Plea Agreement — United States v. Amber Marie Clason, No. 21-CR-493-GKF (Dkt. 282, N.D. Okla.)

Summary

In this plea agreement in Case No. 21-CR-493-GKF in the Northern District of Oklahoma, Amber Marie Clason agreed to plead guilty to Count 167 of the Indictment, conspiracy to commit wire fraud under 18 U.S.C. § 1349. In the factual basis Amber Marie Clason admits joining Linda Been and others in a retail theft ring that stole property from stores in Tulsa and the surrounding area and sold it to Linda Been for payment via CashApp. On or about September 25, 2020, Linda Been transferred approximately $300.00 via CashApp as payment for stolen property, a transaction that sent wire communications to servers in California. The parties stipulate that the loss was less than $6,500.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,
Plaintiff,
v. Case No. 21-CR-493-GKF

AMBER MARIE CLASON,

Defendant.

Plea Agreement

The United States of America, by and through Clinton J. Johnson, United States
Attorney for the Northern District of Oklahoma, and Richard M. Cella, Assistant
United States Attorney, and the defendant, AMBER MARIE CLASON, in person
and through counsel, Alexis Gardner, respectfully inform the Court that they have
reached the following plea agreement.

Ls Plea

The defendant agrees to enter a voluntary plea of guilty to the following:

COUNT 167: 18 U.S.C. § 1349 —Conspiracy to Commit Wire Fraud

as set forth in the Indictment in the instant case, Northern District of Oklahoma, and

admits to being in fact guilty as charged in the count to which the defendant is wes

Revised 02-28-20 (Standard) é

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pleading guilty.
2s Waiver of Constitutional Rights
The defendant understands that, by pleading guilty, the following constitutional
rights will be relinquished:
a. the right to plead not guilty;

b. the right to be tried by a jury, or, if the defendant wishes and with the
consent of the Government, to be tried by a judge;

c. at trial, the defendant has the right to an attorney, and if defendant could
not afford an attorney, the Court would appoint one to represent the defendant;

d. the defendant has the right to assist in the selection of the jury;

e. during trial, the defendant would be presumed innocent, and a jury would
be instructed that the Government has the burden to prove the defendant guilty
beyond a reasonable doubt and by a unanimous verdict;

f. the defendant has the right to confront and cross-examine witnesses against
the defendant;

g. if desired, the defendant could testify on the defendant’s own behalf and
present witnesses in the defendant’s defense;

h. if the defendant did not wish to testify, that fact could not be used against
the defendant, and a jury would be so instructed;

i. if the defendant were found guilty after a trial, the defendant would have
the right to appeal that verdict to determine if any errors had been committed during
trial that would require either a new trial or a dismissal of the charges;

j. at trial, the defendant would be entitled to have a jury determine beyond a
reasonable doubt any facts which may have the effect of increasing the defendant’s
mandatory minimum or maximum sentence; and

k. any rights and defenses defendant may have under the Excessive Fines

Clause of the Eighth Amendment to the United States Constitution to the forfeiture
of property in this proceeding or any related civil proceeding, special or other

assessment, and any order of restitution.
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By pleading guilty, the defendant will be giving up all of these rights. By pleading
guilty, the defendant understands that the defendant may have to answer questions
posed to defendant by the Court, both about the rights that the defendant will be
giving up and the factual basis for the defendant’s plea.

3. Appellate and Post-Conviction Waiver

In consideration of the promises and concessions made by the United States in
this plea agreement, the defendant knowingly and voluntarily agrees to the following
terms:

a. The defendant waives the right to directly appeal the conviction and
sentence pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a); except that the

defendant reserves the right to appeal from a sentence that exceeds the statutory
maximum;

b. The defendant expressly acknowledges and agrees that the United States
reserves all rights to appeal the defendant’s sentence as set forth in 18 U.S.C. §
3742(b), and U.S. v. Booker, 543 U.S. 220 (2005); and

c. The defendant waives the right to collaterally attack the conviction and
sentence pursuant to 28 U.S.C. § 2255, including any assessment, forfeiture,
restitution order, the length of term of supervised release and any condition of
supervised release, except for claims of ineffective assistance of counsel.

