENSE
19 LEVEL OF 11, A CRIMINAL HISTORY CATEGORY OF IV, AND A
20 RESULTING ADVISORY GUIDELINE RANGE OF 18 TO 24 MONTHS. BY
21 STATUTE MS. BETHEA FACES A MAXIMUM TERM OF 20 YEARS AS TO
22 COUNT 2 AND A MAXIMUM TERM OF 5 YEARS AS TO COUNT 8.
23 ALL RIGHT. MR. HUDSON, HAVE YOU RECEIVED AND
24 REVIEWED AND READ A COPY OF THIS PRESENTENCE REPORT?
25 MR. HUDSON: I HAVE, YOUR HONOR.
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1 THE COURT: AND HAVE YOU REVIEWED IT AND
2 DISCUSSED IT FULLY WITH THE DEFENDANT?
3 MR. HUDSON: I HAVE, YOUR HONOR.
4 THE COURT: AND, MS. BETHEA, HAVE YOU RECEIVED
5 AND READ A COPY OF THE PRESENTENCE REPORT?
6 THE DEFENDANT: YES, SIR.
7 THE COURT: AND HAVE YOU REVIEWED IT AND
8 DISCUSSED IT FULLY WITH YOUR ATTORNEY?
9 THE DEFENDANT: YES, SIR.
10 THE COURT: AND HAVE YOU HAD SUFFICIENT TIME TO
11 DO SO?
12 THE DEFENDANT: YES, SIR.
13 THE COURT: HAVE YOU ALSO RECEIVED AND READ A
14 COPY OF THE ADDENDUM TO THIS REPORT?
15 THE DEFENDANT: YES, SIR.
16 THE COURT: ARE YOU FAMILIAR WITH THE
17 OBJECTIONS THAT THE UNITED STATES HAS MADE TO THE
18 CALCULATION OF THE GUIDELINE RANGE IN THE CASE?
19 THE DEFENDANT: YES, SIR.
20 THE COURT: ALL RIGHT, AND HAVE YOU HAD
21 SUFFICIENT TIME TO REVIEW THOSE MATTERS AND DISCUSS THEM
22 WITH YOUR ATTORNEY?
23 THE DEFENDANT: YES, SIR.
24 THE COURT: ALL RIGHT.
25 ALL RIGHT. AS I SAID, THE GOVERNMENT HAS SOME
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1 OBJECTIONS, I BELIEVE THERE ARE THREE OF THOSE. WE'LL
2 TAKE THEM UP IN ANY ORDER YOU WISH, MR. HEAVENER. I BE-
3 LIEVE THE GOVERNMENT HAS THE BURDEN ON ALL THREE OF THEM.
4 MR. HEAVENER: YES, YOUR HONOR; AND, YOUR
5 HONOR, I BELIEVE THAT THE, ALL OF THESE OBJECTIONS, I
6 BELIEVE, ARE CONTAINED -- THE FACTUAL BASIS IS CONTAINED
7 IN UNOBJECTED TO PARAGRAPHS IN THE PRESENTENCE REPORT.
8 THE FIRST OBJECTION THE GOVERNMENT RAISED WAS TO THE LOSS
9 AMOUNT, AND I'M SPECIFICALLY GROUNDING THIS OBJECTION IN
10 PARAGRAPH 28 OF THE PRESENTENCE REPORT.
11 FOR THE COURT'S INFORMATION MS. BETHEA WAS
12 ARRESTED BY COMPLAINT, THEN SHE WAS INDICTED. WHEN
13 SPECIAL AGENT WHITEHEAD ARRESTED MS. BETHEA ON THAT
14 COMPLAINT, POST MIRANDA SHE ADVISED THAT SHE HAD -- SHE
15 GAVE SPECIFICS ABOUT THE FRAUDULENT PPP LOAN SHE HAD
16 OBTAINED AND THEN SHE ADVISED SPECIAL AGENT WHITEHEAD THAT
17 SHE HAD BEEN RECRUITING OTHER INDIVIDUALS TO THE SAME
18 PERSON WHO ASSISTED HER IN APPLYING FOR HER PPP LOAN. SHE
19 INDICATED THAT THERE WERE APPROXIMATELY 20 PEOPLE THAT SHE
20 HAD REFERRED, AND SHE INDICATED THAT SHE WOULD GET AS MUCH
21 AS $5,000 FOR A REFERRAL, AS LITTLE AS $2,000 FOR A
22 REFERRAL. SHE ALSO INDICATED THAT THE WOMAN WHO PROCESSED
23 THE PAPERWORK FROM THE MIAMI AREA WOULD OBTAIN $5,000
24 EACH. SO THIS IS A CONSERVATIVE ESTIMATE, IT'S PROBABLY
25 MORE THAN THIS, BUT I SIMPLY TOOK 20 FRAUDULENT PPP LOANS
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1 TIMES THE $2,000 MS. BETHEA WOULD RECEIVE, AS WELL AS 20
2 PPP LOANS TIMES THE $5,000 THE INDIVIDUAL IN FLORIDA WOULD
3 RECEIVE, AND THAT GIVES YOU A TOTAL OF $140,000, YOU THEN
4 ADD MS. BETHEA'S, WHAT WE KNOW IS HER $20,850 PPP LOAN.
5 SO THE LOSS AMOUNT CONSERVATIVELY IS MORE THAN $150,000.
6 IF THAT MATH IS THE FORMULA, THEN IT'S ABOUT $160,000.
7 THAT ASSUMES THAT THE, THE LOANS THEMSELVES ONLY COVER HER
8 CUT AND THE INDIVIDUAL IN MIAMI'S CUT. IT'S PROBABLY MORE
9 THAN THAT, BUT THAT'S THE BEST NUMBERS THAT I THINK WE
10 HAVE TO GO BY AT THIS POINT, YOUR HONOR
11 THE COURT: ALL RIGHT. LET'S TAKE THOSE ONE AT
12 A TIME. LET ME HEAR WHAT MR. HUDSON HAS TO SAY IN
13 OPPOSITION ON THAT ONE BEFORE WE GO TO THE NEXT ONE.
14 MR. HUDSON: YES, YOUR HONOR.
15 AS YOUR HONOR IS AWARE, I WAS A SUCCESSOR
16 COUNSEL TO THIS CASE --
17 THE COURT: YES.
18 MR. HUDSON: -- AND WAS NOT INVOLVED IN THE
19 PLEA AGREEMENT, BUT I DID NOTICE IN THE PLEA AGREEMENT
20 THAT THE, THE FACTUAL -- THE FACTS SUMMARIZED BY THE U.S.,
21 AND THEY ARE IN THE PRESENTENCE REPORT, AS TO THE
22 ACTIVITIES OF RECRUITING OTHER INDIVIDUALS, THAT ASPECT OF
23 IT AND THAT PARTICULAR LOSS WAS NOT STIPULATED TO BY THE
24 DEFENDANT, SO IT WAS LEFT TO BE AS INFORMATION THAT WAS,
25 WOULD BE BROUGHT BY THE GOVERNMENT BEFORE THE COURT AT
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1 SENTENCING AND THEN WE COULD, WE COULD ARGUE ABOUT WHETHER
2 OR NOT IT WOULD RESULT IN ANY KIND OF ENHANCEMENT.
3 THE ONLY FACTUAL BASIS FOR, THE GOVERNMENT USES
4 FOR THE ENHANCEMENT IS BASED ON A STATEMENT THAT
5 MS. BETHEA TOLD THE INVESTIGATING OFFICERS. IT'S THE
6 DEFENDANT'S POSITION THAT THAT DOES NOT MEET THE GOVERN-
7 MENT'S BURDEN TO, FOR THE COURT TO APPLY THE ENHANCEMENT.
8 I WOULD SUBMIT, YOUR HONOR, IT WOULD TAKE MORE THAN THAT.
9 SHE RECRUITED PEOPLE TO HAVE THESE LOANS
10 PROCESSED BY THIS INDIVIDUAL IN FLORIDA. THERE WOULD HAVE
11 TO BE SOME SHOWING, SOME EVIDENCE, REGARDLESS WHAT SHE
12 INTENDED AND WHAT SHE BELIEVED, THAT THOSE LOAN APPLICA-
13 TIONS WERE IN FACT FRAUDULENT AND THAT THOSE INDIVIDUALS
14 OBTAINED MONEY AND THAT WAS MONEY THAT THEY WERE NOT
15 ENTITLED TO AND THE GOVERNMENT HAS SUFFERED AN ACTUAL
16 LOSS. THOUGH THAT IS BEFORE THE COURT, THERE'S NO
17 INVESTIGATIVE REPORTS, THERE'S NO EVIDENCE OF OTHER
18 INDIVIDUALS, THERE'S NO ACCOUNTING, THERE IS NOTHING. ALL
19 THERE IS IS MS. BETHEA'S STATEMENT. SO IT'S OUR POSITION
20 THAT WOULD NOT MEET THE BURDEN THAT THE GOVERNMENT BEARS
21 TO PROVE THIS CASE.
22 THE COURT: SO ARE YOU SUGGESTING IT'S JUST AS
23 LIKELY THAT SHE WAS RECRUITING INDIVIDUALS TO APPLY FOR
24 LEGITIMATE PPP LOANS?
25 MR. HUDSON: WELL, YOUR HONOR, SHE DOESN'T
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1 REALLY SAY -- IT DOESN'T REALLY SAY IN THE STATEMENT, IT
2 JUST SAYS SHE RECRUITED INDIVIDUALS TO CONTACT THIS WOMAN
3 IN FLORIDA TO APPLY FOR LOANS. NOW, SHE MAY, SHE MAY HAVE
4 ASSUMED THAT, SHE MAY HAVE INTENDED, EVEN INTENDED THAT;
5 BUT WHETHER IT ACTUALLY HAPPENED THAT WAY, I THINK THE
6 GOVERNMENT HAS TO SHOW IT BEFORE THE ENHANCEMENT APPLIES.
7 THE COURT: ALL RIGHT. I UNDERSTAND YOUR
8 ARGUMENT.
9 WHAT DO YOU SAY TO THAT, MR. HEAVENER?
10 MR. HEAVENER: YOUR HONOR, I -- FIRST OF ALL, I
11 THINK THAT CIRCUMSTANTIALLY THE FACT THAT SHE'S RECEIVING
12 A 2 TO $5,000 RECRUITMENT FEE WOULD COUNT, COUNTER ANY
13 SUGGESTION THAT THIS IS A LEGITIMATE PPP APPLICATION.
14 ALSO IN PARAGRAPH 28 IT'S NOTED THAT THE
15 CONTACT WITH THE WOMAN IN FLORIDA CAME FROM MS. BETHEA'S
16 PRIOR PRISON SENTENCE. I BELIEVE THE FOURTH SENTENCE SAYS
17 SHE LEFT THE HALFWAY HOUSE IN AUGUST OF 2020, AND SHE WAS
18 PLACED ON HOME CONFINEMENT UNTIL OCTOBER OF 2020. GOING
19 DOWN, SHE STATED HER FRIEND DIAMOND BENTLEY TOLD HER THAT
20 SHE KNEW SOMEONE WHO WOULD PROCESS THE LOAN APPLICATION.
21 THE DEFENDANT SPOKE WITH JASMINE ON THE PHONE AND BY FACE-
22 TIME. SHE PROVIDED HER NAME, ADDRESS, DATE OF BIRTH, ET
23 CETERA. THERE'S NO INDICATION IN HERE OF ANY ATTEMPT TO
24 OBTAIN LEGITIMATE, LEGITIMATE CLIENTELE, FOR LACK OF A
25 BETTER WORD.
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1 I WILL ADVISE THE COURT, COUNSEL IS CORRECT
2 THAT WE ARE RELYING ON MS. BETHEA'S STATEMENT IN
3 ESTABLISHING THIS, BUT I DON'T THINK THAT MAKES IT LESS
4 THAN A PREPONDERANCE OF THE EVIDENCE. IN FACT, I THINK
5 IT'S QUITE CONVINCING THAT IT'S HER OWN STATEMENT; SO FOR
6 THAT REASON WE THINK THAT, AGAIN, FOR PURPOSES OF LOSS
7 CALCULATION, IT'S AN ESTIMATE, AND WE THINK THIS IS AN
8 ACCURATE ESTIMATE.
9 THE COURT: ALL RIGHT. ALL RIGHT. THIS
10 OBJECTION DEALS WITH THE ENHANCEMENT PROVIDED FOR IN
11 SECTION 2B1.1(B)(1) OF THE GUIDELINES. THE PROBATION
12 OFFICER APPLIED A FOUR LEVEL ENHANCEMENT UNDER SUBSECTION
13 1(C), THE DEFENDANT BEING HELD RESPONSIBLE IN THE
14 PROBATION OFFICER'S ACCOUNT FOR MORE THAN $15,000 IN LOSS,
15 BUT NOT MORE THAN 40,000.
16 THE GOVERNMENT ARGUES THAT THE LOSS AMOUNT HERE
17 WAS IN EXCESS OF $150,000 AND THAT THE MORE APPROPRIATE
18 INCREASE IN LEVEL UNDER SECTION 2B1.1(B)(1) IS SUBSECTION
19 (F) WHICH PROVIDES FOR A 10 LEVEL INCREASE IN OFFENSE
20 LEVEL FOR A LOSS MORE THAN $150,000.
21 THE UNITED STATES RELIES HERE ON THE DEFEN-
22 DANT'S OWN STATEMENTS, THAT SHE RECEIVED A REFERRAL FEE OF
23 A VERY CONSERVATIVE $2,000, AT LEAST $2,000 FOR EACH OF 20
24 REFERRALS THAT SHE MADE TO HER COCONSPIRATOR IN FLORIDA;
25 AND THAT THE PERSON IN FLORIDA RECEIVED A $5,000 FEE FOR
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1 EACH OF THOSE LOAN APPLICATIONS AS WELL.
