Government’s Sentencing Memorandum — United States v. Patrick Parker Walsh (Dkt. 31, N.D. Fla.)
Summary
In this memorandum in aid of sentencing, filed January 27, 2023, in the Northern District of Florida (Case No. 1:22cr00024/AW), the United States addresses the Eleventh Circuit's decision in United States v. Dupree, as the court had ordered. The government argues that the Sentencing Guidelines, read with the relevant conduct rule in USSG §1B1.3(a)(3), include intended loss in the loss calculation under §2B1.1(b)(1), answering the defense objection to its use. It also asks that a two-level enhancement under USSG § 2B1.1(b)(17)(A) be added to the presentence report's calculation. The memorandum says Patrick Parker Walsh fraudulently obtained almost $8 million, and endeavored to obtain close to $15 million, through multiple false PPP loan and EIDL applications, and used the funds on luxury goods, oil fields and a private island. It cites upward variances in other fraud cases.
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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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
UNITED STATES OF AMERICA
v. CASE NO. 1:22cr00024/AW
PATRICK PARKER WALSH
______________________________/
GOVERNMENT’S SENTENCING MEMORANDUM
The United States of America files the following memorandum in aid of
sentencing, and to specifically address the impact of United States v. Dupree, 19-
13776, 2023 WL 227633 (11th Cir. Jan. 18, 2023), as ordered by this Honorable
Court (ECF No. 30):
I. INTRODUCTION
The Presentence Investigation Report (“PSR”), ECF No. 29, and the
Statement of Facts (“SOF”), ECF No. 18, both set out many of the details of
Defendant’s crimes. Thus, the Government will not restate the full factual and
procedural background of the case. Rather, the Government will discuss some of
the sentencing factors for this Honorable Court’s consideration, including its
position as to the PSR objections raised by both parties.
II. LEGAL STANDARD
Since United States v. Booker, 543 U.S. 220 (2005), to impose a lawful
sentence, trial courts must start by correctly calculating a defendant’s advisory
1
United States Sentencing Guidelines (“U.S.S.G.”) range. United States v.
Williams, 435 F.3d 1350 (11th Cir. 2006) (per curiam).
Objections to Guideline Calculations
The Government objected to the guideline calculations contained in the PSR
because it failed to include a two-level enhancement pursuant to USSG §
2B1.1(b)(17)(A). ECF No. 27. For the reasons set forth in its objection, the
enhancement ought to be included in the applicable guideline calculation for
Defendant Walsh’s case.
The defense objected to the guideline calculations contained in the PSR,
inter alia, because “intended loss” was used to determine his offense level under
USSG § 2B1.1(b)(1), which the defense characterized as being contrary to United
States v. Frederick Banks, 55 F.4th 246 (3d Cir. 2022)1—a non-binding case in this
circuit—and others. The defense objection also cited United States v. Dupree,
19-13776, 2023 WL 227633 (11th Cir. Jan. 18, 2023), which involved an
application note to USSG § 4B1.2 (defining a “controlled substance offense”), and
which also cited Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019), as authority. PSR at
¶ 107. At the time of the defense objection, Dupree had not yet been decided.
1
It is worth noting that the Banks court focused on the dictionary definition of “loss,”
which is important to the Government’s argument, below. See Banks, 55 F.4th at 258 (“Our review
of common dictionary definitions of ‘loss’ point to an ordinary meaning of ‘actual loss.’”)
2
Government’s response in light of Dupree
Shortly after the defense objection was raised, and the Government filed its
reply to that objection, ECF No. 28, the Dupree court decided that “that the text of
§ 4B1.2(b) unambiguously excludes inchoate crimes. Under Kisor,2 that concludes
our analysis, and we have no need to consider, much less defer to, the commentary
in Application Note 1.” Dupree, 2023 WL 227633, at *8.