The defendant expressly acknowledges that counsel has explained her appellate

and post-conviction rights; that the defendant understands her rights; and that the

defendant knowingly and oar. ( rights as set forth above.
AMBER MARIE CLASON

4. Departure and Variance Waiver

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In consideration of the promises and concessions made by the United States in
this plea agreement, the defendant knowingly and voluntarily agrees to the
following:

a. the defendant agrees not to request, recommend, or file a motion seeking a
departure from the Guidelines range; and

b. the defendant agrees not to request, recommend, or file a motion seeking a
variance below the Guidelines range pursuant to the § 3553(a) factors.

5. Freedom of Information Act Waiver

The defendant waives all rights, whether asserted directly or by a representative,
to request or to receive from any department or agency of the United States any
records pertaining to the investigation or prosecution of this case including, without
limitation, any records that may be sought under the Freedom of Information Act, 5
U.S.C. § 552, or the Privacy Act of 1974, 5 U.S.C. § 552a.

6. Rule 11 Rights Waiver

The defendant knowingly and expressly waives all of the rights afforded
defendant pursuant to the provisions of Rule 11(f) of the Federal Rules of Criminal
Procedure. In other words, after entry of a plea made pursuant to this plea
agreement, and in consideration thereof, the following shall be admissible against the
defendant:

a. A plea of guilty which is later withdrawn or which the defendant seeks to
withdraw;

b. Any statement made in the course of any proceeding under Rule 11
regarding said plea of guilty; and

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c. Any statement made in the course of plea discussions with an attorney or
agent for the Government, or which were made pursuant to a proffer letter
agreement, which result in a plea of guilty later withdrawn.

ts Waiver of Right to Jury Trial on Sentencing Factors

The defendant, by entering this plea, also waives the right to have facts that
determine the offense level under the Sentencing Guidelines (including facts that
support any specific offense characteristic or other enhancement or adjustment) (1)
charged in the Indictment, (2) proven to a jury, or (3) proven beyond a reasonable
doubt. The defendant explicitly consents to have the sentence based on facts to be
established by a preponderance of the evidence before the sentencing judge pursuant
to United States v. Crockett, 435 F.3d 1305 (10th Cir. 2006), and United States v.
Magallanez, 408 F.3d 672 (10th Cir. 2005), and to allow the Court to consider any
reliable evidence without regard to its admissibility at trial. The defendant explicitly
acknowledges that her plea to the charged offense authorizes the Court to impose
any sentence up to and including the maximum sentence set forth in the United
States Code. The defendant also waives all challenges to the constitutionality of the

Sentencing Guidelines.

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8. Payment of Monetary Penalties

The defendant understands that the Court may impose a fine pursuant to the
Sentencing Guidelines. The defendant agrees, as a part of this agreement, to submit
to interviews by the United States Attorney’s Financial Litigation Unit regarding the
defendant’s financial status, and to complete and submit a financial statement, under
oath, not later than two weeks after the date of this plea agreement. The defendant
understands that, by law, interest accrues on any remaining balance of the debt.

That monetary penalties imposed by the Court will be (i) subject to immediate
enforcement as provided for in 18 U.S.C. § 3613, and (ii) submitted to the Treasury
Offset Program so that any federal payment or transfer of returned property the
defendant receives may be offset and applied to federal debts but will not affect the
periodic payment schedule.

9. Restitution for Offense of Conviction

The defendant understands that the Court can order the defendant to pay
restitution for the full loss caused by defendant’s conduct set forth above. The
defendant agrees to the entry of a Restitution Order for the full amount of the
victims’ losses. At this time, the Government is aware that the following victims
have suffered the following losses:

To be determined at sentencing.