2 THE DEFENDANT ARGUES, FIRST OF ALL, THAT THIS
3 WAS BASED ON HER OWN STATEMENT AND NOTHING ELSE. IN THE
4 COURT'S VIEW THAT'S IRRELEVANT. THERE IS NO REQUIREMENT
5 THAT I'M AWARE OF THAT HER STATEMENT BE CORROBORATED ON
6 ANY OF THIS; BUT PRIMARILY THE DEFENDANT ARGUES THAT THE
7 PROOF IS NOT SUFFICIENT FOR THE COURT TO FIND BY A PREPON-
8 DERANCE OF THE EVIDENCE, WHICH IS THE STANDARD THAT
9 APPLIES TO THESE OBJECTIONS, THAT THESE LOANS WERE
10 FRAUDULENT, THAT THESE FEES ACTUALLY REPRESENTED LOSS TO
11 THE GOVERNMENT.
12 AS I SAID, THE COURT APPLIES A PREPONDERANCE OF
13 THE EVIDENCE STANDARD ON THESE, MEANING THAT THE STANDARD
14 BASICALLY IS MORE LIKELY THAN NOT. IS IT MORE LIKELY THAN
15 NOT THAT THESE LOANS FOR WHICH SHE RECEIVED REFERRAL FEES
16 AND FOR WHICH THE COCONSPIRATOR IN FLORIDA RECEIVED
17 GREATER FEES ARE FRAUDULENT.
18 I AGREE WITH THE UNITED STATES THAT THE
19 CIRCUMSTANTIAL EVIDENCE INDICATES THAT THESE WERE IN FACT
20 FRAUDULENT LOANS FOR SEVERAL REASONS, BUT PRIMARILY IT'S
21 CLEAR FROM THE CONTEXT TO ME THAT MS. BETHEA OR
22 MS. BETHEA, I NOTICED MR. HUDSON PRONOUNCED IT BETHEA,
23 KNEW THE CONTEXT IN WHICH SHE WAS GIVING THE STATEMENT, IT
24 WAS IN THE CONTEXT OF A CRIMINAL INVESTIGATION; SECONDLY,
25 I WOULD NOTE THAT THE PERSON TO WHOM THE REFERRALS WERE
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1 MADE WAS HER COCONSPIRATOR IN FLORIDA, A PERSON ENGAGED IN
2 THE ACQUISITION OF FRAUDULENT PPP LOANS; THIRD, I WOULD
3 ACKNOWLEDGE THAT THAT IS A PERSON THAT MS. BETHEA SHOULD
4 HAVE KNOWN WAS ENGAGED IN CRIMINAL CONDUCT BECAUSE, AFTER
5 ALL, SHE MET HER IN PRISON. I THINK BY A PREPONDERANCE
6 THE GOVERNMENT HAS ESTABLISHED HERE THAT THE LOSS IS AT
7 LEAST $150,000 PLUS ONE, MORE THAN $150,000, AND THAT THE
8 APPROPRIATE ENHANCEMENT UNDER THE GUIDELINE SECTION IS 10
9 NOT 4 AS APPLIED BY THE PROBATION OFFICER, SO THE
10 GOVERNMENT'S OBJECTION UNDER SECTION 2B1.1(B)(1) IS
11 SUSTAINED.
12 ALL RIGHT. MR. HEAVENER, ON THE SECOND ONE?
13 MR. HEAVENER: YOUR HONOR, THE SECOND OBJECTION
14 IS THE FAILURE TO INCLUDE A SOPHISTICATED MEANS ENHANCE-
15 MENT. I HAVE OUTLINED WHAT WE BELIEVE THE FACTS ARE, AND
16 THESE, AGAIN, ARE COMING FROM THE PRESENTENCE REPORT, I
17 BELIEVE, THAT WOULD SUPPORT THAT ENHANCEMENT.
18 FIRST, MS. BETHEA USED OR AIDED AND ABETTED IN
19 THE USE OF A FICTITIOUS BUSINESS; THAT WAS THE -- SHE, SHE
20 -- THE UNDERLYING FACTS ARE THAT SHE CLAIMED THAT SHE HAD
21 A SOLE PROPRIETORSHIP MARKETING AGREEMENT OR MARKETING
22 AGENCY; SECOND, INFORMATION WAS PROVIDED BY HER THROUGH
23 INTERSTATE COMMUNICATIONS WITH THE INDIVIDUAL IN FLORIDA;
24 THIRD, THE ANONYMOUS PPP LOAN APPLICATIONS WERE SUBMITTED
25 ON LINE, THERE WAS NO FACE-TO-FACE MEETING WITH A BANKER;
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1 FOURTH, THE USE OF THE INDIVIDUAL LOCATED IN FLORIDA TO
2 SUBMIT THE FRAUDULENT LOAN APPLICATIONS, OR HAVE HER
3 APPLICATION; FIFTH, SHE INCLUDED OR CAUSED THE INCLUSION
4 OF A FRAUDULENT IRS TAX DOCUMENT AS PART OF THIS APPLICA-
5 TION, THAT'S A FRAUDULENT SCHEDULE C THAT REFLECTED INCOME
6 SUFFICIENT TO SUPPORT HER REQUEST FOR THE LOAN THAT SHE
7 RECEIVED; SIXTH, SHE USED A BANK ACCOUNT IN ANOTHER INDI-
8 VIDUAL'S NAME TO RECEIVE PROCEEDS OF OTHER FRAUDULENT PPP
9 LOANS. THE STATEMENT IN PARAGRAPH 28 WAS THAT SHE WOULD
10 RECEIVE THIS, THIS, THIS REFERRAL FEE. WE KNOW THAT
11 THERE'S SOME RECORD AND BANK STATEMENTS THAT THERE'S
12 ELECTRONIC TRANSFERS INTO AN ACCOUNT CONTROLLED BY ANOTHER
13 PERSON, BUT SHE WAS IN CONTROL OF IT; SEVENTH, SHE USED A
14 LARGE PORTION OF THE PROCEEDS FROM HER FRAUDULENT PPP LOAN
15 IN THE STATE OF FLORIDA, WHICH, OF COURSE, MADE INVESTIGA-
16 TION MORE DIFFICULT; AND THEN EIGHTH IS THE FRAUDULENT
17 MONTHLY SUPERVISION REPORTS THAT SHE SUBMITTED TO HIDE AND
18 CONCEAL THE FRAUDULENT PPP LOAN THAT SHE HAD RECEIVED. SO
19 FOR THOSE REASONS WE BELIEVE THAT A SOPHISTICATED MEANS
20 ENHANCEMENT IS PARTICULAR IN THIS CASE.
21 THE COURT: ALL RIGHT, MR. HEAVENER; AND,
22 MR. HUDSON, AGAIN, WHY DO YOU SAY THAT IS NOT APPLICABLE
23 HERE?
24 MR. HUDSON: YOUR HONOR, AS IS POINTED OUT IN
25 THE DESCRIPTION OF THE PPP LOAN PROGRAM, AND THE -- AND AS
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1 PROVIDED FOR IN THE PLEA AGREEMENT, ACTUALLY, I THINK
2 MAYBE ALSO BECAUSE OF OUR COMMON KNOWLEDGE OF THE ADVER-
3 TISEMENTS AND INFORMATION PROVIDED AT THE TIME DURING THE
4 PANDEMIC, THE HALLMARK OF THE PPP LOAN WAS NOT HAVING --
5 WAS NOT HAVING TO FILE A SOPHISTICATED APPLICATION; THAT
6 ANYONE WITHOUT SPECIALIZED KNOWLEDGE, SMALL BUSINESS OR
7 WHATEVER, COULD EASILY MAKE THIS APPLICATION WITH THE IDEA
8 THAT TO GIVE EASE TO THE PUBLIC AND SMALL BUSINESS THAT
9 THEY COULD DO THIS EASILY, GET THEIR MONEY QUICKLY AND NOT
10 HAVE TO CLOSE THEIR BUSINESSES OR LAY OFF EMPLOYEES.
11 IN THIS PARTICULAR CASE MS. BETHEA OR BETHEA?
12 THE DEFENDANT: BETHEA.
13 MR. HUDSON. BETHEA, YOUR HONOR WAS RIGHT.
14 MS. BETHEA CLAIMED TO BE A SOLE PROPRIETORSHIP, APPARENTLY
15 WITH NO EMPLOYEES; AND UNDER THE PPP PROGRAM A SOLE
16 PROPRIETOR EVEN WITH NO EMPLOYEES COULD APPLY FOR A LOAN
17 AND FOR THE LOSS OF INCOME THAT THIS SOLE PROPRIETOR, THAT
18 THAT PERSON WAS LOSING. SO THE ONLY THING THAT WAS
19 REQUIRED TO DO FOR HER TO DO THIS FRAUDULENTLY IS TO COME
20 UP WITH A SCHEDULE C, WHICH IS A TWO-PAGE DOCUMENT SAYING
21 YOU OWN THIS BUSINESS, IT'S AN APPLICATION THAT SAYS YOU
22 OWN THIS BUSINESS, AND HAVING TO SUBMIT IT. SO THERE'S
23 NOTHING SOPHISTICATED, YOUR HONOR, ABOUT THAT; AND I WOULD
24 SUBMIT THERE'S NOTHING SOPHISTICATED ABOUT SETTING UP A
25 SEPARATE BANK ACCOUNT TO RECEIVE MONEY; SO IT'S OUR
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1 POSITION THAT THE, THE ENHANCEMENT THAT THE GOVERNMENT
2 SEEKS FOR USE OF SOPHISTICATED MEANS SHOULD NOT APPLY.
3 THE COURT: DOESN'T THE ENHANCEMENT ALSO APPLY
4 WITH RESPECT TO ATTEMPTS TO CONCEAL, AND ISN'T THAT
5 EXACTLY WHAT HAPPENED HERE WITH THE FICTITIOUS BUSINESS
6 ENTITY, THE FICTITIOUS NAME ON THE ACCOUNT, WHERE THE
7 PROCEEDS ARE RECEIVED AND THINGS OF THAT SORT?
8 MR. HUDSON: WELL, YOUR HONOR, THAT IS AN ELE-
9 MENT THAT THE COURT, A FACTOR THAT THE COURT CAN CONSIDER;
10 BUT LOOKING AT IT ALL, THE SIMPLICITY OF THE PROGRAM
11 ITSELF, ANYONE WITHOUT ANY KIND OF SPECIAL, SPECIALIZED
12 KNOWLEDGE OR BUSINESS ACUMEN COULD, COULD, COULD PARTICU-
13 LARLY DO THIS; AND, UNFORTUNATELY, IT WAS DONE QUITE
14 FREQUENTLY. BUT BEING THAT A TWO LEVELS ENHANCEMENT
15 SHOULD APPLY, I THINK THE WAY THE GOVERNMENT LOOKS AT THIS
16 CASE, YOUR HONOR, IS LIKE, IT'S ALMOST ANALOGOUS TO A --
17 THEY'RE LOOKING AT IT AS ANALOGOUS TO A DRUG TRAFFICKING
18 CONSPIRACY. WELL, IT WASN'T THAT, YOUR HONOR. SHE WAS
19 INDICTED IN THE FIRST COUNT WITH CONSPIRACY. IN FACT, SHE
20 WAS NOT REQUESTED TO PLEAD GUILTY TO IT. THERE ARE NO
21 CODEFENDANTS. THIS IS A SINGLE DEFENDANT INDICTMENT, AND
22 SHE WASN'T -- AND WE'LL GET TO HER AGGRAVATING ROLE, WHICH
23 IS NEXT, BUT I THINK THESE TWO, TWO OBJECTIONS OVERLAP IN
24 THAT RESPECT, THAT IT JUST DOESN'T HAVE THE NATURE OF AN
25 ORGANIZED CONSPIRACY.
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1 THE COURT: ALL RIGHT, MR. HUDSON.
2 ALL RIGHT. AT ISSUE IN THIS OBJECTION IS
3 SECTION 2B1.1(B)(10)(C) OF THE GUIDELINES WHICH PROVIDES
4 FOR A TWO LEVEL INCREASE IN OFFENSE LEVEL IF SOPHISTICATED
5 MEANS WERE USED. THE COMMENTARY TO THE GUIDELINE IN NOTE
6 (9)(B) DEFINES SOPHISTICATED MEANS AS ESPECIALLY COMPLEX
7 OR ESPECIALLY INTRICATE OFFENSE CONDUCT PERTAINING TO THE
8 EXECUTION OR CONCEALMENT OF AN OFFENSE.
9 FOR EXAMPLE, IN A TELEMARKETING SCHEME LOCATING
10 THE MAIN OFFICE OF THE SCHEME IN ONE JURISDICTION BUT
11 LOCATING SOLICITING OPERATIONS IN ANOTHER JURISDICTION
12 ORDINARILY INDICATES SOPHISTICATED MEANS; CONDUCT SUCH AS
13 HIDING ASSETS OR TRANSACTIONS OR BOTH THROUGH THE USE OF
14 FICTITIOUS ENTITIES, CORPORATE SHELLS OR OFF-SHORE
15 FINANCIAL ACCOUNTS ALSO ORDINARILY INDICATES SOPHISTICATED
16 MEANS.
17 I WILL ACKNOWLEDGE THAT AT FACE VALUE MY FIRST
18 IMPRESSION WAS THAT THIS OBJECTION WAS MUCH CLOSER THAN
19 THE FIRST ONE. I CANNOT, HOWEVER, ESCAPE THE ACTUAL
20 CONDUCT OF THE DEFENDANT WITH RESPECT TO THIS OFFENSE.
21 MR. HUDSON IS EXACTLY CORRECT, IT IS A SIMPLE PROCEDURE IF
22 DONE LEGALLY. THE DEFENDANT COULD APPARENTLY HAVE FILED A
23 SHORT, SIMPLE APPLICATION FOR A PPP LOAN. THAT IS NOT
24 WHAT SHE DID. WHAT SHE DID WAS CREATE A FICTITIOUS
25 BUSINESS, SHE USED A PERSON FROM ANOTHER JURISDICTION TO
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1 SUBMIT THE APPLICATION, SHE CAUSED THE INCLUSION OF A
2 FRAUDULENT IRS APPLICATION, OR TAX DOCUMENT, AND SHE USED
3 A BANK ACCOUNT IN ANOTHER INDIVIDUAL'S NAME TO RECEIVE THE
4 PROCEEDS. ALL OF THAT IS THE USE OF FICTITIOUS ENTITIES
5 AND/OR DOCUMENTS FOR THE PURPOSE OF CONCEALING THE FACT
6 THAT THIS WAS AN ILLEGAL LOAN APPLICATION, NOT A LEGAL
7 ONE. THE FACT THAT IT COULD HAVE BEEN DONE SIMPLY AND
8 LEGITIMATELY AND LAWFULLY AND WITHOUT ANY KIND OF
9 SOPHISTICATED MEANS IS NOT THE POINT.
10 IN MY VIEW THE USE OF A FICTITIOUS BUSINESS
11 ENTITY COUPLED WITH THE USE OF A FICTITIOUS BANK ACCOUNT
12 OR BANK ACCOUNT MAINTAINED IN ANOTHER INDIVIDUAL'S NAME TO
13 RECEIVE PROCEEDS OF FRAUDULENT LOANS IS ENOUGH BY ITSELF,
14 BUT THERE'S MORE HERE. MS. BETHEA USED SIGNIFICANT
15 EFFORTS OR MADE SIGNIFICANT EFFORT TO HIDE THE ILLEGAL
16 NATURE OF THIS TRANSACTION, ALONG WITH A COCONSPIRATOR
17 LOCATED IN THE STATE OF FLORIDA.
18 THE GOVERNMENT HAS MET ITS BURDEN OF ESTAB-
19 LISHING THAT THIS OFFENSE INVOLVED SOPHISTICATED MEANS BY
20 PROVING THAT BY A PREPONDERANCE OF THE EVIDENCE. ONCE
21 AGAIN, THE GOVERNMENT'S OBJECTION IS SUSTAINED AND A TWO
22 LEVEL ENHANCEMENT APPLIES HERE UNDER SECTION
23 2B1.1(B)(10)(C).
