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Government’s Sentencing Memorandum — United States v. Robert Hamilton, No. 20-CR-196-4 (Dkt. 122, E.D. Wis.)

Summary

In this sentencing memorandum filed June 15, 2021 (Dkt. 122, No. 20-CR-196-4, E.D. Wis.), the government asks for a prison term at the bottom of the 21 to 27 month guideline range, two years of supervised release and $155,000 in restitution for Robert Hamilton. Hamilton pleaded guilty to bank fraud (Count Three) for submitting a PPP application seeking $155,000 for Glory Transportation Services, LLC, which had no employees or payroll as of February 2020, and then paying $30,000 of the proceeds to Thomas Smith by cashier's check. The memo says the wider fraud sought over $1 million in government funds for employees that did not exist, and calls Thomas Smith the ringleader, already sentenced to 57 months. It calls Hamilton far less culpable: recruited by Thomas Smith, owner of an operating business, with no criminal history, though Hamilton lied to law enforcement.

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                           UNITED STATES DISTRICT COURT
                          EASTERN DISTRICT OF WISCONSIN



UNITED STATES OF AMERICA,

                     Plaintiff,
       v.                                                      Case No. 20-CR-196-4

ROBERT HAMILTON,

        Defendant.


                 GOVERNMENT’S SENTENCING MEMORANDUM

       Robert Hamilton (“the Defendant”) submitted a fraudulent Paycheck Protection

Program (“PPP”) application seeking $155,000 to Financial Institution 1 for his business

Glory Transportation Services, LLC (“Glory Transportation”). For his conduct, the

Defendant faces a guideline sentencing range of 21-27 months’ incarceration as

recommended by the Plea Agreement (Dkt. 38) and the Presentence Investigation

Report (Dkt. 117) and a statutory maximum sentence of 30 years’ incarceration. In light

of the factors in 18 U.S.C. § 3553 and for the reasons set for below, the United States

respectfully requests that this Court impose a term of imprisonment at the bottom of the

United States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”) range, two years

of supervised release, and order the Defendant to pay $155,000 in restitution.

I.     OVERVIEW OF UNITED STATES V. THOMAS SMITH, ET AL.

       The Defendant was one of the defendants charged by Indictment in United States

v. Thomas Smith, et al., which involved charges of bank fraud conspiracy and money

laundering against him and four other individuals. All of the charged conduct took



        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 1 of 10 Document 122
place in the spring and summer of 2020. As described more fully in the Indictment and

plea agreements associated with each of the defendants, the defendants obtained

fraudulent PPP loans from a bank using false and fraudulent application materials. See

Dkt. Nos 1, 5, 38, 42, 53, 73. In addition to the five defendants charged in the

Indictment, three other defendants were charged by Information for their part of the

scheme. See United States v. Tarone Woods, 20 CR 197; United States v. Deon Petty, 20 CR

199; United States v. Marvin Fitzgerald, 20 CR 202. In total, the scheme sought over $1

million in government funds for employees (and sometimes businesses) that did not

exist. Id. Proceeds of the fraud were shared among co-defendants. Id. Some of the

defendants also coordinated the false statements they planned to provide law

enforcement, if approached, to try to conceal their crimes.

II.    OVERVIEW OF UNITED STATES V. ROBERT HAMILTON

       A more detailed recitation of the facts relating to the scheme are detailed in the

Defendant’s plea agreement (Dkt No. 38), the plea agreements of the related defendants

in the case, the PSR, and the government’s submission regarding restitution. (Dkt. No.

87.)

       Stephen Smith approached the Defendant in April 2020 and asked him whether

he had received a PPP loan for Glory Transportation. When the Defendant said he had

not, Stephen Smith told him to contact Thomas Smith, who could help him with the

paperwork to get the loan. While Glory Transportation was a functioning company, it

did not have any employees or payroll as of February 2020, and thus was not eligible

for a PPP loan.


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        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 2 of 10 Document 122
       The Defendant went to Thomas Smith’s office to discuss getting the loan.

Thomas Smith told the Defendant that he would complete the loan paperwork and

provide it to the Defendant to sign and drop off at Financial Institution 1. The

Defendant signed the application and dropped it off at Financial Institution 1 as

directed. He also agreed to provide Thomas Smith with $30,000 of the loan proceeds

after the loan was funded.

       After the loan was funded, the Defendant obtained a cashier’s check for $30,000

payable to Thomas Smith. When he met Thomas Smith to deliver the check, Thomas

Smith told the Defendant that if anyone asked about why the Defendant had paid him

money, the Defendant should say it was for equipment or vans. Thomas Smith also

said that the Defendant should pay Stephen Smith $10,000 of the loan money because it

was Stephen Smith’s idea. The Defendant declined to do so.

III.   PROCEDURAL BACKGROUND

       A more detailed recitation of the procedural history of this case can be found in

the Government’s Position on Restitution. (Dkt. 87.) To summarize, on October 20,

2020, a grand jury returned an indictment charging the Defendant, Thomas Smith,

Stephen Smith, Samuel Davis, and Jonathan Henley for participating in a bank fraud

scheme between April 2020 and July 2020, in violation of Title 18, United States Code,

Section 1344, and for engaging in money laundering, in violation of Title 18, United

States Code, Section 1957. (Dkt. 1.)




