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Letter to Judge Azrack Re: United States v. Kai Heyward, 22 CR 87 (JMA) (Dkt. 289, E.D.N.Y.)

Summary

In this February 6, 2024 sentencing letter, Assistant Federal Defender Michael K. Schneider asks Judge Joan M. Azrack to sentence Kai Heyward well below the guideline range and below the 24 months recommended by the probation department. Mr. Heyward pleaded guilty to conspiracy in a case in which the defendants shared knowledge about how to purchase identity information on Telegram and submit applications for unemployment insurance. The letter says relevant conduct raises the loss from $24,372, caused by Mr. Heyward's own conduct, to $522,746 for all eleven defendants; on the individual loss alone the guideline range would be 12-18 months. It cites the death of Mr. Heyward's father when Mr. Heyward was fourteen, a 2022 move to Delaware before the arrest, and seventeen months of home detention followed by a curfew. Two codefendants received 22 and 25 months.

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          Case 1:22-cr-00087-JMA-CLP Document 289 Filed 02/06/24 Page 1 of 5 PageID #: 1146
Federal Defenders                                                                                              Eastern District
                                                                           One Pierrepont Plaza, 16th Fl., Brooklyn, NY 11201

O F NEW YORK, INC .
                                                                                      Tel: (718) 330-1200 Fax: (718) 855-0760




 Barry D. Leiwant                                                                                       Eastern District of New York
Interim Executive Director                                                                                 Michelle A. Gelernt
 and Attorney-in-Chief                                                                                  Interim Attorney-in-Charge



                                                                           February 6, 2024


             By ECF

             The Honorable Joan M. Azrack
             United States District Court Judge
             Eastern District of New York
             225 Cadman Plaza East
             Brooklyn, New York 11201

             RE:       United States v. Kai Heyward, 22 CR 87 (JMA)

             Dear Judge Azrack:

                    When he was fourteen years old, Kai Heyward’s father passed away from
             kidney failure. Though his mother was able to support the family financially
             through her work as a police officer for the NYPD, she was often away from home
             for long hours. Mr. Heyward lost his way after his father’s death. Though he had
             excelled at football as a youngster, he stopped playing for a time after his father’s
             death (his father had been his coach). His work and comportment in school suffered.
             Mr. Heyward’s disaffection grew as several young acquaintances from his Canarsie
             neighborhood met untimely, violent deaths.

                    Mr. Heyward struggled after the death of his father. He eventually began
             playing football again as an older teenager, even earning a scholarship to a private
             high school. However, the loss of his father and the effect of injuries had stolen his
             joy for the game. After quitting the sport, he had to leave two high schools for
             disciplinary reasons and did not graduate. In 2020 and 2021, while still a young
             man and living in Canarsie, Mr. Heyward committed the instant offense. In 2020,
             he was also arrested twice for misdemeanors. Convictions related to those offenses
             place him in criminal history category II.

                    In 2022, Mr. Heyward’s mother retired from the NYPD and moved the family
             to a rural area in Delaware, partially because she could see her son’s struggles in
             Brooklyn. 1 Mr. Heyward was arrested on the instant case at his family’s Delaware

             1         The PSR mistakenly dates the move to Delaware as occurring in 2012. See PSR ¶ 57.
Case 1:22-cr-00087-JMA-CLP Document 289 Filed 02/06/24 Page 2 of 5 PageID #: 1147
                                                                        United States v. Kai Heyward
                                                                                           Page 2 of 5
                                                                                    February 6, 2024

  home on February 17, 2022. He was later ordered removed to Brooklyn in custody.
  He first appeared in this district on March 1, 2022, when he was released on a bond
  with a condition of home detention. He remained on home detention for seventeen
  months, after which he was placed on a restrictive curfew which still applies. 2
  Though he sought employment while on pretrial release, there were few job
  opportunities available to him in nearby towns. 3 The conditions of his release and
  having only one car available to the family made it impossible for him to seek
  employment further away from his home.

         In the plea agreement, the parties anticipated that the final offense level
  would be 20, with a corresponding sentencing range of 33-41 months. Mr. Heyward
  stipulated to this calculation. Because the probation department places Mr.
  Heyward in criminal history category II, the sentencing range is higher than the
  plea agreement anticipated. Mr. Heyward does not object to this guideline range but
  notes that the probation department recommends a sentence of 24 months,
  considering Mr. Heyward’s age at the time of the offense and his father’s untimely
  death.