This Honorable Court has ordered the parties to file memoranda that set out
their positions on the issue in light of the recent Dupree decision. At the outset,
the Government responds that its position has not changed, and that a 20-level
enhancement pursuant to USSG § 2B1.1(b)(1)(K) is still appropriate for the
reasons set forth in its reply to the defense objections in this case (ECF No. 28).
The Government does concede that its reliance on United States v. Moss, 34 F.4th
1176, 1190 (11th Cir. 2022), has been defeated by the recent Dupree decision.
However, the Government submits that Dupree did not address the heart of its
2
In Kisor, the Supreme Court clarified several limiting principles for when deference to an
agency’s interpretation of its own regulation is appropriate. 139 S. Ct. at 2414. First, Kisor
explained that deference to an agency’s interpretation is unwarranted “unless the regulation is
genuinely ambiguous.” Id. at 2415. To determine whether there is a genuine ambiguity, courts
must “exhaust all the ‘traditional tools’ of construction.” Id. “[I]f there is only one reasonable
construction of a regulation, a court has no business deferring to any other reading.” Id. And even
if ambiguity remains after careful consideration the “text, structure, history, and purpose” of the
regulation, “the agency’s reading must still be reasonable,” meaning that “it must come within the
zone of ambiguity the court has identified after employing all its interpretative tools.” Id. at 2416.
And then still, the Court must also determine “whether the character and context of the agency
interpretation entitles it to controlling weight,” which turns on three considerations: (1) whether
the regulatory interpretation is actually made by the agency; (2) whether the interpretation
implicates the agency’s “substantive expertise;” and (3) whether the interpretation reflects “fair
and considered judgment.” Id. at 2416-17.
3
position: USSG §2B1.1 must be read in concert with the relevant conduct
principles announced in §1B1.3, and that doing so results in no ambiguity.
The text of the Sentencing Guidelines requires adherence to the contents of
Chapter One (titled “Introduction, Authority, and General Application Principles”),
including, of particular importance, USSG §1B1.3 (“Relevant Conduct (Factors
that Determine Guideline Range)”); the contents of Chapter One should further be
applied to and considered alongside the remainder of the Sentencing Guidelines,
including the text of Chapter Two (Offense Conduct).” See USSG §1B1.3(a).
Among other things, relevant conduct “shall be determined on the basis of… all
harm that resulted from the acts and omissions specified in subsections (a)(1) and
(a)(2) above, and all harm that was the object of such acts and omissions.”
USSG §1B1.3(a)(3) (emphasis added). In other words, the text of the Sentencing
Guidelines defines the universe of harm that the district courts must consider, and a
plain reading of the emphasized portion of that definition, above, includes actual
and intended harms.
In this case, USSG §2B1.1 applies to the guideline calculations for
Defendant Walsh’s sentencing. PSR at ¶ 25. Specifically, the specific offense
characteristics (§2B1.1(b)(1)) establish various loss thresholds for which
corresponding increases in offense level apply. Yet it is important to note that the
text of § 2B1.1, which increases the defendant’s offense level based on the harm –
4
loss amount – caused by the defendant’s conduct, must be read in concert with §
1B1.3. Section 1B1.3(a)(3) puts actual and intended harm on the same footing,
and reading the text of both sections together shows the Sentencing Commission’s
intent to include “intended loss” in relevant conduct, and in turn, in the guideline
calculations.
Significantly, this interpretation does not conflict with the plain meaning of
the guideline—the term “loss” still carries its ordinary meaning of pecuniary harm.
See Banks, 55 F.4th 258 (noting that, “in context, ‘loss’ could mean pecuniary or
non-pecuniary loss and could mean actual or intended loss.”). Read together, §§
1B1.3(a)(3) and § 2B1.1(b)(1) simply instruct the Court to determine the extent to
which the “harm that resulted from [the offense] and [the] harm that was the object
of [the offense]” constitute pecuniary harm. To exclude the “harm that was the
object of [the offense]”—i.e., the intended harm—from the analysis would
contravene the plain text of § 1B1.3(a)(3).