24 ALL RIGHT, AND THE THIRD ONE, MR. HEAVENER?
25 MR. HEAVENER: YOUR HONOR, THE THIRD ONE IS, IS
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1 VERY BRIEF. THE GOVERNMENT OBJECTS TO THE NON-INCLUSION
2 OF A LEADERSHIP ROLE ENHANCEMENT, AND THAT'S BASED ON
3 MS. BETHEA'S ADMISSION THAT SHE RECRUITED OTHERS INTO THE
4 CONSPIRACY OR INTO THE CONDUCT. I'VE RELIED ON THE
5 COMMENTARY NOTE WHICH INDICATES THAT ONE OF THE FACTORS
6 THE COURT CAN CONSIDER IS A RECRUITMENT OF ACCOMPLICES, AS
7 WELL AS THE SIXTH CIRCUIT OPINION UNITED STATES VERSUS
8 CASTILLA-LUGO IN WHICH THE SIXTH CIRCUIT HELD THAT
9 RECRUITING OTHERS IS A LEGALLY SUFFICIENT BASIS TO APPLY
10 THAT ENHANCEMENT.
11 THE ONLY ADDITIONAL FACT WOULD BE THE, THE
12 INSTRUCTING OTHERS WHERE TO SUBMIT THEIR REFERRAL FEES,
13 BUT I -- THAT FACTUAL RECORD WAS NOT VERY DEVELOPED AT
14 THIS POINT, SO I'M RELYING STRICTLY ON THE RECRUITMENT,
15 YOUR HONOR.
16 THE COURT: ALL RIGHT. AND WHAT IS YOUR
17 RESPONSE TO THAT ONE, MR. HUDSON?
18 MR. HUDSON: WELL, YOUR HONOR, THE -- WHAT'S
19 NOT PRESENT, YOUR HONOR, IS ALTHOUGH SHE DOES RECRUIT
20 OTHERS WHO CONDUCT THEIR OWN ACTIVITY TO MAKE THEIR OWN
21 LOANS, SHE DOESN'T PARTICIPATE IN DOING THAT, BUT SHE DOES
22 RECEIVE, ACCORDING TO GOVERNMENT A, A KICKBACK OR REFERRAL
23 FEE. SHE'S NOT PARTICIPATING WITH THESE OTHERS OTHER THAN
24 TO RECRUIT THEM. SHE HAS NO CONTROL OR AUTHORITY OVER
25 THEM OR WHETHER THEY DECIDE TO DO -- TO FILE, TO MAKE THIS
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1 APPLICATIONS FOR LOANS, HOW THEY DO IT WHEN THEY DO IT,
2 JUST TELL THEM, JUST TELL THEM WHO THEY CAN GO TO. SO
3 IT'S OUR POSITION THAT SHE WAS NOT, AN AGGRAVATING ROLE
4 DOES NOT APPLY IN THIS CASE. AGAIN, THIS IS NOT LIKE A
5 COCONSPIRACY CASE WHERE SHE HAS AGENTS BEHIND OR WORKING
6 FOR HER THAT ARE CONDUCTING ILLEGAL ACTIVITY, AND SHE'S
7 NOT GETTING, SHE'S NOT GETTING THE GREATER SHARE OF THE
8 PROCEEDS EITHER.
9 THE COURT: SECTION 3B1.1 OF THE GUIDELINES IN
10 SUBSECTION B PROVIDES THAT IF THE DEFENDANT WAS A MANAGER
11 OR SUPERVISOR BUT NOT AN ORGANIZER, LEADER IN THE CRIMINAL
12 ACTIVITY INVOLVING FIVE OR MORE PARTICIPANTS OR WAS OTHER-
13 WISE EXTENSIVE INCREASE BY THREE LEVELS. THE GOVERNMENT
14 ARGUES THAT THAT ENHANCEMENT APPLIES HERE BECAUSE THE
15 DEFENDANT BY HER OWN ADMISSION RECRUITED 20 OTHER PEOPLE
16 TO PARTICIPATE IN THIS FRAUDULENT SCHEME TO ACQUIRE MONEY
17 FROM THE PPP PROGRAM.
18 THE APPLICATION NOTE TO THE GUIDELINE SECTION
19 LISTS SOME FACTORS THE COURT CAN LOOK AT TO DIFFERENTIATE
20 OR DISTINGUISH BETWEEN A ROLE OF LEADERSHIP AND ORGANI-
21 ZATION FROM ONE OF MERE MANAGEMENT OR SUPERVISION.
22 THOSE FACTORS INCLUDE: THE EXERCISE OF
23 DECISION-MAKING AUTHORITY. IT'S NOT AT ALL CLEAR TO THE
24 COURT HERE THAT MS. BETHEA EXERCISED DECISION-MAKING
25 AUTHORITY WITH RESPECT TO THIS SCHEME; SECOND, THE COURT
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1 IS TO LOOK AT THE NATURE OF PARTICIPATION IN THE COM-
2 MISSION OF THE OFFENSE. MS. BETHEA WAS HEAVILY INVOLVED
3 IN THIS OFFENSE, RECRUITING NUMEROUS PARTICIPANTS INTO
4 THIS FRAUDULENT SCHEME BY PUTTING THOSE PERSONS IN TOUCH
5 WITH HER COCONSPIRATOR AND PROVIDING BANKING INFORMATION
6 TO OBTAIN HER REFERRAL FEE.
7 THE NEXT FACTOR IS SPECIFICALLY THE RECRUITMENT
8 OF ACCOMPLICES. CLEARLY MS. BETHEA RECRUITED ACCOMPLICES
9 HERE. THE NEXT FACTOR IS THE CLAIM OF RIGHT TO A LARGER
10 SHARE OF THE FRUITS OF THE CRIME. CLEARLY SHE DID NOT
11 RECEIVE THE LARGEST CUT OF THE PROCEEDS OBTAINED FRAUDU-
12 LENTLY, AT LEAST SHE SIMPLY APPEARS TO HAVE RECEIVED WITH
13 RESPECT TO THOSE SHE RECRUITED A REFERRAL FEE. I WOULD
14 NOTE, HOWEVER, THAT SHE DID IN FACT CLAIM THE RIGHT TO A
15 LARGER SHARE OF THE FRUITS OF HER OWN FRAUDULENT PPP LOAN.
16 NEXT FACTOR IS THE DEGREE OF PARTICIPATION IN PLANNING OR
17 ORGANIZING THE OFFENSE. AGAIN, I DON'T HAVE SUFFICIENT
18 INFORMATION BEFORE ME TO MAKE ANY KIND OF DETERMINATION
19 WITH RESPECT TO THAT ONE.
20 THERE'S ALSO A FACTOR THAT THE COURT IS
21 DIRECTED TO WHICH IS THE NATURE AND SCOPE OF THE ILLEGAL
22 ACTIVITY. IT APPEARS CLEAR FROM THE RECORD HERE THAT
23 MS. BETHEA UNDERSTOOD FULLY THE NATURE AND SCOPE OF THE
24 CRIMINAL ACTIVITY. FIRST OF ALL, SHE FULLY WAS INVOLVED
25 IN THE PARTICIPATION, IN PARTICIPATION OF ACQUIRING HER
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1 OWN FRAUDULENT LOAN, THEREFORE, IT FOLLOWS VERY CLEARLY
2 THAT SHE UNDERSTOOD THE ROLE OF THE PEOPLE SHE RECRUITED
3 WOULD PLAY IN THE ACQUISITION OF THEIR OWN FRAUDULENT
4 LOANS.
5 IT SEEMS TO ME THAT BY THE DIRECT APPLICATION
6 OF THE NOTE, AS WELL AS SIXTH CIRCUIT CASE LAW THIS
7 ENHANCEMENT LIKEWISE CLEARLY APPLIES. THE GOVERNMENT'S
8 OBJECTION HERE IS SUSTAINED. THERE IS A THREE LEVEL
9 ENHANCEMENT IN THE OFFENSE LEVEL FOR AN AGGRAVATING ROLE
10 UNDER SECTION 3B1.1(B).
11 NOW, MS. RAY, YOU MAY HAVE TO HELP ME CALCULATE
12 IT NOW. WE'VE GOT A BASE OFFENSE LEVEL OF -- EXCUSE ME,
13 LET ME GET TO THE RIGHT PLACE. WE'VE GOT A BASE OFFENSE
14 LEVEL OF 7, AN ENHANCEMENT OF 10 LEVELS PURSUANT TO
15 SECTION 2B1.1(B)(1)(F). WE HAVE A TWO LEVEL ENHANCEMENT
16 FOR OBSTRUCTION OF JUSTICE THAT'S UNOBJECTED TO. WE HAVE
17 A TWO LEVEL ENHANCEMENT FOR THE USE OF SOPHISTICATED
18 MEANS, AND A THREE LEVEL ENHANCEMENT FOR HER ROLE IN THE
19 OFFENSE, HER AGGRAVATING ROLE IN THE OFFENSE.
20 PROBATION OFFICER RAY: YES, YOUR HONOR.
21 THE COURT: AND THAT --
22 PROBATION OFFICER RAY: HER OFFENSE LEVEL
23 SHOULD BE 21, THE TOTAL OFFENSE LEVEL IS 21.
24 THE COURT: IS 24 MINUS 3; ISN'T IT?
25 PROBATION OFFICER RAY: YES, 24 MINUS 3.
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1 THE COURT: ALL RIGHT.
2 PROBATION OFFICER RAY: THE GUIDELINE RANGE IS
3 57 TO 71 MONTHS.
4 THE COURT: ALL RIGHT.
5 PROBATION OFFICER RAY: AND THE FINE RANGE IS
6 15,000 TO 150,000.
7 THE COURT: OKAY. NOW I BELIEVE WE'RE ON THE
8 SAME PAGE ON THE MAP. SO THERE IS AN ADJUSTED OFFENSE
9 LEVEL OF 24 BASED ON THE COURT'S RULINGS, A THREE LEVEL
10 REDUCTION UNDER SECTION 3E1.1 FOR ACCEPTANCE UNDER --
11 WELL, SECTION 3E1.1, RESULTING IN A TOTAL OFFENSE LEVEL OF
12 21, CRIMINAL HISTORY CATEGORY OF IV, AND AN ADVISORY RANGE
13 OF 57 TO 71 MONTHS.
14 MR. HEAVENER, DO YOU AGREE WITH THE MATH?
15 MR. HEAVENER: I DO, YOUR HONOR; AND FOR THE
16 COURT'S NOTE I FILED A CORRECTED SENTENCING MEMO.
17 THE COURT: I SAW THAT EARLIER TODAY.
18 MR. HEAVENER: I'M NOT SURE WHAT MY ISSUE WITH
19 MATH HAS BEEN THESE PAST COUPLE OF WEEKS.
20 THE COURT: I UNDERSTAND.
21 AND, MR. HUDSON, I KNOW YOU DON'T AGREE WITH
22 THE COURT'S RULINGS, BUT DO YOU AGREE WITH THE MATH?
23 MR. HUDSON: YES, YOUR HONOR.
24 THE COURT: ALL RIGHT. THEN HAVING RULED ON
25 ALL THE OBJECTIONS -- AND, BY THE WAY, WHAT YOU FILED,
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1 WHICH HAS BEEN CHARACTERIZED AS AN OBJECTION, WAS SIMPLY A
2 RESPONSE TO THE GOVERNMENT'S OBJECTIONS IN WHICH YOU
3 ASSERTED THAT YOU THOUGHT THE ORIGINAL PRESENTENCE REPORT
4 WAS CORRECT, IS THAT --
5 MR. HUDSON: THAT'S CORRECT, YOUR HONOR, I
6 PROBABLY DIDN'T TITLE THAT CORRECTLY.
7 THE COURT: SO THERE IS NO OBJECTION FROM THE
8 DEFENDANT.
9 SO HAVING RULED ON ALL THE OBJECTIONS, THEN I
10 FIND THAT THE TOTAL OFFENSE LEVEL IS 21 WITH A CRIMINAL
11 HISTORY CATEGORY OF IV, THE ADVISORY GUIDELINE RANGE IS 57
12 TO 71 MONTHS; AND WITH THOSE CHANGES, I WILL ADOPT THE
13 PRESENTENCE REPORT AS THE COURT'S FINDINGS IN THE CASE. I
14 WILL APPLY THE STATUTORY MAXIMUM OF 20 YEARS AS TO COUNT
15 2, STATUTORY MAXIMUM OF 5 YEARS AS TO COUNT 8.