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        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 3 of 10 Document 122
       The Defendant pled guilty to Count Three of the Indictment (Bank Fraud, in

violation of Title 18, United States Code, Section 1344) pursuant to a written plea

agreement on January 6, 2021. (Dkt. 25.) Sentencing is scheduled for June 21, 2021.

IV.    SENTENCING GUIDELINES CALCULATIONS

       The United States agrees with the Probation Office’s calculation of the Guidelines

in this case. The Final Presentence Investigation Report, filed on June 15, 2021,

determined that the total offense level was 16 and that the Defendant’s criminal history

category was I, which corresponds to an advisory Guidelines range of 21 to 27 months’

imprisonment. (PSR ¶ 96.) The Probation Officer found that the Defendant was subject

to a Base Offense Level of seven under U.S.S.G. § 2B1.1(a)(1). (Id. at ¶ 41.) The

Defendant then received a 10-level enhancement for a loss exceeding $150,000 but less

than $250,000 under U.S.S.G. § 2B1.1(b)(1)(F). (Id. at ¶ 42.) The Defendant received a

two-level enhancement because the offense involved sophisticated means under

U.S.S.G. §2B1.1(b)(10)(C). (Id. ¶ 43.)

       The parties and the Probation Office agree that the Defendant is entitled to a two-

level reduction for acceptance of responsibility. The Defendant has assisted authorities

in the investigation and prosecution of his own misconduct by pleading guilty prior to

indictment, thereby permitting the United States to avoid preparing for trial and

permitting the United States and the Court to allocate their resources efficiently.

Therefore, the United States moves the Court, under Section 3E1.1(b), to grant the

Defendant an additional one-level reduction in the offense level for acceptance of




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        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 4 of 10 Document 122
responsibility if the Defendant receives the two-level reduction for acceptance of

responsibility.

       With a Total Offense Level as Level 16, and a Criminal History Category of I, the

Sentencing Guidelines recommend a sentence between 21- and 27-months’

imprisonment. The United States agrees with the PSR’s Guidelines’ Calculations and

has no corrections to the PSR.

V.     CONSIDERATION OF FACTORS UNDER SECTION 3553(A)

       A.     Nature and Circumstances of the Offense

       The Defendant’s offense is a serious one meriting punishment. In 2020, as the

COVID-19 pandemic spread across the country causing death and economic distress,

the government created PPP loans to help small businesses whose livelihoods were

jeopardized. The Defendant, who was the owner of a business that was not eligible for

a PPP loan, took advantage of the program by submitting a false application claiming to

have employees and payroll that did not exist. His application was supported by false

tax forms. Furthermore, upon being discovered, the Defendant chose to continue with

the scheme by trying to conceal his conduct. He told multiple lies to law enforcement

about the state of Glory Transportation and his payment to Thomas Smith.

       Still, there are some mitigating factors which weigh against imposing the most

serious available sentence. The Defendant had a far more minor role in the scheme as

compared to the ringleaders, Thomas and Stephen Smith. He did not fill out the loan

application or create the fake tax forms. Furthermore, unlike his co-schemers, the




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        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 5 of 10 Document 122
Defendant never made false statements to the bank after submitting the fraudulent

application.

       Finally, unlike many of his co-schemers, the Defendant actually had an

operational business at the time he applied for the loan. Though Glory Transportation

did not have employees for which it paid taxes, the company was in existence and did

create revenue. It should be considered that the Defendant did in fact have a business

when evaluating the circumstances of the offense.

       B.      History and Characteristics of the Defendant

       The Defendant is a 59-year-old man who is in good health. (PSR ¶¶ 59, 70.) He

grew up in a stable family and has close relationships with an extended family. (Id.

¶¶ 59-66.) The Defendant has been married to his wife since 2010, and he has two adult

children from a previous marriage. (Id. ¶¶ 65-66.) The Defendant received his Masters

of Education in 2010, and has been employed as a high school special education teacher

since 1987. (Id. ¶¶ 81, 85.) He also works part time as a forensic specialist and owns

Glory Transportation. (Id. ¶ 83-84.) The Defendant has no criminal history. (Id. ¶ 64.)

       A significant mitigating factor for the Defendant is his acceptance of

responsibility, which saved the government considerable resources in preparing for

trial. Furthermore, as is clear by the fact that the Defendant held three jobs at the time

of the offense, the Defendant committed this offense due to a desire to provide for his

family and support his business, which supports a sentence at the bottom of the

Guidelines. See e.g. United States v. Eggleston, 347 F.Supp.3d 381, 384 (E.D. Wisc. 2018)

(in bank fraud case, noting as a mitigating factor that embezzlement offense was


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        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 6 of 10 Document 122
committed to support business rather than for personal enrichment). As noted above,

Glory Transportation was an operational business at the time the Defendant applied for

the fraudulent loan.