Recognizing the holdings of Kisor and Dupree, the Government submits that
the text of the Sentencing Guidelines contains no ambiguity: the best reading of
USSG §§1B1.3(a)(3) and 2B1.1(b)(1) reflects that “all harm that was the object of
such [criminal] acts and omissions” includes “intended loss.” The commentary to
§2B1.1 is immaterial to the analysis in this case as the text of both §§1B1.3(a) and
2B1.1(b)(1) are not ambiguous. Thus, under Dupree, no further analysis (under
5
Kisor) is required, and this Honorable Court has “no need to consider, much less
defer to, the commentary in Application Note [3]” to §2B1.1. 2023 WL 227633, at
*8.
But even if this Court believes that the Government’s interpretation conflicts
with the plain meaning of the term “loss,” that conflict would merely demonstrate
that the “interpretative question” of whether §§ 1B1.3(a)(3) & 2B1.1(b)(1) together
require consideration of intended loss “has no single right answer,” leaving an
ambiguity for the Sentencing Commission to resolve by interpretation. Kisor, 139
S. Ct. at 2415. And the Sentencing Commission’s answer in Application Note 3
has all the hallmarks of an agency interpretation warranting deference. See ECF
No. 28 at 3-5 (excluding any argument that Moss is binding authority which
forecloses the defense objection as to this issue). In sum, the Sentencing
Commission has made the reasoned and considered judgment that that intended
loss is a better gauge of culpability than actual loss. In fact, given the
Commission’s expertise and collective wisdom, the Sentencing Guidelines have
always defined “loss” to include “intended loss.” See ECF 28 at 5. The Sentencing
Commission’s interpretation of §§ 1B1.3(a)(3) and 2B1.1(b)(1) is reasonable and
should be respected here.
6
III. APPLICATION OF 18 U.S.C. § 3553(A) FACTORS3
After the Court calculates a defendant’s advisory guideline range, it “may
impose a more severe or more lenient sentence as long as the sentence is
reasonable.” Williams, 435 F.3d at 1353 (quoting United States v. Crawford, 407
F.3d 1174, 1179 (11th Cir. 2005)). That is, the Court is to properly calculate
Defendant’s guideline range but, after doing so, it must consider the factors set
forth in 18 U.S.C. §3553(a) and may tailor Defendant’s sentence based on those
factors. The Eleventh Circuit has summarized the §3553(a) factors:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training and medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to avoid
unwarranted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Ochoa-Torres, 519 F. App’x 583, 584 (11th Cir. 2013). The
factors set forth in 18 U.S.C. §3553 mirror the reasons traditionally recognized for
imposing sentence: (a) retribution, (b) deterrence, sometimes referred to as
“general deterrence” (i.e., the need to deter others from committing like crimes),
3
This Sentencing Memorandum does not specifically discuss every § 3553 sentencing
factor.
7
(c) incapacitation, sometimes referred to as “specific deterrence” (i.e., the need to
prevent Defendant from committing crime), and (d) rehabilitation. Bullington v.
Missouri, 451 U.S. 430, 443 n.16 (1981); United States v. Godfrey, 22 F.3d 1048,
1058 (11th Cir. 1994).
A. The Nature and Circumstance of the Offense and the History and
Characteristics of Defendant – 18 U.S.C. § 3553(a)(1)
1. The Offense Conduct
The Government urges this Court to rely on the PSR and the Statement of
Facts as a complete account of Defendant’s offense conduct. Such evidence
against Defendant demonstrates that his crimes are egregious and the product of
greed. In total, Defendant Walsh fraudulently obtained almost $8 million—and
endeavored to obtain close to $15 million—through multiple false PPP loan and
EIDL applications. In doing so, he took funds that were intended for honest
business owners, to whom these funds meant the difference between survival and
financial ruin, and used them instead to purchase luxury goods, oil fields, and a
private island.