16 ALL RIGHT. MR. HEAVENER, AS I SAID, I READ
17 YOUR AMENDED SENTENCING MEMORANDUM, YOU SEEK A BOTTOM OF
18 THE GUIDELINE RANGE SENTENCE HERE; CORRECT?
19 MR. HEAVENER: YOUR HONOR, I WILL BE REQUESTING
20 A TOP OF THE GUIDELINE FOR THE VIOLATION OF THE SUPERVISED
21 RELEASE.
22 THE COURT: TOP OF THE GUIDELINE OR STATUTORY
23 MAXIMUM?
24 MR. HEAVENER: WELL, I'M SEEKING THE TOP OF THE
25 GUIDELINE. I THINK THERE'S CERTAINLY A --
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1 THE COURT: SO YOU'RE SEEKING 12 MONTHS ON THE
2 REVOCATION?
3 MR. HEAVENER: YES, SIR. I CERTAINLY
4 UNDERSTAND IF THE COURT EXCEEDS THAT, BUT THAT'S THE
5 GOVERNMENT'S REQUEST.
6 THE COURT: ALL RIGHT. ANYTHING ELSE ABOVE AND
7 BEYOND WHAT YOU'VE PUT IN YOUR SENTENCING MEMORANDUM?
8 MR. HEAVENER: YOUR HONOR, IF I COULD JUST
9 BRIEFLY HIGHLIGHT A FEW OF THE REASONS WHY THE GOVERNMENT
10 BELIEVES A SENTENCE OF THIS NATURE IS APPROPRIATE. I
11 WOULD JUST ASK THE REGULAR QUESTIONS, WHO, WHAT, WHEN,
12 WHERE, WHY, AND HOW. I MAY GET THEM OUT OF ORDER; BUT WHO
13 IS THE DEFENDANT COMMITTED THIS OFFENSE AFTER JUST SERVING
14 24 MONTHS ON ANOTHER WIRE FRAUD OFFENSE FROM THIS COURT
15 WHILE SERVING OUT THE SUPERVISED RELEASE TERM. THAT'S
16 VERY AGGRAVATING IN THE GOVERNMENT'S VIEW.
17 THE VICTIM, THE WHO OF THE VICTIM IS ALSO VERY
18 AGGRAVATING BECAUSE THIS IS ULTIMATELY THE UNITED STATES
19 AND ITS TAXPAYERS WHO FUNDED ALL OF THIS. AND NOT ONLY IS
20 THE UNITED STATES A VICTIM, BUT THE COURT IN A VERY REAL
21 SENSE IS A VICTIM OF THIS OFFENSE BECAUSE OF THE FALSE
22 PROBATION REPORT THAT WAS FILED.
23 THE WHAT OF THIS IS OBVIOUSLY PPP LOANS. RIGHT
24 NOW IT'S IMPOSSIBLE TO ESTIMATE THE SCOPE OF THE FRAUD
25 THAT TOOK PLACE IN THAT PROGRAM. THERE WAS AN NBC
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1 ARTICLE, I THINK IT WAS PUBLISHED ON FEBRUARY 1ST, ALL WE
2 REALLY KNOW SO FAR IS THAT THERE HAVE BEEN 1,044 PEOPLE
3 PROSECUTED FOR COVID-RELATED FRAUD. THAT ARTICLE
4 ESTIMATED THAT $80 BILLION OF THE OVER $800 BILLION OF PPP
5 LOANS ARE PROBABLY GOING TO BE FRAUDULENT, SO IT IS A VERY
6 IMPORTANT ISSUE FOR THE GOVERNMENT IN TERMS OF THE DETER-
7 RENCE, BOTH SPECIFIC DETERRENCE TO MS. BETHEA AND GENERAL
8 DETERRENCE FOR FUTURE PROGRAMS LIKE THIS. HOPEFULLY WE
9 DON'T EXPERIENCE ANOTHER GLOBAL PANDEMIC IN OUR LIFE
10 TIMES; BUT IF WE DO, IT JUST CANNOT BE COUNTENANCED.
11 THE WHEN OF THIS CASE INVOLVED RIGHT IN THE
12 MIDDLE OF THE COVID PANDEMIC. MS. BETHEA WAS RELEASED
13 FROM PRISON IN EARLY OCTOBER OF 2020, SHE COMMITTED THIS
14 OFFENSE IN MARCH OF 2021, SO IT'S LESS THAN 6 MONTHS OF
15 SUPERVISED RELEASE. IT WAS ALSO AFTER JUST SERVING A 24
16 MONTH SENTENCE FROM THIS COURT.
17 THE WHERE OF THE OFFENSE IS OBVIOUSLY HERE, BUT
18 IT'S ALSO IN FLORIDA. SHE TRAVELED TO FLORIDA WHILE ON
19 SUPERVISED RELEASE, LIED ABOUT IT, AND THEN STAYED IN THE
20 TRUMP INTERNATIONAL HOTEL IN SUNNY ISLES, FLORIDA. THOSE
21 ARE AGGRAVATING FACTORS.
22 THE HOW OF THE OFFENSE IS VERY AGGRAVATING.
23 THE SPECIFICS OF THE OFFENSE, THE FICTITIOUS BUSINESS, THE
24 COURT HAS INDICATED THE FRAUDULENT SCHEDULE C, SAYING ON
25 THE APPLICATION THAT SHE HAD NOT BEEN CONVICTED OF A FRAUD
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1 OFFENSE, THOSE ARE ALL AGGRAVATING IN AND OF THEMSELVES;