The defendant understands that restitution is mandatory without regard to the
defendant’s ability to pay.

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10. Restitution for Other Offenses

The defendant agrees the Court’s consideration of the amount of restitution shall
NOT be limited to the amounts alleged in the count(s) to which the defendant is
pleading guilty and may include all relevant conduct as well as any stipulated
amounts as set forth below pursuant to 18 U.S.C. § 3663. Therefore, the defendant
also agrees that restitution is due to the following victim(s) of an offense listed in 18
U.S.C. § 3663A(c)(1)(A) that is not the offense of conviction but nonetheless gave
rise to this plea agreement.

To be determined at sentencing.

11. Restitution not Dischargeable in Bankruptcy

The defendant further agrees that any amount ordered by the Court to be paid as
restitution may not be discharged, in whole or in part, in any bankruptcy proceeding.

12. Special Assessment

The defendant hereby agrees to pay the total amount required for the Special
Monetary Assessment ($100 per felony count) to the United States District Court
Clerk before the time of the sentencing hearing or as directed by the District Court.

13. Factual Basis and Elements

The elements that the United States must prove beyond a reasonable doubt in
order to convict under 18 U.S.C. § 1349 are as follows:

a. The defendant agreed with at least one other person to accomplish a
common and unlawful plan to commit a fraud crime listed in Title 18, Chapter 63, as

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b. The defendant knew the essential objective of the conspiracy;

é. The defendant knowingly and voluntarily participated in the
conspiracy; and

d. There was interdependence among the members of the conspiracy; that
is, the members, in some way or manner, intended to act together for their shared
mutual benefit within the scope of the conspiracy charged;

To prove wire fraud, in turn, the government would have to show beyond a
reasonable doubt the following elements:

a. The defendant devised or intended to devise a scheme to defraud or to
obtain money or property by means of false or fraudulent pretenses, representations

or promises, that is described in the indictment;

b. The defendant acted with specific intent to defraud or to obtain money
or property by means of false or fraudulent pretenses, representations or promises;

os The defendant used interstate or foreign wire communications
facilities, or caused another person to use interstate or foreign wire communications
facilities, for the purpose of carrying out the scheme; and

d. The scheme employed false or fraudulent pretenses, representations, or
promises that were material.

With regard to the factual basis required by Federal Rule of Criminal Procedure
11(b)(3), the defendant agrees and stipulates that there is a factual basis for the plea
of guilty and relieves the United States of any further obligation to adduce such
evidence.

The defendant, AMBER MARIE CLASON, admits knowingly, willfully and
intentionally committing or causing to be committed the acts constituting the crime
alleged in Count 167 in the instant case, and confesses to the Court that the

defendant is, in fact, guilty of such crime.
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I, Amber Marie Clason, admit that, between approximately January
2018 to November 2020, within the Northern District of Oklahoma, I
conspired with Linda Been and others to participate in a retail theft
ring. The scheme involved stealing property from various retail
storefronts in Tulsa and the surrounding area and selling the property to
Linda Been for payment. I knew the objective of the conspiracy and
voluntarily participated in it. Specifically, I stole property at various
stores and then sold the stolen property to Linda Been and received
payment from her via CashApp, a mobile payment service. CashApp
does not have servers in Oklahoma and all CashApp transactions
necessarily utilize servers in California. The scheme frequently
employed fraudulent pretenses. For example, I would conceal items
from retailers upon exiting storefronts to support the pretense that I was
not absconding for property without payment. On or about September
25, 2020, I caused Linda Been, who was at the time within the
Northern District of Oklahoma, to transfer approximately $300.00 to
me via CashApp as payment for stolen property I had provided her.
This transaction caused interstate wire communications to be
transmitted between the Northern District of Oklahoma and servers in