2. The History and Characteristics of Defendant
Defendant’s family life and upbringing are set forth in the PSR. Neither
Defendant’s history nor his personal characteristics justify a sentence mitigation or
a downward variance in this case.
8
B. The Sentence Should Reflect the Seriousness of the Offense,
Promote Respect for the Law, Afford Adequate Deterrence to
Criminal Conduct, Protect the Public from Further Crimes of
Defendant, and Provide Just Punishment for the Offense -
18 U.S.C. § 3553(a)(2)
1. Reflecting Seriousness of the Offense
The Government notes that economic crimes, like those at issue here, are as
serious as many other cases that come before this Court. This is especially true
when the case, such as this one, involves an on-going scheme to defraud federal
government benefit programs during a time of an unprecedented pandemic. Thus,
the Sentencing Guidelines should not be ignored or discounted because Defendant
is being sentenced for what are typically referred to as “white-collar” crimes.
Section 3553(a)(2)(A) requires that district courts consider “the need for the
sentence imposed” to “reflect the seriousness of the offense.” Stated differently,
“the length of the sentence should reflect the harm done and the gravity of
Defendant’s conduct.” United States v. Walker, 844 F.3d 1253, 1256 (10th Cir.
2017); see also United States v. Pugh, 515 F.3d 1179, 1195 (11th Cir. 2008).
2. General Deterrence
Further, “[g]eneral deterrence is one of the key purposes of sentencing.”
Walker, 844 F.3d at 1257. Congress has recognized that general deterrence is
particularly important in the context of white-collar crime. United States v. Sample,
901 F.3d 1196, 1200 (10th Cir. 2018) (citing United States v. Martin, 455 F.3d
9
1227, 1240 (11th Cir. 2006)) (“[T]he Congress that adopted the § 3553 sentencing
factors emphasized the critical deterrent value of imprisoning serious white collar
criminals, even where those criminals might themselves be unlikely to commit
another offense.”); S. Rep. No. 98-225, at 76 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3259 (“The second purpose of sentencing is to deter others
from committing the offense. This is particularly important in the area of white
collar crime.”). “In enacting § 3553, Congress was especially concerned that prior
to the Sentencing Guidelines, major white collar criminals often were sentenced to
small fines and little or no imprisonment.” United States v. Livesay, 587 F.3d 1274,
1279 (11th Cir. 2009) (cleaned up). “White collar criminals may be particularly
susceptible to general deterrence because ‘[d]efendants in white-collar crimes often
calculate the financial gain and risk of loss, and white-collar crime therefore can be
affected and reduced with serious punishment.’” Sample, 901 F.3d at 1200 (citing
United States v. Kuhlman, 711 F.3d 1321, 1329 (11th Cir. 2013)); see also United
States v. Vrancea, 136 F. Supp. 3d 378, 392 (E.D.N.Y. 2015) (“Persons who
commit white-collar crimes like [D]efendant’s are capable of calculating the costs
and benefits of their illegal activities relative to the severity of punishments that
may be imposed. A serious sentence is required to discourage such crimes.”).
Further, a district court’s dismissal of the relevance of deterrence to others4 was
4
Such as by making the following comment: “[I] don’t give much stock in the fact that
others are deterred by the fact that you’re sent to prison for a long time.”
10
found to conflict with Congress’ directive to sentencing judges. Walker, 844 F.3d
at 1257.
Additionally, as a part of the Fifth Circuit’s discussion in United States v.