2 BUT THEN YOU HAVE TO LAYER ON THE FALSE STATEMENT IN HER
3 SUPERVISION REPORT. SHE MADE THREE FALSE STATEMENTS. SHE
4 SAID THAT SHE HADN'T -- SHE HAD ONLY RECEIVED $200 A MONTH
5 WHEN SHE GOT THIS LOAN, SAID IT WAS A PAYMENT FROM HER,
6 THE FATHER OF HER CHILD. SHE SAID THAT SHE HAD NOT HAD
7 ANY EXPENSES OVER $500, AND WE KNOW THAT'S FALSE FROM THE
8 HOTEL RECEIPTS AND THE PLASTIC SURGERY RECEIPT; AND THEN
9 SHE TOLD HER PROBATION OFFICER SHE HAD NOT TRAVELED
10 OUTSIDE THE STATE OF TENNESSEE, AND, OBVIOUSLY, THAT WAS
11 FALSE.
12 SO THEN, THEN WE ASK THE QUESTION REALLY THE
13 WHY OF THIS, AND THIS IS WHAT REALLY IS THE MOST AGGRAVA-
14 TION OF THIS CASE. THERE ARE CERTAINLY PEOPLE WHO COMMIT
15 FRAUD AND STEAL BECAUSE THEY'RE TRYING TO MAKE ENDS MEET.
16 THAT'S NOT WHAT THIS CASE IS ABOUT. MS. BETHEA STOLE PPP
17 LOAN PROCEEDS AND THEN TOOK THE MONEY TO STAY AT AN
18 INTERNATIONAL RESORT WITH HER FATHER FOR A WEEK AND ALSO
19 UNDERWENT AN ELECTIVE COSMETIC SURGERY, ALL AT TAXPAYER'S
20 EXPENSE. SO FOR THOSE REASONS, YOUR HONOR, THE GOVERNMENT
21 BELIEVES A SERIOUS SENTENCE IS MANDATED. THE GUIDELINES
22 CALL FOR 57 TO 71 MONTHS, WE'RE REQUESTING 57 MONTHS ON
23 THE NEW OFFENSE; BUT THEN, AS I INDICATED, WE'RE REQUEST-
24 ING THE TOP OF THE GUIDELINES FOR HER VIOLATION OF
25 SUPERVISION; BELIEVE THERE'S CERTAINLY A RECORD, IF THE
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25
1 COURT BELIEVES THAT'S INSUFFICIENT, IT CAN GO UP, BUT WE
2 BELIEVE THAT A SERIOUS SENTENCE IS WARRANTED IN THIS CASE.
3 THANK YOU, YOUR HONOR.
4 THE COURT: THANK YOU, MR. HEAVENER.
5 ALL RIGHT. MR. HUDSON, YOUR ARGUMENT ON BEHALF
6 OF THE DEFENDANT.
7 MR. HUDSON: IF THE COURT PLEASE, SUBJECT TO
8 THE OBJECTIONS THAT I MADE TO THE GOVERNMENT'S POSITION ON
9 THEIR NOTICE OF OBJECTIONS, THE COURT'S RULING, I -- IF
10 THE GOVERNMENT IS ASKING FOR THE BOTTOM OF THE GUIDELINES
11 OF 57 MONTHS, THERE'S NOTHING REALLY I CAN SAY OTHER THAN
12 I WOULD ASK ON BEHALF OF MS. BETHEA THAT THE GOVERNMENT
13 ACCEPT THAT RECOMMENDATION IF YOUR HONOR DECIDES TO
14 SENTENCE HER ABOVE THE BOTTOM OF THE GUIDELINES.
15 I WILL ALSO POINT OUT THAT UPON HER ARREST SHE
16 CONFESSED HER GUILT, SHE -- PURSUANT TO A CASTIGAR LETTER
17 AND GAVE A FULL DEBRIEFING TO THE GOVERNMENT IN HOPES OF
18 EARNING A 5K1.1 DOWNWARD DEPARTURE MOTION. THE GOVERNMENT
19 HAS NOT FOUND THAT AT THIS POINT, IT'S SOMETHING THAT
20 THEY'RE -- DON'T FEEL LIKE SHE'S EARNED AT THIS POINT. SO
21 SHE HAS MADE ATTEMPTS, YOUR HONOR, TO FULLY, FULLY
22 COOPERATE WITH THE GOVERNMENT REGARDING THIS MATTER.
23 AS TO THE VIOLATION, YOUR HONOR, MS. BETHEA
24 ASKS THAT RATHER THAT SHE BE GIVEN AN ADDITIONAL --
25 CONSIDER HER COOPERATION, THAT SHE BE, INSTEAD OF GETTING
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26
1 ADDITIONAL TIME ON THAT, THAT HER SUPERVISED RELEASE
2 SIMPLY BE EXTENDED. THIS PROBABLY WOULDN'T HAPPEN ANYWAY,
3 YOUR HONOR, THAT'S PROBABLY TOO MUCH TO ASK FOR, BUT SHE
4 DOES ASK THAT I MAKE THAT REQUEST.
5 I THINK SHE DOES WANT TO MAKE SOME REMARKS TO
6 THE COURT.
7 THE COURT: ALL RIGHT, MR. HUDSON, THANK YOU.
8 ALL RIGHT. MS. BETHEA, COME UP TO THE PODIUM
9 WITH YOUR ATTORNEY, PLEASE.
10 ALL RIGHT. IS THERE ANYTHING YOU WISH TO SAY
11 BEFORE I IMPOSE SENTENCE?
12 THE DEFENDANT: YES, SIR. FIRST I WOULD LIKE
13 TO SAY THAT I TAKE FULL RESPONSIBILITY FOR MY ACTIONS, FOR
14 THE CRIMES THAT I DID COMMIT, AND I KNOW THAT BY TAKING
15 FULL RESPONSIBILITY THERE'S ACCOUNTABILITY FOR THAT.
16 I WOULD LIKE ALSO TO SAY THAT, YOUR HONOR, ON
17 PAPER YOU CAN CLEARLY SEE THAT I HAVE HAD A LENGTHY
18 HISTORY WITH MONEY. I'VE STRUGGLED WITH IT FOR QUITE SOME
19 TIME. WHEN I WENT TO PRISON BEFORE, I HAD TO FACE A LOT
20 OF UGLY TRUTHS ABOUT MYSELF; AND I THOUGHT, OKAY, WELL,
21 THIS IS -- YOU KNOW, I'M DONE WITH THIS, AND THEN SHORTLY
22 AFTER I FOUND MYSELF RIGHT BACK IN THE SAME SITUATION.
23 I UNDERSTOOD AT THAT TIME I HAD TO DO SOMETHING
24 DIFFERENT, I HAD TO PUT THINGS IN PLACE, THAT IT WASN'T
25 JUST AS EASY AS IT -- JUST GOING TO PRISON AND SAY, OKAY,
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1 I'M DONE WITH THIS ACTIVITY. THIS IS SOMETHING THAT I HAD
2 TRUTHFULLY ENGAGED IN FOR A VERY LONG TIME. I'M VERY
3 ASHAMED OF IT, AND, TRULY, YOUR HONOR, I -- I DON'T WANT
4 TO SWINDLE NO MORE. I DON'T WANT TO BE A LIAR AND A CHEAT
5 AND ALL THE THINGS THAT I HAVE BEEN FOR SO LONG. I'M DONE
6 WITH ALL OF THIS.
7 WHILE I'VE BEEN INCARCERATED THIS TIME, I HAVE
8 EXPERIENCED LIFE CHANGING THINGS. MY STEPFATHER, WHOM
9 I'VE KNOWN SINCE I WAS 17, THE FATHER OF MY BROTHER,
10 PASSED AWAY UNEXPECTEDLY. I WAS NOT THERE TO SAY GOOD-
11 BYE, I WASN'T THERE TO COMFORT MY BROTHER, MY MOTHER. SHE
12 WAS DIAGNOSED WITH CANCER SHORTLY AFTER, SHE'S WENT
13 THROUGH PROCEDURES, CHEMO, SURGERY; AND, YOUR HONOR, IN 40
14 YEARS I HAVE NOT -- I CAN'T TELL YOU ONE TIME MY MOTHER
15 SAID SHE'S EVER NEEDED ME, AND THEN SHE TOLD ME SHE NEEDED
16 ME, AND I'M NOT THERE, I'M NOT GOING TO BE THERE; AND
17 THOSE ARE LIFE CHANGING THINGS. SO I'M DONE WITH THIS. I
18 KNOW THAT, AGAIN, I TOOK RESPONSIBILITY FOR IT, AND I KNOW
19 THERE'S ACCOUNTABILITY FOR IT, AND I'LL DO WHAT I HAVE TO
20 DO, BUT I'M DONE WITH THIS. THANK YOU.
21 THE COURT: WHAT ARE YOU GOING TO DO ABOUT IT
22 TO CHANGE IT?
23 THE DEFENDANT: WELL, YOUR HONOR, I -- AFTER
24 THIS HAPPENED, I ACTUALLY SEEKED OUT COUNSELING. I KNOW
25 THAT THE COURT DON'T ACKNOWLEDGE IT, BUT I WAS DOING
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1 COUNSELING. THAT STARTED LATE IN 2021 UP UNTIL MY
2 INCARCERATION TO FIGURE OUT WHAT IT WAS BECAUSE I USED
3 MONEY AS A CRUTCH, AS A, A TOOL TO -- FOR ACCEPTANCE. SO
4 JUST TAKING THE MONEY AWAY DIDN'T HELP, I HAD TO WORK ON
5 MYSELF AND WORK ON THE THINGS THAT I HAD TO DEAL -- YOU
6 KNOW, HAVE PEOPLE PLEASING AND NOT WANTING TO SAY NO AND
7 FEELING GUILTY IF I TOLD MY CHILDREN NO, SO I WOULD
8 JUST -- YOU KNOW, IT'S SO MUCH THAT I'VE HAD TO -- THE
9 UGLY TRUTH OF MYSELF; AND I HAVE LEARNED TOOLS TO FIGHT
10 THAT, AND I HAVE A GREAT SUPPORT SYSTEM, BUT IT DON'T WORK
11 IF I LIE TO THEM; AND I'M DONE, I'M DONE LYING, I'M DONE
12 HIDING, I'M -- I'M MAKING THE STEPS THAT I NEED TO TO FIX
13 IT. IT'S NOT GOING TO HAPPEN OVERNIGHT BECAUSE, AS I
14 SAID, I'VE DEALT WITH THIS FOR PROBABLY 20 YEARS TRYING TO
15 GAIN ACCEPTANCE THROUGH WHATEVER MEANS, AND IT JUST SO
16 HAPPENED THAT I USED MONEY TO DO IT; BUT I'M GOING TO WORK
17 ON IT EVERY SINGLE DAY, AND THE LORD WILLING I MAY GET
18 HOME TO HUG MY MOTHER ONE LAST TIME. IT WILL BE WORTH IT
19 BECAUSE ALL THIS OTHER STUFF IS NOT EVEN WORTH IT. THE
20 TIME I'VE LOST WITH HER, MY CHILDREN, IT'S NOT -- NONE OF
21 IT IS WORTH IT.
22 THE COURT: WHEN YOU SAY YOU HAVE STRUGGLED
23 WITH MONEY ALL YOUR LIFE, WHAT DO YOU MEAN BY THAT?
24 THE DEFENDANT: I'VE STRUGGLED WITH USING IT
25 AS, AS A, A CRUTCH TO -- IF I FELT LONELY, MONEY BROUGHT
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1 PEOPLE AROUND. IF I FELT GUILTY FOR STUFF THAT, WITH MY
2 CHILDREN, MONEY APPEASED THEM. I SUFFERED WITH BODY
3 IMAGES SINCE I COULD, MIDDLE SCHOOL, SO MONEY HELPED ME
4 CHANGE IT. IT DIDN'T CHANGE ME ON THE INSIDE AND HOW I
5 FELT, BUT IT -- I JUST USED MONEY AS A, AS A TOOL.
6 THE COURT: YOU KNOW, MS. BETHEA, I'M NOT
7 WITHOUT SOME COMPASSION HERE, BUT FOR 22 YEARS, SINCE YOU
8 WERE 18 YEARS OF AGE, ANY OF THOSE TITLES YOU USED, LIAR,
9 SWINDLER, CHEAT, I WOULD ADD THE WORD THIEF --
10 THE DEFENDANT: YES, SIR.
11 THE COURT: -- COULD HAVE BEEN APPLIED TO YOU,
12 AND RIGHTLY SO.
13 THE DEFENDANT: YES, SIR.
14 THE COURT: YOU ACKNOWLEDGE THAT ALL OF YOUR
15 CRIMINAL HISTORY INVOLVES CRIMES OF DISHONESTY. YOU HAVE
16 LIED TO THIS COURT ON REPORTS FILED. I GUESS WHAT I'M
17 LOOKING FOR IS SOME ASSURANCE THAT I CAN BELIEVE ANYTHING
18 YOU'RE SAYING NOW.
19 THE DEFENDANT: I UNDERSTAND, YOUR HONOR, I
20 TRULY DO, AND I KNOW MY WORD ISN'T WORTH ANYTHING. I KNOW
21 THAT IT HAS TO BE SHOWED BY ACTIONS, AND I'M JUST HOPING
22 THAT I'LL HAVE THAT OPPORTUNITY BECAUSE I -- I AM, I THINK
23 THIS OF MYSELF, DISHONEST. I'VE BEEN DISHONEST NOT ONLY
24 WITH MY FAMILY, MY CHILDREN AND OTHERS, BUT WITH MYSELF,
25 AND IT'S HARD -- IT'S, IT'S HARD TO LOOK IN THE MIRROR AND
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1 SEE THIS PERSON, AND I DON'T WANT TO BE THAT PERSON ANY
2 LONGER. WHATEVER -- AGAIN, WHATEVER ACCOUNTABILITY I HAVE
3 TO DO AND GO THROUGH, THAT'S WHAT I HAVE TO DO, BUT I
4 DON'T WANT TO BE THAT ANYMORE. I DON'T WANT TO BE ANY OF
5 THOSE THINGS ANYMORE. AND PRIOR TO MY INCARCERATION, I
6 HAD OBTAINED A JOB AND I WAS WORKING AND DOING WHAT I
7 NEEDED TO DO. I JUST -- I DID IT TOO LATE.
8 THE COURT: ALL RIGHT, MS. BETHEA. EVERY
9 SENTENCING IN A CRIMINAL CASE IS DIFFICULT FOR THIS COURT.
10 THIS ONE IS PARTICULARLY DIFFERENT BECAUSE THERE IS SIMPLY
11 NOTHING THAT REASONABLY EXPLAINS WHY YOU HAVE MADE THE
12 DECISIONS YOU HAVE MADE. FOR 22 YEARS THAT THE COURT
13 KNOWS OF YOU HAVE LIED AND CHEATED AND STOLEN FROM OTHER
14 PEOPLE; AND I DON'T RECALL ALL THAT OCCURRED IN YOUR LAST
15 CASE HERE, BUT I KNOW YOU WERE SENTENCED IN THE MIDDLE OF
16 THAT GUIDELINE RANGE, NOT AT THE TOP. YOUR CRIMINAL
17 HISTORY CATEGORY AT THAT TIME WAS I, IT'S NOW IV.
18 WHAT I'M STRUGGLING WITH HERE IS THAT IN A
19 GENERAL SENSE IN SENTENCING WHAT I'M REQUIRED TO DO IS
20 BALANCE YOUR BEST INTEREST AGAINST THOSE OF THE PUBLIC'S
21 BEST INTEREST. I'M NOT SURE WHAT CAN BE DONE TO PROTECT
22 THE PUBLIC HERE BECAUSE AFTER SERVING 24 MONTHS IN FEDERAL
23 PRISON, YOU WERE WITHIN 6 MONTHS ENGAGED IN A SCHEME TO
24 FLEECE THE GOVERNMENT; AND IT'S NOT JUST THE GOVERNMENT,
25 WE TALK ABOUT THE GOVERNMENT, BUT IT'S TAXPAYERS. IT'S
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1 THEFT OF FUNDS INTENDED BY THE CONGRESS AND BY THE
2 EXECUTIVE FOR PEOPLE WHO HAD TRULY AND LEGITIMATELY BEEN
3 HARMED BY COVID, BY THE EPIDEMIC THAT SWEPT THIS COUNTRY.
4 TITLE 18, UNITED STATES CODE, SECTION 3553(A)
5 REQUIRES ME TO IMPOSE A SENTENCE HERE WHICH IS SUFFICIENT
6 BUT NOT GREATER THAN NECESSARY TO COMPLY WITH THE PURPOSES
7 OF SENTENCING ESTABLISHED BY THE UNITED STATES CONGRESS.
8 THOSE PURPOSES ARE LISTED IN THAT CODE SECTION, AND THE
9 COURT IS GIVEN A NUMBER OF FACTORS TO CONSIDER IN DETER-
10 MINING WHERE TO DRAW THAT LINE BETWEEN A SENTENCE
11 SUFFICIENT AND ONE GREATER THAN NECESSARY.
12 I HAVE NOW ESTABLISHED THE GUIDELINE RANGE IN
13 THIS CASE TO BE A RANGE OF 57 TO 71 MONTHS OF IMPRISON-
14 MENT. THAT'S ADVISORY, I'M NOT REQUIRED TO SENTENCE YOU