California.
AMBER MARIE CLASON Date
Defendant

Further Prosecution

The United States shall not initiate additional criminal charges against the

defendant in the Northern District of Oklahoma that, as of the date of the

defendant’s acceptance of this agreement, arise from its investigation of the

defendant’s actions and conduct giving rise to the instant Indictment, save and

except crimes of violence and criminal acts involving violations investigated by the

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United States Internal Revenue Service. The defendant understands, however, that
this obligation is subject to all “Limitations” set forth below, and that the United
States Attorney’s Office for the Northern District of Oklahoma is free to prosecute
the defendant for any illegal conduct (i.e., violation of federal criminal laws) not
discovered by or revealed to the Government during its investigation or occurring
after the date of this agreement.

15. Dismissal of Remaining Counts

If the Court finds the defendant’s plea of guilty to be freely and voluntarily made
and accepts the plea, then the United States will move, at the appropriate time, to
dismiss the remaining counts in the instant case, if any, as to this defendant.

If the defendant’s guilty plea is rejected, withdrawn, vacated, or reversed at any
time, the United States will be free to prosecute the defendant for all charges of
which it then has knowledge, and any charges that have been dismissed will be
automatically reinstated or may be re-presented to a grand jury with jurisdiction over
the matter. In such event, the defendant hereby waives any objections, motions or
defenses based upon the applicable statute of limitations, the Speedy Trial Act, or
constitutional restrictions as to the time of bringing such charges.

16. Acceptance of Responsibility

Provided the defendant clearly demonstrates acceptance of responsibility, the
United States agrees to recommend a two-level reduction in offense level pursuant to

U.S.S.G. § 3E1.1. The United States agrees to file a motion recommending that the

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defendant receive an additional one-level reduction pursuant to U.S.S.G. § 3E1.1(b)
if the defendant is otherwise eligible therefor. The sentencing judge is in a unique
position to evaluate the acceptance of responsibility, and the Court’s determination
will provide the final approval or disapproval of any Section 3E1.1 point level
reduction for timely acceptance of responsibility.

The obligations of the Government herein, relative to acceptance of responsibility
are contingent upon the defendant's continuing manifestation of acceptance of
responsibility as determined by the United States. If the defendant falsely denies, or
makes conflicting statements as to, her involvement in the crime to which he is
pleading, falsely denies or frivolously contests relevant conduct that the Court
determines to be true, willfully obstructs, or attempts to obstruct or impede the
administration of justice as defined in U.S.S.G. § 3C1.1, or perpetrates or attempts to
perpetrate crimes while awaiting sentencing, or advances false or frivolous issues in
mitigation, the United States expressly reserves the right to withdraw any
recommendation regarding acceptance of responsibility without breaching the
agreement.

17. Sentence

a. Imprisonment

The defendant acknowledges that under 18 U.S.C. § 1343 the maximum statutory
sentence is 20 years of imprisonment and a fine of not more than $250,000 or twice
the pecuniary gain/loss caused by the defendant’s acts.

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b. Supervised Release

Additionally, the defendant is aware, if imprisonment is imposed, that the Court
shall include as part of the sentence a requirement that the defendant be placed on a
term of supervised release after imprisonment not to exceed 3 years.

If the term of supervised release for any count of conviction is revoked, the
defendant may be imprisoned for an additional term not to exceed the term of
imprisonment authorized in 18 U.S.C. § 3583(e)(3) for the offense of conviction,
with no credit being given for any time served while on supervised release. Further,
the Court may impose another term of supervised release following any term of
imprisonment imposed for a violation of supervised release conditions, and this term
of supervised release may not exceed the term of supervised release originally
authorized by statute for the offense of conviction less any term of imprisonment that
was imposed upon revocation of supervised release (18 U.S.C. § 3583(e) and (h)). Ifa
second or subsequent term of supervised release is revoked, the Court may impose
another term of imprisonment not to exceed the difference between any
imprisonment imposed for a prior revocation of supervised release for the offense of
conviction and the term of imprisonment authorized pursuant to 18 U.S.C.