       C.     Need for the Sentence to Afford Adequate Deterrence to Criminal
              Conduct

       The government believes a that a sentence at the bottom of the Guidelines is

appropriate for both specific and general deterrence. The sentence in this case should

send a clear message to the Defendant and other offenders that there are serious

consequences for defrauding government emergency relief programs. Indeed, as the

pandemic continues to impact small businesses, the PPP loan program remains

ongoing. Actors like the Defendant who seek to defraud these programs make it more

difficult for administrators of government and other relief programs to get aid to

individuals who qualify for and need it. The Defendant’s sentence should serve as a

warning and deterrent to others inclined to exploit pandemic relief programs.

       The Defendant’s lack of a criminal record, and the fact that he was only involved

with one loan that was for a legitimate business, indicates that specific deterrence is not

a concern in this case.

       D.     Need for the Sentence to Avoid Unwarranted Sentencing Disparities

       There are two relevant points of comparison to avoid unwarranted sentencing

disparities: sentences associated with others convicted of PPP related fraud, and those

in this case. Around the country, only a few defendants have been sentenced to date for

PPP related frauds, but those courts have imposed meaningful jail sentences. See, e.g.,

United States v. David Hines, 21-CR-20011, S.D.FL. (imposing 78-month sentence on an

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        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 7 of 10 Document 122
individual who fraudulently applied for multiple PPP loans with a loss of $3.9 million

and also assisted others in submitting fraudulent PPP loans); United States v. Ganell

Tubbs, 20-CR-193, E.D.AR (imposing 41-month sentence on an individual who

fraudulently applied for two PPP loans with a loss of $1.9 million); United States v. Tarik

Jaafar, 20-CR-185, E.D.V.A. (imposing 12-month sentence on an individual who

fraudulently applied for 18 PPP loans with a loss of $1.4 million); United States v. Zhang,

20-CR-169, W.D.W.A. (imposing 60 day sentence on an individual who fraudulently

applied for multiple COVID-19 relief program loans, including four PPP loans with a

loss of over $900,000). The government notes that the Defendant sought only one loan

for $155,000 in this case, which is significantly less than the cases cited.

       The government submits that the Defendant was significantly less culpable than

Thomas and Stephen Smith. The Defendant was recruited into the scheme by Thomas

Smith. He did not fill out any of the applications or create false documents like the

Thomas Smith or Stephen Smith. Finally, unlike Thomas and Stephen Smith, the

Defendant was not involved in the creation or direction of the scheme.

       In this case, the Court has already sentenced Thomas Smith, the ringleader, to 57

months imprisonment. The Court has also sentenced three other co-schemers in this

case: Samuel Davis was sentenced to 6 months in prison for one count of bank fraud,

Deon Petty was sentenced to a year and a day for conspiracy to commit wire fraud, and

Marvin Fitzgerald was sentenced to a term of probation for lying to law enforcement.




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        Case 2:20-cr-00196-BHL Filed 06/15/21 Page 8 of 10 Document 122
VI.     RESTITUTION & FORFEITURE

        The government incorporates its Position on Restitution for Sentencing, filed on

April 13, 2021 at Docket No. 87. For the reasons explained in that submission, the

Defendant should be ordered to pay $155,000 in restitution. 1

        The government is not seeking a separate forfeiture judgment against the

Defendant.

                                      *                 *                *

        For the reasons stated above, the United States respectfully requests that the

Court impose a term of imprisonment at the bottom of the Guidelines, two years of

supervised release, and order the Defendant to pay $155,000 in restitution. The United

States submits that this sentence is sufficient, but not greater than necessary, to satisfy

the purposes of sentencing.

                                                             Respectfully Submitted,

                                                             DANIEL KAHN
                                                             Acting Chief, Fraud Section
                                                             U.S. Department of Justice

                                                             s/Laura Connelly_____________________
                                                             LAURA CONNELLY
                                                             LESLIE S. GARTHWAITE
                                                             Trial Attorneys
                                                             Fraud Section
                                                             U.S. Department of Justice
                                                             1400 New York Ave. NW
                                                             Washington, DC 20005
                                                             Phone: 202-307-1423
                                                             laura.connelly@usdoj.gov

1
 The PSR noted that on May 25, 2021, the defendant made a payment to the clerk to be applied towards restitution.
(PSR ¶ 35.) The government agrees that the defendant should receive credit for these, and any other amounts paid
for restitution.

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          Case 2:20-cr-00196-BHL Filed 06/15/21 Page 9 of 10 Document 122
                              CERTIFICATE OF SERVICE


       I hereby certify that on June 15, 2021, I caused the foregoing to be electronically

filed with the Clerk of the Court using the CM/ECF system, which will provide copies

to counsel for all parties.

                                                 /s Leslie S. Garthwaite_____________
                                                 LAURA CONNELLY
                                                 LESLIE S. GARTHWAITE
                                                 Trial Attorneys
                                                 Fraud Section
                                                 U.S. Department of Justice




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       Case 2:20-cr-00196-BHL Filed 06/15/21 Page 10 of 10 Document 122


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