15 WITHIN THAT RANGE; BUT ORDINARILY THAT GUIDELINE RANGE IS
16 A GOOD INDICATION TO THE COURT OF WHERE WITHIN THE
17 STATUTORY RANGE A SENTENCE SHOULD BE IMPOSED. THE REASON
18 FOR THAT IS VERY SIMPLE, IT'S BECAUSE THE UNITED STATES
19 SENTENCING COMMISSION WAS DIRECTED BY CONGRESS TO
20 ESTABLISH THESE GUIDELINE RANGES, BUT TO DO SO ONLY AFTER
21 THOROUGH CONSIDERATION OF ALL THE 3553(A) FACTORS, AND MY
22 EXPERIENCE, WHICH IS BROAD IN THIS AREA, INDICATES THAT
23 THE UNITED STATES SENTENCING COMMISSION IN MOST CASES HAS
24 DONE EXACTLY THAT.
25 SINCE THE TIME THE SENTENCING REFORM ACT WAS
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1 PASSED IN 1984 AND THE SENTENCING COMMISSION WAS ESTAB-
2 LISHED, THROUGH NOW I HAVE DEALT WITH THESE GUIDELINES IN
3 ONE WAY OR ANOTHER, EITHER AS AN ATTORNEY REPRESENTING
4 DEFENDANTS CHARGED WITH CRIME IN THE FEDERAL COURTS OR AS
5 A JUDGE. THAT'S A PERIOD OF ALMOST 40 YEARS. I HAVE
6 CERTAINLY SEEN FRAUD CASES THAT WERE MUCH MORE SIGNIFICANT
7 IN TERMS OF THE DOLLARS LOST THAN THIS ONE, BUT I'M NOT
8 SURE I HAVE SEEN A CASE OF SUCH EGREGIOUS FRAUD IN ALL THE
9 YEARS I'VE BEEN DOING THIS.
10 IT APPEARS ON PAPER, MS. BETHEA, THAT YOU HAVE
11 LEARNED ABSOLUTELY NOTHING SINCE THAT FIRST CONVICTION AT
12 THE AGE OF 18. IT CERTAINLY APPEARS TO THE COURT THAT YOU
13 LEARNED ABSOLUTELY NOTHING FROM THE LAST 24 MONTH SENTENCE
14 IMPOSED IN THIS COURT. TO USE THE GOVERNMENT'S WORDS IN
15 THEIR SENTENCING MEMORANDUM, YOU JUST DON'T GET IT.
16 THAT'S WHAT IT APPEARS.
17 ANOTHER REASON WHY THAT GUIDELINE RANGE IS
18 IMPORTANT TO ME THOUGH, ASIDE AND APART FROM THE FACT THAT
19 IT IS IN MY VIEW GENERALLY REFLECTIVE OF THE 3553(A)
20 FACTORS, IS BECAUSE A SENTENCE WITHIN THAT PROPERLY
21 CALCULATED GUIDELINE RANGE PROMOTES UNIFORMITY IN
22 SENTENCING, WHICH IS ANOTHER OF THE FACTORS CONGRESS HAS
23 LISTED FOR APPROPRIATE CONSIDERATION BY THE DISTRICT COURT
24 IN IMPOSING SENTENCE.
25 NOW, I WILL SAY THIS TO YOU, IN MY VIEW IT WAS
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1 NOT A PARTICULARLY CLOSE CALL ON THE GOVERNMENT'S
2 OBJECTIONS; BUT EVEN IF I HAD SUSTAINED -- HAD NOT
3 SUSTAINED THE GOVERNMENT'S OBJECTIONS HERE, EVERY ONE OF
4 THOSE ISSUES RAISED BY THE UNITED STATES IS AN AGGRAVATING
5 FACTOR THAT IN MY VIEW WAS NOT PROPERLY ACCOUNTED FOR IN
6 THE GUIDELINES RANGE AND EACH ONE OF THEM JUSTIFIES AN
7 UPWARD VARIANCE OF THE GUIDELINE RANGE.
8 I'M REQUIRED TO CONSIDER THE SERIOUSNESS OF THE
9 OFFENSE. THIS OFFENSE VIEWED IN A VACUUM IS NOT THE MOST
10 SERIOUS, MOST SIGNIFICANT THAT I EVER SEE. IN FACT, MORE
11 OFTEN THAN NOT I'M DEALING WITH DRUG DEALERS WHO HAVE
12 DISTRIBUTED HUGE QUANTITIES, POUNDS AND POUNDS AND KILOS
13 AND KILOS OF DANGEROUS DRUGS, OR WHO HAVE COMMITTED
14 VIOLENT OFFENSES; BUT WHEN TAKEN IN TOTAL IN CONTEXT OF
15 YOUR LIFE OVER THE LAST 20 YEARS, THIS BECOMES A VERY
16 SERIOUS OFFENSE. IT'S SERIOUS BECAUSE OF THE NATURE OF
17 IT, WHICH WAS TAKING MONEY APPROPRIATED BY CONGRESS AND
18 INTENDING FOR VULNERABLE VICTIMS AND USING IT TO GO TO
19 FLORIDA TO SPEND TIME AT THE TRUMP RESORT AND HAVE SOME
20 COSMETIC SURGERY DONE, APPARENTLY.
21 IT'S CERTAINLY NOT THE AMOUNT OF MONEY INVOLVED
22 HERE THAT MAKES THIS SO SERIOUS. IT IS THE WHEN, THE
23 WHAT, THE HOW THAT MR. HEAVENER HAS DISCUSSED THAT MAKES
24 THIS SO SERIOUS.
25 IN ADDITION TO CONSIDERING THE SERIOUSNESS OF
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1 THE OFFENSE, I'M ALSO REQUIRED TO CONSIDER THE NEED FOR
2 THE SENTENCE IMPOSED TO PROMOTE RESPECT FOR THE LAW. I
3 WON'T DISCOUNT WHAT YOU'VE SAID TO ME TODAY, MS. BETHEA;
4 BUT AS WE STAND HERE WITH THE PAPER RECORD BEFORE THIS
5 COURT, YOU HAVE ABSOLUTELY NO RESPECT FOR THE LAW, OR FOR
6 THE COURT, FOR THAT MATTER. I'LL GET TO THAT REVOCATION
7 MATTER IN A FEW MINUTES.
8 AS I INDICATED, YOUR FIRST CONVICTION WAS AT
9 THE AGE OF 18 FOR SHOPLIFTING AND FOR GIVING FALSE
10 INFORMATION TO A LAW ENFORCEMENT OFFICER, STEALING AND
11 LYING. YOU RECEIVED SUSPENDED SENTENCES FOR THOSE
12 OFFENSES. AT AGE 20 YOU WERE CONVICTED OF THEFT OF
13 PROPERTY LESS THAN $500 BY CHECK, 90 DAYS IN JAIL
14 SUSPENDED TO 24 MONTHS PROBATION. IN 2011 -- YOU HAD A
15 PRETTY GOOD STRETCH BETWEEN 20 AND 28; BUT THEN WHEN YOU
16 WERE 28, CONVICTED OF ATTEMPT TO UTTER FORGED INSTRUMENTS
17 AND THEFT OF $500 OR LESS IN THE SULLIVAN COUNTY CRIMINAL
18 COURT. ONCE AGAIN IT WAS SUSPENDED TO PROBATION. THEN
19 SOME TRAFFIC OFFENSES; BUT AT 33 CONVICTED OF IDENTITY
20 THEFT, FRAUDULENT USE OF A CREDIT CARD AND IDENTITY THEFT
21 IN HAWKINS COUNTY. THEN THE SAME YEAR, THEFT UNDER A
22 THOUSAND DOLLARS, MULTIPLE COUNTS OF THAT, SUSPENDED TO
23 TIME SERVED; AND THEN AT AGE 35, CONSPIRACY TO COMMIT WIRE
24 FRAUD AND WIRE FRAUD IN THIS COURT, FOR WHICH THE COURT
25 IMPOSED A 24 MONTH TERM OF IMPRISONMENT. YOU HAVE CLEARLY
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1 VIOLATED THE TERMS OF YOUR SUPERVISION WITHIN A VERY SHORT
2 PERIOD OF TIME OF BEING RELEASED FROM PRISON.
3 SO ALL OF THOSE DESCRIPTIVE TERMS THAT YOU USED
4 AND THAT I USED A FEW MINUTES AGO FULLY APPLY HERE. I
5 DON'T EVEN LIKE THOSE WORDS, LIAR, SWINDLER, CHEAT; AND
6 NOT JUST A THIEF HERE, BUT A SERIAL THIEF WITH REPEATED
7 THEFTS OF OTHER PEOPLE'S PROPERTY.
8 I COMMEND YOU FOR SEEKING COUNSELING. YOU
9 INDICATED THAT YOU HAD TO AFTER THE PRIOR CONVICTION FACE
10 SOME UGLY TRUTHS. I'D SUGGEST TO YOU THAT GETTING
11 INVOLVED IN THE SAME KIND OF CONDUCT LESS THAN 6 MONTHS
12 AFTER RELEASE IS NOT FACING THOSE TRUTHS; AND THAT UNTIL
13 YOU FACE THOSE TRUTHS AND DEAL HONESTLY WITH THEM, YOU
14 WILL CONTINUE TO ENGAGE IN THE SAME KIND OF CONDUCT. SO
15 THERE HAS TO BE A SENTENCE IMPOSED HERE THAT WILL PROMOTE
16 RESPECT FOR THE LAW ON YOUR PART.
17 THESE LAWS ARE WRITTEN NOT AS SUGGESTIONS, NOT
18 AS SOMETHING YOU OUGHT TO DO UNLESS YOU FEEL LIKE DOING
19 SOMETHING ELSE, THEY ARE BOUNDARIES ON THE CONDUCT THAT IS
20 PERMISSIBLE IN A CIVILIZED SOCIETY.
21 I HAVE TO CONSIDER A RELATED FACTOR, THAT OF
22 IMPOSING A SENTENCE THAT WILL AFFORD AN ADEQUATE
23 DETERRENCE TO CRIMINAL CONDUCT. TWO KINDS OF DETERRENCE
24 HERE, BOTH -- ONE IS SPECIFIC TO YOU, THE OTHER IS MORE
25 GENERAL TO THE PUBLIC AT LARGE. AS WE STAND HERE TODAY,
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1 IN SPITE OF WHAT YOU SAID TO ME, MS. BETHEA, I HAVE NO
2 REAL CONFIDENCE THAT EVEN A STATUTORY MAXIMUM SENTENCE
3 HERE WOULD DETER YOU IN THE LONG RUN FROM COMMITTING
4 FURTHER OFFENSES. I HOPE I AM WRONG ABOUT THAT FOR YOUR
5 SAKE.
6 YOU HAVE TO FIGURE OUT WHAT'S MORE IMPORTANT TO
7 YOU IN LIFE, STEALING OR TAKING CARE OF YOUR CHILDREN AND
8 YOUR MOM; AND ALTHOUGH THERE IS SOME SIGNIFICANT UNDER-
9 LYING MENTAL ILLNESS HERE THAT IS KNOWN, SOME SERIOUS
10 SUBSTANCE ABUSE PROBLEMS, I DON'T HAVE ANYTHING BEFORE ME
11 TO SUGGEST THAT THESE OFFENSES WERE EVEN CONTRIBUTED TO BY
12 THOSE FACTORS; AND YOU WEREN'T USING THIS MONEY TO BUY
13 DRUGS. AT LEAST IN MY EXPERIENCE I'VE NOT SEEN THESE KIND
14 OF OFFENSES NECESSARILY TO THIS EXTENT ASSOCIATED WITH
15 ANXIETY AND BIPOLAR WHICH ARE THINGS THAT I KNOW EXIST
16 FROM THE PRESENTENCE REPORT.
17 GENERAL DETERRENCE IS AN IMPORTANT FACTOR HERE
18 TOO. THESE ARE THEFT OFFENSES. THEFT OFFENSES OR
19 OFFENDERS WHO COMMIT THEFT OFFENSES ARE AMONG THE HIGHEST
20 STATISTICALLY SPEAKING REOFFENDERS. IN OTHER WORDS,
21 THERE'S A GREATER PERCENTAGE OR A NEARLY GREATER PERCENT-
22 AGE WITH PEOPLE WHO COMMIT THEFT OFFENSES THAN THERE ARE
23 WITH ANY OTHERS. THE MENTAL HEALTH ISSUES AND THE
24 SUBSTANCE ABUSE ISSUES SIMPLY INCREASE THAT RISK, AND SO
25 THERE HAS TO BE A DETERRENT EFFECT THAT IS MESSAGED TO A
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1 MUCH BROADER AUDIENCE THAT THESE KINDS OF REPEAT OFFENSES
2 SIMPLY WILL NOT BE TOLERATED.
3 CONGRESS SPECIFICALLY DIRECTED ME TO CONSIDER
4 THE NEED TO PROTECT THE PUBLIC HERE. I HONESTLY DO NOT
5 KNOW, MS. BETHEA, HOW TO PROTECT THE PUBLIC HERE EXCEPT TO
6 PUT YOU IN JAIL WHERE YOU CAN OBTAIN MENTAL HEALTH
7 TREATMENT AND AN APPROPRIATE EVALUATION, WHERE YOU CAN
8 OBTAIN TREATMENT FOR SUBSTANCE ABUSE AND WHERE YOU CAN
9 HOPEFULLY DEAL WITH THESE PROBLEMS BUT AT THE SAME TIME
10 PROTECTING OTHER PEOPLE'S PROPERTY FROM YOUR CONDUCT.
11 I'M TOLD TO CONSIDER THE NATURE AND CIRCUM-
12 STANCES OF YOUR INVOLVEMENT HERE. AS I SAID TO YOU, EVEN
13 IF I HAD NOT APPLIED THE ENHANCEMENTS THAT RESULTED FROM
14 THE GOVERNMENT'S OBJECTION, I WOULD HAVE CONSIDERED ALL OF
15 THOSE TO BE SERIOUS AGGRAVATING FACTORS HERE, ANY ONE OF
16 WHICH WOULD HAVE JUSTIFIED AN UPWARD VARIANCE FROM THE
17 GUIDELINE RANGE CALCULATED BY THE PROBATION OFFICER, AND
18 THE THREE COMBINED JUSTIFY IN A VERY, VERY LARGE UPWARD
19 VARIANCE.
20 THERE WERE SIGNIFICANT LOSSES TO U.S. TAXPAYERS
21 HERE, NOT ONLY FROM YOUR FRAUDULENT LOAN TO YOURSELF, BUT
22 FROM THE FACT THAT YOU RECRUITED OTHERS TO ENGAGE IN THE
23 SAME KIND OF CONDUCT. THE FACT THAT YOU'VE BEEN OUT OF
24 PRISON FOR LESS THAN 6 MONTHS; AND I TEND TO AGREE WITH
25 THE GOVERNMENT THAT WHAT YOU DID WITH THE MONEY HERE IS AN
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1 AGGRAVATING FACTOR AS WELL. YOU WEREN'T STEALING MONEY TO
2 FEED YOURSELF OR TO FEED YOUR CHILDREN, YOU WEREN'T
3 STEALING MONEY TO PAY THE ELECTRIC BILLS OR THE WATER
4 BILLS, YOU USED IT FOR SOMETHING ELSE; AND THE SIMPLE FACT
5 OF THE MATTER IS THAT EVERY PRIOR CONVICTION EXCEPT FOR
6 SOME TRAFFIC OFFENSES INVOLVES THE VERY SAME KIND OF
7 CONDUCT.
8 AND I WOULD NOTE, AND I'M NOT GOING TO HOLD
9 CHARGED CONDUCT OF DISMISSED CASES AGAINST YOU, BUT THE
10 SAME THING CAN BE TRUE OF ALL THE CASES YOU'VE BEEN
11 CHARGED WITH THAT WERE DISMISSED. FROM WORTHLESS CHECKS
12 TO FORGERY, TO ATTEMPTED THEFT. I DON'T MAKE ANY
13 CONCLUSION ABOUT WHETHER YOU WERE GUILTY OF THOSE THINGS
14 OR NOT, I JUST NOTE THAT THEY ARE OF THE VERY SAME TYPE OF
15 CONDUCT THAT LED TO ALL OF THESE CONVICTIONS.
16 I'M ALSO REQUIRED TO CONSIDER UNDER ADVISORY
17 GUIDELINE -- WELL, NOT REQUIRED, I ALSO CONSIDER UNDER
18 ADVISORY GUIDELINES YOUR PERSONAL HISTORY AND CHARAC-
19 TERISTICS AS WELL. UNDER THE GUIDELINES THOSE FACTORS ARE
20 TYPICALLY IRRELEVANT. UNDER EXISTING CASE LAW AND DE-
21 VELOPING CASE LAW FROM THE SIXTH CIRCUIT THEY ARE REFERRED
22 TO BY THE SIXTH CIRCUIT AS UNFAVORED. THE BOTTOM LINE IS
23 THAT PERSONAL HISTORY AND CHARACTERISTICS TYPICALLY HAVE
24 VERY LITTLE TO DO WITH THE SENTENCE TO BE IMPOSED.
25 THERE ARE CERTAINLY SOME FACTORS HERE THAT MAKE