          A sentence well below the guideline range, and below that recommended by
  probation, is warranted here based on the nature of the offense and Mr. Heyward’s
  history and characteristics, including the traumatic death of his father and several
  of his friends, his move to Delaware prior to his arrest, and the restrictive
  conditions of release he has lived under for the last two years.

  18 U.S.C. § 3553(a)

         18 U.S.C. § 3553(a)’s “parsimony principle” “instructs courts ‘to impose a
  sentence sufficient, but not greater than necessary, to comply with’ the four
  identified purposes of sentencing: just punishment, deterrence, protection of the
  public, and rehabilitation.” Dean v. United States, 581 U.S. 62, 67 (2017). That
  principle, applied in light of the statutory sentencing factors, supports sentencing
  Mr. Heyward to a sentence well below the guideline minimum.

         In determining the appropriate sentence, the Court must weigh several
  factors, including Mr. Heyward’s personal history and characteristics, the nature
  and circumstances of the offense, and any mitigating factors that may exist. See,
  e.g., United States v. Hernandez, 604 F.3d 48, 55 (2d Cir. 2010). The Supreme Court


  2       Initially, Mr. Heyward’s curfew allowed him to be away from home from 9:00 a.m. to 3:00
  p.m. on weekdays. Only recently, on January 22, 2024, was the curfew extended to 7:00 p.m. on
  weekdays.

  3      Clayton and Smyrna, Delaware, the towns closest to Mr. Heyward’s home, had a combined
  population of about 16,000 during the 2020 census.
Case 1:22-cr-00087-JMA-CLP Document 289 Filed 02/06/24 Page 3 of 5 PageID #: 1148
                                                                United States v. Kai Heyward
                                                                                   Page 3 of 5
                                                                            February 6, 2024

  has repeatedly affirmed a federal judge’s ability to grant a variance from the
  advisory guideline range based on the § 3553(a) factors. See, e.g., Beckles v. United
  States, 137 S. Ct. 886, 892 (2017). The Supreme Court has also made clear that
  granting a variance does not require a showing of extraordinary or special
  circumstances. To the contrary, “courts are entitled to vary from the . . . guidelines
  in a mine run case where there are no ‘particular circumstances’ that would
  otherwise justify a variance from the guidelines’ sentencing range.” Spears v.
  United States, 555 U.S. 261, 267 (2009) (internal quotation omitted).

        Nature and circumstances of the offense

        As noted above, Mr. Heyward stipulated to the guideline calculation in this
  case—a calculation that includes an enhancement for loss of more than $250,000.
  PSR ¶¶ 16, 32. This is the amount of actual loss attributed to actions of all eleven
  defendants. Mr. Heyward’s individual conduct resulted in far less loss—$24,372.
  PSR ¶ 16. Of course, the guidelines allow loss caused by other members of a
  conspiracy to raise a defendant’s guideline range under the theory of “relevant
  conduct.” See USSG §1B1.3(1)(B). In this case, however, the use of relevant conduct
  overstates Mr. Heyward’s culpability and warrants a variance below the
  recommended guideline range.

         The use of relevant conduct here causes a drastic increase in the guideline
  range. The loss amount increases by factor of more than twenty, from $24,372 to
  $522,746 and the guideline enhancement increases from 4 to 12. See USSG
  §2B1.1(b)(1)(C) and (G). If the loss attributable only to Mr. Heyward’s conduct was
  used, the final offense level would be 12 and the guideline range would be 12-18
  months.

         Further, though Mr. Heyward pleaded guilty to conspiracy, the nature of this
  conspiracy was less centralized and organized than most conspiracies. The
  defendants shared knowledge about how to purchase identity information on
  Telegram and how to submit applications for unemployment insurance using that
  information. After learning these methods, however, Mr. Heyward did not share
  identity information or the proceeds of the fraud with other conspirators. Neither
  did he receive identity information or proceeds from them.