Hoffman, 901 F.3d 523, 556-57 (5th Cir. 2018), the Court noted that:
Another problem with probation in multimillion dollar fraud cases is
that it undermines public confidence in whether the justice system is
“do[ing] equal right to the poor and to the rich” as our oath requires. 28
U.S.C. § 453. For these reasons, we have repeatedly expressed a
“distaste for sentencing that reflects different standards of justice being
applied to white and blue collar criminals,” United States v. Saleh, 257
F. App’x 740, 745 (5th Cir. 2007) (citing United States v. Andrews, 390
F.3d 840, 848 (5th Cir. 2004)); see also United States v. Mueffelman,
470 F.3d 33, 40 (1st Cir. 2006) (noting the need to minimize
“discrepancies between white- and blue-collar offenses”).
As it relates to PPP and EIDL fraud, this Court’s sentence in this case will
have nationwide importance, as there have been countless instances of such fraud
since the beginning of the coronavirus pandemic. A significant sentence will deter
others who might consider perpetrating similar fraud schemes; yet a lenient
sentence might do little to dissuade such criminal conduct. In fact, the Eleventh
Circuit has repeatedly emphasized that “general deterrence is a critical factor that
must be considered and should play a role in sentencing defendants.” United States
v. Oudomsine, No. 22-10924, 2023 WL 220349, at *3 (11th Cir. Jan. 18, 2023) (a
case involving pandemic-related SBA EIDL fraud) (quoting United States v.
Howard, 28 F.4th 180, 208 (11th Cir. 2022)). More importantly, the Eleventh
Circuit has expressed the view that “[g]eneral deterrence is more apt, not less apt,
11
in white collar crime cases.” Oudomsine, 2023 WL 220349, at *3 (quoting
Howard, 28 F.4th at 209); see also United States v. Martin, 455 F.3d 1227, 1240
(11th Cir. 2006) (“[T]he Congress that adopted the § 3553 sentencing factors
emphasized the critical deterrent value of imprisoning serious white collar
criminals, even where those criminals might themselves be unlikely to commit
another offense[.]”). “Economic and fraud-based crimes are more rational, cool
and calculated than sudden crimes of passion or opportunity, which makes them
prime candidates for general deterrence…[and] [b]ecause white collar criminals
often calculate the financial gain and risk of loss of their crimes[,] an overly lenient
sentence sends the message that would-be white-collar criminals stand to lose little
more than a portion of their ill-gotten gains and practically none of their liberty.”
Oudomsine, 2023 WL 220349, at *3 (quoting Howard, 28 F.4th at 209) (quotation
marks omitted).
3. Purpose and Intent of Sentencing Guidelines
In United States v. Rigas, two defendants were convicted of white-collar
offenses. 583 F.3d 108 (2d Cir. 2009). On appeal, the defendants noted that their
sentences for their white-collar crimes were only slightly shorter than the sentences
of some admitted or convicted terrorists. Id. The Second Circuit rejected the
argument and affirmed, finding that the sentences “were procedurally and
substantively reasonable.” Id. at 126. Further, Rigas stated that “stiff Guidelines
12
sentences for ‘white-collar’ crimes reflect Congress’ judgment as to the
appropriate national policy for such crimes.” Rigas, 583 F.3d at 124 (internal
citation omitted); see also Martin, 455 F.3d at 1240 (“The fact that Martin’s
guidelines range was 108-135 months’ imprisonment evinces Congress’s attempt
to curb judicial leniency in the area of white collar crime.”).
C. Avoiding Sentencing Disparities - 18 U.S.C. § 3553(a)(6)
The rationale for using loss amount to calculate a Guidelines Sentence was
to “eliminate disparities between white- and blue-collar offenders.” United States
v. Prosperi, 686 F.3d 32, 38 (1st Cir. 2012); see also United States v. Davis, 537
F.3d 611, 617 (6th Cir. 2008) (“One of the central reasons for creating the
sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to
eliminate disparities between white-collar sentences and sentences for other
crimes.”). Further, “[o]ne of the goals of the Sentencing Guidelines was to give
greater equivalence between penalties for white collar crimes like fraud and violent
crimes like robbery.” Prosperi, 686 F.3d at 38. The fact that “some judges have
chosen as a policy matter not to sentence white collar criminals to the harshest
permissible punishments, [ ] does not entitle other white collar criminals to
[receive] lighter punishments[.]” United States v. Goffer, 721 F.3d 113, 131 (2d
Cir. 2013).