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1 YOU SYMPATHETIC. I MEAN, YOU HAVE THREE CHILDREN, ALL OF
2 WHOM WHO NEED A GOOD PARENT IN THEIR LIFE. YOU'RE NOT
3 THERE TO PROVIDE THAT. YOU HAVEN'T BEEN THERE TO PROVIDE
4 THAT. YOUR MOTHER'S CONDITION BREAKS MY HEART. SHE NEEDS
5 YOU, THERE'S NO QUESTION ABOUT THAT; BUT COULD SHE COUNT
6 ON YOU? I DON'T KNOW.
7 YOUR AUNT'S LETTER THAT WAS SUBMITTED BY
8 MR. HUDSON WAS SOMETHING THAT TOUCHED ME, TALKED ABOUT
9 YOUR MOTHER'S BATTLE WITH LUNG CANCER, ASKED ME TO PUT YOU
10 ON HOME CONFINEMENT, WHICH I CANNOT DO. MAYBE THE BETTER
11 WAY TO SAY THAT IS WHICH I AM UNWILLING TO DO UNDER THESE
12 CIRCUMSTANCES.
13 YOU KNOW, MR. HUDSON DOES POINT TO SOME
14 POTENTIALLY MITIGATING FACTORS, AND YOU'VE TOUCHED ON SOME
15 AS WELL. YOUR WORDS AT LEAST ADDRESS RESPONSIBILITY AND
16 ACCOUNTABILITY FOR THE CONDUCT, BUT IT'S VERY LATE COMING.
17 YOU DID IN FACT ADMIT YOUR GUILT ON YOUR
18 ARREST. YOU APPARENTLY GAVE A DEBRIEFING IN AN ATTEMPT TO
19 COOPERATE EVEN THOUGH IT DIDN'T RISE TO THE LEVEL OF
20 SUBSTANTIAL ASSISTANCE UNDER THE GUIDELINES. IT SEEMS TO
21 ME, MS. BETHEA, THAT THE OVERRIDING CONCERNS HERE ARE,
22 NUMBER ONE, THAT THE SENTENCE HAS TO PROMOTE RESPECT FOR
23 THE LAW ON YOUR PART. THE SENTENCE HAS TO, AS BEST I CAN
24 WITH A JAIL SENTENCE, DETER YOU FROM FURTHER CRIMINAL
25 CONDUCT. IN OTHER WORDS, IT HAS TO STOP RIGHT HERE. IT
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1 HAS TO PROTECT THE PUBLIC. I MEAN, OVER THE YEARS I'VE
2 HEARD MANY VICTIMS OF PROPERTY CRIMES TELL ME THAT THEY
3 FELT LIKE THEIR PRIVATE LIFE WAS INVADED; AND THAT --
4 THESE ARE NOT BURGLARIES OR ANYTHING OF THAT SORT, BUT,
5 NEVERTHELESS, THEY IMPLICATE PEOPLE WHO LOSE MONEY, EVEN
6 IF THEY ARE BUSINESSES OR THE GOVERNMENT, TAXPAYERS.
7 AND YOU WERE NOT ALONE IN THIS CONDUCT.
8 MR. HEAVENER TELLS ME THAT THERE HAVE BEEN MORE THAN A
9 THOUSAND PROSECUTIONS RELATED TO THIS KIND OF FRAUD, AND
10 IT, TO SOME DEGREE, WAS ANTICIPATED BECAUSE EVERY TIME
11 THERE IS A MASSIVE GOVERNMENT PROGRAM FUNDED OF THIS TYPE,
12 THERE ARE PEOPLE WHO WILL TRY TO FIGURE OUT A WAY TO GET
13 AROUND THE LAW AND GET SOMETHING FOR NOTHING.
14 THE UNITED STATES HAS ASKED ME FOR A BOTTOM OF
15 THE GUIDELINES RANGE SENTENCE HERE. I DON'T OFTEN CON-
16 SIDER SOMETHING HIGHER THAN THE GOVERNMENT IS ASKING ME
17 FOR, BUT I AM SERIOUSLY CONSIDERING IT IN THIS CASE.
18 FRANKLY, I AM A LITTLE BIT SURPRISED THAT THE GOVERNMENT
19 IS NOT ASKING FOR THE TOP OF THE GUIDELINES HERE AND
20 STATUTORY MAXIMUM WITH RESPECT TO THE REVOCATION.
21 IN MY VIEW, MS. BETHEA, THE BOTTOM OF THE
22 GUIDELINES RANGE SENTENCE HERE IN THIS CASE UNDER THE
23 CIRCUMSTANCES SURROUNDING THIS CASE AND THIS CASE ALONE TO
24 SOME DEGREE REWARDS YOUR PATTERN OF CONDUCT. IT ENDANGERS
25 THE PUBLIC. IT DOESN'T PROPERLY PROMOTE RESPECT FOR THE
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41
1 LAW. AND SO IN THIS PARTICULAR CASE I'M GOING TO DECLINE
2 THE GOVERNMENT'S INVITATION TO IMPOSE A BOTTOM OF THE
3 GUIDELINE RANGE SENTENCE; AND, FRANKLY, THE REASON FOR MY
4 HESITATION A LITTLE BIT IS I'M TRYING TO THINK OF A GOOD
5 REASON NOT TO IMPOSE THE 71 MONTH TOP OF THE GUIDELINE
6 RANGE SENTENCE.
7 I DO ACKNOWLEDGE THAT YOU MADE A CONFESSION OF
8 GUILT IMMEDIATELY UPON YOUR ARREST, AND YOU AT LEAST TRIED
9 TO PROVIDE INFORMATION TO THE GOVERNMENT, THOSE ARE THE
10 ONLY MITIGATING FACTORS THAT I SEE HERE, SO I WON'T IMPOSE
11 A SENTENCE AT THE TOP OF THE RANGE HERE.
12 I'M GOING TO IMPOSE A SENTENCE CLOSER TO THE
13 MIDPOINT OF THE GUIDELINE RANGE. I'M GOING TO IMPOSE A 66
14 MONTH TERM OF INCARCERATION AS TO THIS CASE FOR WHICH YOU
15 STAND CONVICTED HERE. AND I HAVE TO ADMIT TO YOU,
16 MS. BETHEA, THAT BASED ON THE RECORD, NOT BASED ON WHAT
17 YOU SAY, BUT WHAT YOU'VE DONE, THAT THAT DOES NOT COMFORT
18 ME IN TERMS OF PROTECTING THE PUBLIC.
19 SO HAVING CONSIDERED THE NATURE AND CIRCUM-
20 STANCES OF THE OFFENSE, YOUR HISTORY AND CHARACTERISTICS,
21 THE ADVISORY GUIDELINE RANGE WHICH APPLIES TO THIS CASE,
22 AS WELL AS ALL OF THE OTHER FACTORS LISTED IN TITLE 18,
23 UNITED STATES CODE, SECTION 3553(A), IT IS PURSUANT TO THE
24 SENTENCING REFORM ACT OF 1984 THE JUDGMENT OF THIS COURT
25 THAT ON COUNTS 2 AND 8 THE DEFENDANT, LESLIE DANIEL
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42
1 BETHEA, IS HEREBY COMMITTED TO THE CUSTODY OF THE BUREAU
2 OF PRISONS TO BE IN PRISON FOR A TERM OF 66 MONTHS AS TO
3 COUNT 1, AND 60 MONTHS AS TO COUNT -- EXCUSE ME, NOT COUNT
4 1, COUNT 2, 66 MONTHS AS TO COUNT 2, 60 MONTHS AS TO COUNT
5 8 TO RUN CONCURRENTLY TO EACH OTHER FOR A NET EFFECTIVE
6 SENTENCE OF 66 MONTHS.
7 THE ONE THING I WILL DO FOR YOU THAT HOPEFULLY
8 WILL GIVE YOU A, THE HOPE OF HAVING THESE THINGS ALL
9 CONCLUDED IS THAT I WILL ORDER THAT THIS SENTENCE BE RUN
10 CONCURRENTLY TO ANY SENTENCE THAT MAY BE IMPOSED IN THE
11 PENDING PROBATION VIOLATIONS IN HAWKINS COUNTY, TENNESSEE
12 CRIMINAL COURT DOCKET NUMBERS CC-16-CR-199, 16-CR-200,
13 16-CR-204 AND 16-CR-205. THIS SENTENCE SHALL, HOWEVER,
14 RUN CONSECUTIVELY TO THE SENTENCE TO BE IMPOSED IN THE
15 PENDING SUPERVISED RELEASE VIOLATION IN UNITED STATES
16 DISTRICT COURT DOCKET NUMBER 2:18-CR-25.
17 IT IS FURTHER ORDERED THAT YOU SHALL MAKE
18 RESTITUTION IN THE AMOUNT OF $20,805 TO THE VICTIMS
19 OUTLINED IN THE PRESENTENCE REPORT, AND IT HAS OCCURRED TO
20 ME, AND I HAVE CONSIDERED WHETHER RESTITUTION SHOULD BE
21 FOR THE FULL AMOUNT OF THE LOSS OR NOT, BUT THE LIKELIHOOD
22 IS IT'S NOT GOING TO BE PAID IN ANY EVENT, THE GOVERNMENT
23 HASN'T OBJECTED TO THE 20,805 NUMBER, SO THE RESTITUTION
24 WILL BE $20,805. I FIND, HOWEVER, THAT YOU DOT NOT HAVE
25 THE ABILITY TO PAY INTEREST ON THE RESTITUTION AND
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43
1 INTEREST IS WAIVED. THE FULL AMOUNT OF RESTITUTION MAY BE
2 ENFORCED BY THE GOVERNMENT AT ANY TIME PURSUANT TO TITLE
3 18, UNITED STATES CODE, SECTIONS 3612 AND 3664(M).
4 I WILL RECOMMEND THAT YOU RECEIVE 500 HOURS OF
5 SUBSTANCE ABUSE TREATMENT FROM THE BOP'S RESIDENTIAL DRUG
6 ABUSE TREATMENT PROGRAM. I WILL RECOMMEND THAT YOU
7 RECEIVE A COMPLETE MENTAL AND PHYSICAL HEALTH EVALUATION
8 AND NEEDED TREATMENT WHILE IN THE CUSTODY OF THE BUREAU OF
9 PRISONS.
10 UPON RELEASE FROM IMPRISONMENT, YOU SHALL BE
11 PLACED ON SUPERVISED RELEASE FOR A TERM OF 3 YEARS AS TO
12 EACH COUNT TO RUN CONCURRENTLY FOR A NET EFFECTIVE TERM OF
13 3 YEARS OF SUPERVISED RELEASE.
14 WHILE ON SUPERVISED RELEASE YOU SHALL NOT
15 COMMIT ANOTHER FEDERAL, STATE OR LOCAL CRIME. YOU MUST
16 NOT UNLAWFULLY POSSESS AND YOU MUST REFRAIN FROM THE USE
17 OF ANY CONTROLLED SUBSTANCE. YOU MUST COMPLY WITH THE
18 STANDARD CONDITIONS THAT HAVE BEEN ADOPTED BY THIS COURT
19 IN LOCAL RULE 83.10. IN PARTICULAR YOU MUST NOT OWN,
20 POSSESS OR HAVE ACCESS TO ANY FIREARM, ANY AMMUNITION, A
21 DESTRUCTIVE DEVICE OR ANY DANGEROUS WEAPON. YOU MUST
22 COOPERATE IN THE COLLECTION OF DNA AS DIRECTED.
23 IN ADDITION, YOU SHALL COMPLY WITH THE FOLLOW-
24 ING SPECIAL CONDITIONS: FIRST, YOU SHALL PARTICIPATE IN A
25 PROGRAM OF TESTING AND TREATMENT FOR DRUG AND/OR ALCOHOL
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1 ABUSE AS DIRECTED BY THE PROBATION OFFICER UNTIL SUCH TIME
2 AS YOU ARE RELEASED FROM THE PROGRAM BY THE PROBATION
3 OFFICER.
4 SECOND, YOU SHALL PARTICIPATE IN A PROGRAM OF
5 MENTAL HEALTH TREATMENT AS DIRECTED BY THE PROBATION
6 OFFICER UNTIL SUCH TIME AS YOU ARE RELEASED FROM THE
7 PROGRAM BY THE PROBATION OFFICER. YOU MUST WAIVE ALL
8 RIGHTS TO CONFIDENTIALITY REGARDING MENTAL HEALTH
9 TREATMENT IN ORDER TO ALLOW RELEASE OF INFORMATION TO THE
10 SUPERVISING UNITED STATES PROBATION OFFICER AND TO
11 AUTHORIZE OPEN COMMUNICATION BETWEEN THE PROBATION OFFICER
12 AND THE MENTAL HEALTH TREATMENT PROVIDER.
13 THIRD, YOU SHALL PROVIDE THE PROBATION OFFICER
14 WITH ACCESS TO ANY REQUESTED FINANCIAL INFORMATION.
15 FOURTH, YOU SHALL NOT INCUR NEW CHARGES ON
16 EXISTING ACCOUNTS OR APPLY FOR ADDITIONAL LINES OF CREDIT
17 WITHOUT PERMISSION OF THE PROBATION OFFICER UNTIL THE
18 AMOUNT OF RESTITUTION HAS BEEN PAID IN FULL. IN ADDITION,
19 YOU SHALL NOT ENTER INTO ANY CONTRACTUAL AGREEMENTS WHICH
20 OBLIGATE FUNDS WITHOUT THE PERMISSION OF THE PROBATION
21 OFFICER.
22 IT WILL ALSO BE A CONDITION OF YOUR SUPERVISION
23 THAT YOU PAY ANY FINANCIAL PENALTY IMPOSED BY THE COURT'S
24 JUDGMENT. ANY AMOUNT THAT REMAINS UNPAID AT THE COMMENCE-
25 MENT OF THE TERM OF SUPERVISED RELEASE SHALL BE PAID ON A
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1 MONTHLY BASIS AT THE AMOUNT OF AT LEAST 10 PERCENT OF YOUR
2 NET INCOME.
3 AND, FINALLY, YOU SHALL SUBMIT YOUR PERSON,
4 PROPERTY, HOUSE, RESIDENCE, VEHICLE, PAPERS OR OFFICE TO A
5 SEARCH CONDUCTED BY A UNITED STATES PROBATION OFFICER OR
6 DESIGNEE. FAILURE TO SUBMIT TO A SEARCH MAY BE GROUNDS
7 FOR REVOCATION OF RELEASE. YOU SHALL WARN ANY OTHER
8 OCCUPANTS THAT THE PREMISES MAY BE SUBJECT TO SEARCH
9 PURSUANT TO THIS CONDITION. AN OFFICER MAY CONDUCT A
10 SEARCH PURSUANT TO THIS CONDITION ONLY WHEN REASONABLE
11 SUSPICION EXISTS THAT YOU HAVE VIOLATED A CONDITION OF
12 YOUR SUPERVISION AND THE AREAS TO BE SEARCHED CONTAIN
13 EVIDENCE OF THE VIOLATION.
14 IT IS FURTHER ORDERED THAT YOU SHALL PAY TO THE
15 UNITED STATES A SPECIAL ASSESSMENT OF $200 WHICH IS
16 MANDATORY PURSUANT TO TITLE 18, UNITED STATES CODE,
17 SECTION 3013, WHICH SHALL BE DUE IMMEDIATELY. I DO FIND,
18 HOWEVER, THAT YOU DO NOT HAVE THE ABILITY TO PAY A FINE,
19 THE COURT WILL WAIVE ANY FINE IN THIS CASE.
20 YOUR PLEA AGREEMENT WITH THE UNITED STATES HAS
21 BEEN REVIEWED BY THE COURT AND IS ACCEPTED BY THE COURT.
22 PURSUANT TO THE PLEA AGREEMENT AND UPON MOTION OF THE
23 UNITED STATES THE REMAINING COUNTS OF THE INDICTMENT ARE
24 DISMISSED AS TO YOU.
25 TITLE 18, UNITED STATES CODE, SECTIONS 3565(B)
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1 AND 3583(G) REQUIRE MANDATORY REVOCATION OF SUPERVISED
2 RELEASE FOR POSSESSION OF A CONTROLLED SUBSTANCE OR A
3 FIREARM OR FOR REFUSAL TO COMPLY WITH DRUG TESTING.
4 PURSUANT TO RULE 32 OF THE FEDERAL RULES OF
5 CRIMINAL PROCEDURE, THE COURT ADVISES YOU THAT YOU MAY
6 HAVE THE RIGHT TO APPEAL YOUR CONVICTION OR THE SENTENCE
7 IMPOSED IN THIS CASE. A NOTICE OF APPEAL MUST BE FILED
8 WITHIN 14 DAYS OF THE ENTRY OF THE JUDGMENT. IF YOU
9 REQUEST AND SO DESIRE, THE CLERK OF THE COURT CAN PREPARE
10 AND FILE THE NOTICE OF APPEAL FOR YOU.
11 DOES EITHER PARTY HAVE ANY OBJECTION TO THE
12 SENTENCE JUST PRONOUNCED BY THE COURT IN CASE NUMBER
13 2:22-CR-52 THAT HAS NOT BEEN PREVIOUSLY RAISED?