        None of the above is intended to minimize Mr. Heyward’s criminal conduct or
  to denigrate the seriousness of the offense. Obviously, this sort of fraud is serious
  and deserving of prosecution. Acknowledging that, however, does not lessen the
  importance of sentencing a person based on his or her actual conduct. The
  applicable guideline range overstates the seriousness of Mr. Heyward’s actions, and
  the court should vary downward from the guideline range.
Case 1:22-cr-00087-JMA-CLP Document 289 Filed 02/06/24 Page 4 of 5 PageID #: 1149
                                                                      United States v. Kai Heyward
                                                                                         Page 4 of 5
                                                                                  February 6, 2024

         Mr. Heyward’s history and characteristics

        Mr. Heyward’s father passed away unexpectedly from kidney failure almost
  ten years ago when, Mr. Heyward was only fourteen years old. One might be
  tempted to say that this trauma, serious though it was, cannot excuse (or even
  explain) the instant offense or the conduct that led to Mr. Heyward’s misdemeanor
  convictions. This would be a mistake. Mr. Heyward and his father were
  extraordinarily close and spent an unusual amount of time together, including one
  coaching the other on the football field. His father’s death left Mr. Heyward
  confused and bereft. Though he was lucky that his mother had a career that could
  support the family financially, her work kept her away from home and left Mr.
  Heyward unsupervised for much of his days.

        Mr. Heyward had difficulty handling the unexpected trauma of his father’s
  death and started doing, and behaving, poorly in school. His attempt to right his
  sinking ship by playing football at a private high school did not work out. Injuries
  had reduced his skill as a player. He was also required to repeat the tenth grade,
  which made him feel like a failure. He left that school after one year and, though he
  attended other high schools thereafter, he did not graduate.

         As a teenager and young adult, Mr. Heyward was exposed to significant
  trauma because of violent crime in his Canarsie neighborhood. No fewer than six of
  his close friends met violent ends in the past few years. This background only added
  to Mr. Heyward’s confusion and feelings of hopelessness and clearly contributed to
  the conduct which brings him before the Court for sentencing.

         In 2022, before his arrest in this matter, Mr. Heyward moved with his
  mother and brother to a rural hamlet in Delaware. His mother and he decided that
  starting over, away from Brooklyn, was the best option for him. 4 This is notable
  because it is evidence of Mr. Heyward’s desire to change his life; he had the option
  to remain in Brooklyn had he wanted. Life in Delaware has not been easy; Mr.
  Heyward has been unable to find work. But he keeps at it, as his mother writes,
  “his attitude now is to keep trying.” (Ex, A).

         Mr. Heyward’s decision to improve his life is also evidenced by his compliance
  with very strict conditions of release. Conditions that, even today, two years after
  his arrest, require him to be at home from 7:00 p.m. to 9:00 a.m. on weekdays and
  all day on weekends. This compliance, as well as the strict nature and length of his
  release conditions are relevant to the sentence this Court will impose.




  4      Attached as Exhibit A are letter from Mr. Heyward’s mother and brother addressed to the
  Court regarding sentencing.
Case 1:22-cr-00087-JMA-CLP Document 289 Filed 02/06/24 Page 5 of 5 PageID #: 1150
                                                                        United States v. Kai Heyward
                                                                                           Page 5 of 5
                                                                                    February 6, 2024

  CONCLUSION

          Because of the large amount of loss attributed to Mr. Heyward through
  relevant conduct of others, a guideline sentence here would be more severe than
  necessary to serve the ends of justice. Mr. Heyward’s background, including the loss
  of his father as a young teenager and his subsequent struggles, also warrants a
  sentence below the guideline range.

        Mr. Heyward’s move to Delaware prior to his arrest, as well as his
  compliance with strict conditions of pretrial release for two years indicate that he is
  prepared to move on to a more productive stage of his life. He asks the Court to
  impose a sentence that allows him to do so. 5

         Thank you for your attention to this matter.

                                                Respectfully submitted,

                                                         /s/
                                                ______________________
                                                Michael K. Schneider, Esq.
                                                Assistant Federal Defender
                                                (718) 330-1161

  cc:    Clerk of the Court [by ECF]
         AUSA Michael Gibaldi [by ECF and email]
         AUSA Claire S. Kedeshian [by ECF and email]
         USPO Ashtin Audain [by email]
         Mr. Kai Heyward [by email]




  5       Mr. Heyward is, of course aware of the sentences imposed on two of his codefendants: Mr.
  Brown and Mr. Jean-Pierre—22 and 25 months respectively. Mr. Heyward’s case can be
  distinguished from those. Unlike Mr. Heyward, Mr. Brown was apparently unable to abide by the
  conditions of his pretrial release and was incarcerated for months prior to sentencing. Mr. Jean-
  Pierre was individually responsible for more than $130,000 of loss, more than five times the amount
  attributable to Mr. Heyward. Thus, a lesser sentence for Mr. Heyward would not contravene “the
  need to avoid unwarranted sentence disparities among defendants with similar records who have
  been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).


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