13
In other courts, convictions for pandemic relief fraud have resulted in
lengthy prison sentences. For example, the Defendant in Oudomsine was
sentenced to 36 months’ imprisonment for wire fraud, an upward variance from the
guidelines range of 8 to 14 months, for providing false information to obtain an
$85,000 Economic Injury Disaster Loan (EIDL), and then using most of those
fraud proceeds to purchase a $57,789 Pokémon card. Oudomsine, 2023 WL
220349, at *3. In another case, a Florida couple was sentenced to 18 months and
30 months in prison, respectively, for their participation in a scheme to file four
fraudulent PPP loan and EIDL applications seeking more than $1.1 million.
https://www.justice.gov/opa/pr/couple-who-falsely-claimed-be-farmers-sentenced-
11-million-covid-relief-fraud. Additionally, a father and son were sentenced to 48
months and 87 months in prison, respectively, for COVID-19 relief fraud involving
a loss of $1.7 million. https://www.justice.gov/opa/pr/father-and-son-sentenced-17-
million-covid-19-relief-fraud. Another Defendant, who fraudulently sought over
$1.2 million in PPP loans from federally-insured financial institution on behalf of
eight different companies, was sentenced to 57 months in prison.
https://www.justice.gov/opa/pr/man-sentenced-his-role-directing-covid-19-relief-
fraud-scheme. A Georgia woman was sentenced to 41 months in prison for her
scheme to fraudulently obtain more than $7.9 million—and for actually obtaining
14
$6 million—in PPP loans. https://www.justice.gov/opa/pr/georgia-woman-
sentenced-41-months-covid-19-fraud-scheme.
IV. DEPARTURES5 AND VARIANCES 6 FROM DEFENDANT’S
GUIDELINE RANGE
A. Sentencing Framework – The Importance of the Guidelines
The sentencing guidelines “are an indispensable tool in helping courts
achieve Congress’s mandate to consider the need to avoid unwarranted sentence
disparities among similarly situated defendants,” United States v. Hunt, 459 F.3d
1180, 1184 (11th Cir. 2006) (cleaned up), which is required by 18 U.S.C. §
3553(a)(6).
5
“Departure’ is a term of art under the Guidelines and refers only to non-Guidelines
sentences imposed under the framework set out in the Guidelines.” Irizarry v. United States, 553
U.S. 708, 714 (2008). “A ‘departure’ is a divergence from the originally calculated sentence range
based on a specific Guidelines departure provision, whereas a ‘variance’ is a divergence from the
Guidelines range based on an exercise of the Court's discretion under § 3553(a).” United States v.
Gorbatenko, 181 F. Supp. 3d 842, 849 (D. Or. 2015) (citing United States v. Fumo, 655 F.3d 288,
317 (3d Cir. 2011)).
6
“A variance must be based on the factors in 18 U.S.C. § 3553(a).” United States v. Myers,
503 F.3d 676, 684 (8th Cir. 2007). “When the district court correctly calculated the guidelines
range, found that the range did not address adequately the § 3553(a) factors, and did not cite a
specific departure provision, [the Eleventh Circuit] has concluded that the above-guidelines
sentence involved a variance rather than a departure.” United States v. Nelson, 644 F. App'x 979,
982 (11th Cir. 2016). Where the district court's rationale for a particular sentence does not refer
to the U.S.S.G. and is based on the 18 U.S.C. § 3553(a) factors, and its finding that the advisory
guidelines range was inadequate, the district court's decision is properly considered an upward
variance, not a departure.” Id. at 983. Because the guidelines are now advisory (post-Booker), a
“departure” is only a “variance” based on the sentencing factors in § 3553(a); thus, there is no
longer a need for strict compliance with Fed.R.Crim.P. 32(h) (requiring prior notice to the parties)
before imposing a variance sentence. See United States v. DuBoc, 2009 WL 150670, at *4 (N.D.