14 MR. HEAVENER: NONE FROM THE UNITED STATES,
15 YOUR HONOR.
16 MR. HUDSON: NONE FROM THE DEFENSE, YOUR HONOR.
17 THE COURT: NOW, THERE'S ALSO PENDING BEFORE
18 THE COURT A PETITION SEEKING REVOCATION OF YOUR TERM OF
19 SUPERVISED RELEASE IN THIS CASE. MR. HEAVENER, I'VE HEARD
20 THE GOVERNMENT'S POSITION ON THAT, DO YOU WANT TO BE HEARD
21 ANY FURTHER?
22 MR. HEAVENER: NO, YOUR HONOR.
23 THE COURT: AND, MR. HUDSON, DO YOU WANT TO BE
24 HEARD ON THAT MATTER?
25 MR. HUDSON: NO, YOUR HONOR.
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1 THE COURT: YOU INDICATED THAT THE DEFENDANT'S
2 REQUEST IS THAT I SIMPLY EXTEND THE TERM OF SUPERVISION?
3 MR. HUDSON: THAT'S HER REQUEST, YOUR HONOR.
4 THE COURT: ALL RIGHT. MS. BETHEA, IN CASE
5 NUMBER 2:18-CR-25 I FIND BASED UPON YOUR OWN ADMISSIONS IN
6 THE CASE THAT YOU HAVE VIOLATED THE TERMS AND CONDITIONS
7 OF YOUR SUPERVISION AND THAT THE TERM OF SUPERVISED
8 RELEASE IS HEREBY REVOKED.
9 IN DETERMINING WHAT SENTENCE TO IMPOSE I AM
10 LARGELY GUIDED BY THE VERY SAME FACTORS SET FORTH IN TITLE
11 18, UNITED STATES CODE, SECTION 3553(A) THAT I HAVE
12 DISCUSSED IN RELATION TO CASE NUMBER 22-CR-52.
13 THE CHAPTER 7 POLICY STATEMENT FOR GRADE B
14 VIOLATIONS, IS IT 4 TO 10 OR 4 TO 12?
15 PROBATION OFFICER WELCH: FOUR TO 10, YOUR
16 HONOR.
17 THE COURT: FOUR TO 10 MONTHS. I THINK I SAID
18 12 A FEW MINUTES AGO.
19 MR. HEAVENER: YOUR HONOR, I'M NOT SURE IT'S A
20 GRADE B VIOLATION, I THINK THE NEW OFFENSE IS THE --
21 THE COURT: IT'S A GRADE -- IT IS A GRADE --
22 YEAH.
23 PROBATION OFFICER WELCH: YES, SIR, IT'S A
24 GRADE B VIOLATION.
25 THE COURT: THAT'S RIGHT.
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1 MR. HEAVENER: OH, I'M SORRY.
2 PROBATION OFFICER WELCH: CRIMINAL HISTORY
3 CATEGORY IV MAKES IT 4 TO 10 MONTHS.
4 THE COURT: AND WE APPLY THE CRIMINAL HISTORY
5 CATEGORY FROM THE PRIOR SENTENCING.
6 MR. HEAVENER: THE REPORT I HAVE INDICATES A
7 REVOCATION GUIDELINE RANGE OF 6 TO 12 MONTHS.
8 PROBATION OFFICER WELCH: THERE WAS AN ERROR ON
9 THE FACE SHEET OF THE PETITION, YOUR HONOR. THE CORRECT
10 RANGE IS REFERENCED IN THE DISPOSITIONAL REPORT THAT WAS
11 FILED.
12 MR. HEAVENER: GOT YOU.
13 THE COURT: SO IT IS 4 TO 10?
14 PROBATION OFFICER WELCH: YES, SIR.
15 MR. HEAVENER: THANK YOU, YOUR HONOR.
16 THE GOVERNMENT WOULD STILL PERSIST IN ITS
17 REQUEST FOR THE TOP OF THE GUIDELINE, YOUR HONOR, AND
18 BELIEVES THAT THERE WOULD BE GROUNDS FOR AN UPWARD
19 VARIANCE IF THE COURT WOULD WISH TO CONSIDER THAT.
20 THE COURT: THE 4 TO 10 MONTH REVOCATION RANGE
21 IS SIMPLY A POLICY STATEMENT IN THE GUIDELINES. JUST AS
22 WITH AN ADVISORY GUIDELINE RANGE I'M NOT REQUIRED TO
23 SENTENCE WITHIN THAT RANGE.
24 JUST SO YOU WILL KNOW, MS. BETHEA, THE
25 PROBATION OFFICER HAS RECOMMENDED THAT I IMPOSE THE
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1 STATUTORY MAXIMUM HERE, 24 MONTHS. THE GOVERNMENT DOESN'T
2 ASK FOR 24 MONTHS, THE GOVERNMENT ASKS FOR THE TOP OF THE
3 GUIDELINE RANGE, WHICH IS 10 MONTHS.
4 I CANNOT DO WHAT YOU ASKED ME, WHICH IS SIMPLY
5 EXTEND THE TERM OF SUPERVISED RELEASE IN THE PRIOR CASE.
6 TO DO SO WOULD SEND THE WRONG MESSAGE WITH RESPECT TO
7 EVERY FACTOR THAT'S IMPORTANT UNDER 3553(A). IT WOULD NOT
8 ONLY NOT PROMOTE RESPECT FOR THE LAW, IT WOULD NOT DETER
9 YOU, IT WOULD NOT DETER OTHERS. IN FACT, IT WOULD IN MY
10 OPINION EMBOLDEN OTHERS UNDER SUPERVISION TO VIOLATE THEIR
11 TERMS AND CONDITIONS.
12 THE CONDUCT HERE GIVING RISE TO THE VIOLATIONS
13 IS EGREGIOUS. IT APPEARS THAT YOU BEGAN VIOLATING TERMS
14 AND CONDITIONS OF YOUR SUPERVISION EARLY ON. YOU FILED A
15 MOTION ON NOVEMBER 3, 2021 TO TERMINATE EARLY YOUR TERM OF
16 SUPERVISION, ABOUT THAT SAME TIME THE PROBATION OFFICER
17 RECEIVED INFORMATION THAT YOU WERE BEING INVESTIGATED FOR
18 THIS OFFENSE. IT WAS REPORTED TO THE PROBATION OFFICER
19 THAT ON TWO SEPARATE OCCASIONS, AND IT LOOKS LIKE AT LEAST
20 ON ONE OF THEM YOU ADMITTED THAT YOU TRAVELED OUTSIDE THE
21 DISTRICT WITHOUT PERMISSION TO DO SO; AND THEN MAYBE MOST
22 EGREGIOUS OF ALL IS THE CONVICTION IN CASE NUMBER
23 22-CR-52.
24 ONCE AGAIN, MS. BETHEA, IT IS VERY DIFFICULT
25 FOR THE COURT TO ARTICULATE A BASIS TO IMPOSE SOMETHING
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1 LESS THAN THE STATUTORY MAXIMUM; BUT IF I'M GOING TO MAKE
2 A MISTAKE HERE, I'D RATHER MAKE IT IN YOUR FAVOR THAN
3 OTHERWISE. BECAUSE THE CONDUCT HERE IN VIOLATION OF YOUR
4 TERM OF SUPERVISION IS SO EGREGIOUS, SO BLATANT, EXHIBITS
5 SUCH A STRONG LACK OF RESPECT FOR THE LAW, I'M GOING TO
6 VARY UPWARD, HOWEVER, FROM THE POLICY STATEMENT GUIDELINE.
7 SO AFTER CONSIDERING THE GUIDELINE RANGE, AFTER
8 CONSIDERING THE RELEVANT 3553(A) FACTORS, AFTER CONSIDER-
9 ING THE STATUTORY MAXIMUM OF 24 MONTHS, IT IS THE JUDGMENT
10 OF THE COURT PURSUANT TO THE SENTENCING REFORM ACT OF 1984
11 THAT THE DEFENDANT, LESLIE DANIELLE BETHEA, IS HEREBY
12 SENTENCED TO A TERM OF 12 MONTHS OF IMPRISONMENT WITH
13 RESPECT TO THIS REVOCATION; AND I DO THAT WITH A WHOLE LOT
14 OF RESERVATION, AND I FEEL LIKE I AM GIVING YOU FAR
15 GREATER BENEFIT OF THE DOUBT THAN I SHOULD. AND THAT TERM
16 OF IMPRISONMENT IN CASE NUMBER 2:18-CR-25 WILL NOT BE
17 FOLLOWED BY ANY ADDITIONAL TERM OF SUPERVISION.
18 THE SENTENCE IMPOSED IN THIS REVOCATION MATTER
19 SHALL BE SERVED CONSECUTIVELY TO THE SENTENCE IMPOSED IN
20 CASE NUMBER 2:22-CR-52, MEANING THAT THE EFFECTIVE
21 SENTENCE IN THE UNDERLYING CASE AND THE REVOCATION MATTER
22 WHEN COMBINED IS A TOTAL SENTENCE OF 78 MONTHS, 6 YEARS --
23 6 1/2 YEARS, I GUESS IT IS, MY MATH IS NOT GREAT.
24 AND, MS. BETHEA, I HOPE WHEN YOU COMPLETE THIS
25 TERM OF IMPRISONMENT THAT YOU HAVE TAKEN FULL BENEFIT OF
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1 THE BOP PROGRAMS AND THAT YOU TRULY HAVE ADDRESSED WHAT-
2 EVER ISSUE IT IS THAT IS LEADING TO THE KIND OF CONDUCT
3 YOU HAVE ENGAGED IN. IF YOU DON'T, YOU'RE GOING TO END UP
4 SPENDING THE GREATER PART OF THE REST OF YOUR LIFE BEHIND
5 BARS. AS SIMPLY AS I CAN PUT IT TO YOU, YOU WALK THROUGH
6 A RETAIL BUSINESS, KEEP YOUR HANDS OFF THEIR PROPERTY
7 UNLESS YOU INTEND TO BUY IT. DON'T WRITE A CHECK YOU
8 CAN'T COVER. DON'T TRY TO FLEECE THE GOVERNMENT OR
9 ANYBODY ELSE.
10 PURSUANT TO RULE 32(J)(1)(B) OF THE FEDERAL
11 RULES OF CRIMINAL PROCEDURE, THE COURT ADVISES YOU THAT
12 YOU MAY HAVE THE RIGHT TO APPEAL THE SENTENCE IMPOSED IN
13 THIS REVOCATION MATTER. A NOTICE OF APPEAL MUST BE FILED
14 WITHIN 14 DAYS OF THE ENTRY OF THE JUDGMENT. IF YOU
15 REQUEST AND SO DESIRE, THE CLERK OF THE COURT CAN PREPARE
16 AND FILE THE NOTICE OF APPEAL FOR YOU.
17 AS TO CASE NUMBER 2:18-CR-25, DOES EITHER PARTY
18 HAVE ANY OBJECTION TO THE SENTENCE JUST PRONOUNCED BY THE
19 COURT THAT HAS NOT BEEN PREVIOUSLY RAISED?
20 MR. HEAVENER: NO OBJECTION FROM THE UNITED
21 STATES, YOUR HONOR.
22 MR. HUDSON: NO OBJECTION FROM THE DEFENSE,
23 YOUR HONOR.
24 THE COURT: MS. BETHEA, I SUSPECT THAT WHAT
25 I'VE SAID TO YOU TODAY SOUNDED FROM YOUR PERSPECTIVE VERY
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1 HARSH. I DIDN'T MEAN IT TO BE HARSH, BUT IT ADDRESSED
2 REALITY. YOUR BEHAVIOR HAS TO CHANGE; AND AT LEAST AS
3 LONG AS I AM SITTING HERE, I WILL NOT TOLERATE YOU
4 CONTINUING TO THUMB YOUR NOSE AT THE COURT OR AT THE LAW.
5 HAVING SAID THAT, I WISH YOU THE BEST. GOOD
6 LUCK TO YOU.
7 YOU'LL BE REMANDED TO THE CUSTODY OF THE UNITED
8 STATES MARSHAL TO SERVE THAT SENTENCE.
9 MR. HUDSON: YOUR HONOR, SHE REQUESTED THAT THE
10 COURT RECOMMEND THAT SHE BE ALLOWED TO GO TO HAZELTON.
11 THE DEFENDANT: ALDERSON.
12 THE COURT: HAZELTON?
13 MR. HUDSON: ALDERSON, I'M SORRY.
14 THE COURT: ALDERSON, ALL RIGHT. I WILL
15 RECOMMEND TO THE BUREAU OF PRISONS THAT YOU BE DESIGNATED
16 TO THE BOP FACILITY AT ALDERSON, WEST VIRGINIA TO SERVE
17 THE SENTENCE, ALL RIGHT.
18 MR. HUDSON: THANK YOU.
19 THE COURT: AND I DIDN'T ADDRESS CREDIT FOR
20 TIME SERVED EITHER. YOU WERE ARRESTED IN JUNE OF 2022 AS
21 I RECALL?
22 THE DEFENDANT: YES.
23 THE COURT: DO YOU REMEMBER THE DATE?
24 THE DEFENDANT: JUNE 5TH.
25 THE COURT: I'LL RECOMMEND THAT YOU RECEIVE
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1 CREDIT FOR TIME SERVED SINCE JUNE 6, 2022 AS WELL.
2 THE DEFENDANT: THANK YOU.
3 THE COURT: ALL RIGHT. GOOD LUCK TO YOU.
4 MR. HUDSON, MR. HEAVENER, THANK YOU ALL VERY
5 MUCH.
6 MR. HEAVENER: THANK YOU, YOUR HONOR.
7 THE COURT: LET'S ADJOURN FOR THE DAY.
8 (PROCEEDINGS ARE CONCLUDED AT 4:41 P.M.)
9 I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM
10 THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.
11
12
KAREN J. BRADLEY/S 03/25/2023
13 SIGNATURE OF COURT REPORTER DATE
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