Fla. Jan. 21, 2009) (J. Hinkle). In reviewing the sentence, the appellate court must give due
deference to the district court's decision that the § 3553(a) factors justify the variance; “that the
appellate court might have reasonably reached a different conclusion does not justify reversal.”
Gall v. United States, 552 U.S. 38, 39 (2007).
15
Even though not bound by the guidelines, a sentencing court may not give
them so little consideration that it amounts to “not giv[ing] any real weight to the
Guidelines range in imposing the sentence.” Pugh, 515 F.3d 1179, 1200 (11th Cir.
2008); see also Booker, 543 U.S. at 264 (“The district courts, while not bound to
apply the Guidelines, must consult those Guidelines and take them into account
when sentencing.”); see generally, Kimbrough v. United States, 552 U.S. 85, 107
(2007) (“[I]t is unquestioned that uniformity remains an important goal of
sentencing. As we explained in Booker, however, advisory Guidelines combined
with appellate review for reasonableness and ongoing revision of the Guidelines in
response to sentencing practices will help ‘to avoid excessive sentencing
disparities.’”); Rita v. United States, 551 U.S. 338, 348 (2007) (“The upshot is that
the sentencing statutes envision both the sentencing judge and the Commission as
carrying out the same basic § 3553(a) objectives, the one, at retail, the other at
wholesale.”); United States v. Irey, 612 F.3d 1160, 1217-18 (11th Cir. 2010).
B. An Upward Departure May Be Warranted Per U.S.S.G. § 5K2.5
The text of (and not commentary to) U.S.S.G. § 5K2.5 provides that:
If the offense caused property damage or loss not taken into account
within the guidelines, the court may increase the sentence above the
authorized guideline range. The extent of the increase ordinarily should
depend on the extent to which the harm was intended or knowingly
risked and on the extent to which the harm to property is more serious
than other harm caused or risked by the conduct relevant to the offense
of conviction.
16
Should this Court decline to calculate the Defendant’s guideline level based,
in part, on his “intended loss” (despite the Government’s positions noted above), it
could decide that an upward departure is warranted as the PPP and EIDL proceeds
that the Defendant intended to steal or fraudulently obtain which exceeds the
amounts that he actually obtained were not taken into account by the guidelines.
C. An Upward Variance May Also Be Warranted
Caselaw Supports an Upward Variance
“A sentence’s variance outside the guidelines range, whether upward or
downward, represents a district court’s judgment that the combined force of the
other § 3553(a) factors are entitled to greater weight than the guidelines range.
Otherwise, there would never be any variances.” United States v. Rosales-Bruno,
789 F.3d 1249, 1259 (11th Cir. 2015); see also United States v. Irey, 612 F.3d
1160, 1182 (11th Cir. 2010) (en banc) (explaining that a case falls “outside the
heartland” when “there [is] something unusual, either about Defendant or the
circumstances surrounding the crime,” that warrants a sentence outside of the
guidelines range). A district court’s decision to vary from the advisory Guidelines
may attract greatest respect when the sentencing judge finds a particular case
outside the heartland to which the Commission intends individual Guidelines to
apply. Kimbrough, 552 U.S. at 109.
17
Upward variances are routinely applied in white-collar cases where the §
3553(a) factors justify them. As noted above, especially in the PPP loan and EIDL
fraud context, an upward variance was recently deemed substantively reasonable
by the Eleventh Circuit where the district court's reasoning was that the “fraud was
not the kind of ordinary fraud contemplated by the guidelines because [the
Defendant] used “his education, ability, and background to steal money from a
national benevolence,” taking $85,000 from a federal relief program designed to
save the economy during the pandemic.” Oudomsine, 2023 WL 220349, at *2.
The district court in Oudomsine further found that “[i]n committing that crime, [the
Defendant] had shown blatant disregard for the people who needed these funds and
for the people who paid for this program.” Id. In deeming deterrence to be the
most important sentencing factor, the Oudomsine district court further determined
that “the upward variance sentence was sufficient, but not greater than necessary,
to meet the crime [the Defendant] committed and to demonstrate to the world
the likely result of the commission of the same or similar criminal act.” Id.
(emphasis added).
Other courts in this circuit and nationwide have found upward variances to
be appropriate in white-collar cases. See, e.g., United States v. Lantigua, 749 F.
App’x 875 (11th Cir. 2018) (affirming sentence of 168 months’ imprisonment – an
81-month upward variance from the top of the applicable guidelines range – for
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conspiracy to commit mail fraud and wire fraud, bank fraud, passport fraud, and
aggravated identity theft); United States v. Turner, 474 F.3d 1265, 1274, 1280-81
(11th Cir. 2007) (affirming 240–month sentence for, inter alia, conspiracy to steal
U.S. mail, theft of U.S mail, and money laundering, despite guidelines range of
only 51–63 months and the defendant’s lack of criminal history, where the district
court expressed its belief that crimes presented “a very serious matter,” that the
advisory range was “inadequate,” and where the court noted that the lengthy
sentence was imposed to “provide adequate deterrence” and “to protect the
public”) (emphasis added); United States v. Barnes, 288 F. App’x 683 (11th Cir.
2008) (120–month sentence, which represented an upward variance from
Guidelines range of 27 to 33 months’ imprisonment, was not unreasonable for
filing false tax returns, identity theft, and theft of government property where the
district court concluded that the sentence it imposed was necessary to protect
the public from future crimes by defendant, deter others from similar crimes,
and communicate the seriousness of defendant’s crimes) (emphasis added);
United States v. Rodriguez, 486 F. App’x 30 (11th Cir. 2012) (affirming sentence
of 144 months’ imprisonment – an upward variance – for possession of counterfeit
or unauthorized devices, possession of device-making equipment and aggravated
identity theft based on the need for future deterrence) (emphasis added); United
States v. Coffie-Joseph, 637 F. App’x 752 (4th Cir. 2016) (affirming total of 120
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months’ imprisonment for wire fraud, money laundering, passport fraud, and
aggravated identity theft where district court “considered maximum sentence
provided by Congress on all of defendant’s counts, explicitly stated that
Guidelines’ focus on amount of monetary loss did not sufficiently take into
account consequences of crime or purposes of sentencing factors, and stated
that sentence imposed was necessary to promote respect for the law and deter
conduct, and district court focused on defendant’s history, characteristics, and need
to protect public from further crimes by defendant”) (emphasis added); United
States v. Bricker, 574 F. App’x 906 (11th Cir. 2014) (upward variance for mail
theft, wire fraud, and aggravated identity theft affirmed in light of the statutory
sentencing factors).
V. CONCLUSION
The United States submits this memo in aid of sentencing in this case.
Respectfully submitted,
JASON R. COODY
United States Attorney
/s/ Justin M. Keen
JUSTIN M. KEEN
Assistant United States Attorney
Florida Bar Number: 021034
111 North Adams Street, Fourth Floor
Tallahassee, FL 32301
Justin.Keen@usdoj.gov
(850) 942-8430
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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F)
I HEREBY CERTIFY that this memorandum complies with the type-
volume limitation of Local Rule 7.1(F) because this pleading contains
approximately 4,953 words.
/s/ Justin M. Keen
JUSTIN M. KEEN
Assistant United States Attorney
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
filed via the Court’s CM/ECF system on this 27th day of January, 2023, which
will send notification of such filing to all counsel of record.
/s/ Justin M. Keen
JUSTIN M. KEEN
Assistant United States Attorney
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