§ 3583(e)(3). Accordingly, the original term of imprisonment when combined with
any term of imprisonment arising from revocations of supervised release, may result
in a total amount of imprisonment greater than the statutory maximum term for the
offense of conviction.

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c. Guidelines

The defendant is aware that the Sentencing Guidelines promulgated pursuant to
the Sentencing Reform Act of 1984 at 18 U.S.C. § 3551 through § 3742, and 28
U.S.C. § 991 through § 998, are advisory. The district courts, while not bound to
apply the Sentencing Guidelines, must consult those Guidelines and take them into
account when sentencing. See 18 U.S.C.A. § 3553(a).

The sentence imposed in federal court is without parole. The defendant is further
aware that the sentence has not yet been determined by the Court, that any estimate
of the likely sentence received from any source is a prediction, not a promise, and
that the Court has the final discretion to impose any sentence up to the statutory
maximum. The defendant further understands that all recommendations or requests
by the United States pursuant to this agreement are not binding upon the Court.

If the sentencing Court should impose any sentence up to the maximum
established by statute, the defendant cannot, for that reason alone, withdraw
defendant’s guilty plea, but will remain bound to fulfill all of defendant’s obligations
under this agreement.

Nothing in this plea agreement, save and except any stipulations contained
herein, limits the right of the United States to present to the Court or Probation
Office, either orally or in writing, any and all facts and arguments relevant to the
defendant’s sentence that are available to the United States at the time of sentencing.

The defendant acknowledges hereby that relevant conduct, that is, conduct charged

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in any dismissed count and all other uncharged related criminal activities, will be
used in the calculation of the sentence. The United States reserves its full opportunity
to speak pursuant to Rule 32(i)(4)(A)(ii1) of the Federal Rules of Criminal Procedure.

The defendant further understands that the sentence to be imposed upon the
defendant will be determined solely by the sentencing judge, and that the sentencing
judge is not bound by the following stipulations. The United States cannot and does
not make any promise or representation as to what sentence the defendant will
receive.

18. Stipulations

The defendant and the United States agree and stipulate to the following facts:

a. For purposes of calculating “Loss” pursuant to United States Sentencing
Guideline § 2B1.1, the loss caused by Defendant’s conduct was less than $6,500.

It is understood that neither the Court nor the United States Probation Office is
bound by the foregoing stipulations, either as to questions of fact or as to
determination of the correct advisory sentencing guideline calculation.

Having been fully apprised by defense counsel of defendant’s right to seek
compensation pursuant to Public Law 105-119, the defendant WAIVES any and all
such right, and stipulates that defendant is not a “prevailing party” in connection
with this case.

19. Limitations

This plea agreement shall be binding and enforceable upon the Office of the

United States Attorney for the Northern District of Oklahoma, but in no way limits,

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binds or otherwise affects the rights, powers, duties or obligations of any state or
local law enforcement agency, administrative or regulatory authorities, civil or
administrative enforcement, collection, bankruptcy, adversary proceedings or suits
which have been or may be filed by any governmental entity, including without
limitation, the Internal Revenue Service, the Tax Division of the Department of
Justice and the trustee in bankruptcy.

20. Breach of Agreement

In the event either party believes the other has failed to fulfill any obligations
under this agreement, then the complaining party shall, in its discretion, have the
option of petitioning the Court to be relieved of its obligations herein. Whether or
not a party has completely fulfilled all of its obligations under this agreement shall be
determined by the Court in an appropriate proceeding at which any disclosures and
documents provided by either party shall be admissible and at which the complaining
party shall be required to establish any breach by a preponderance of the evidence.
The defendant hereby WAIVES any right under Rule 11(d) and (e) of the Federal
Rules of Criminal Procedure to withdraw from defendant’s plea and this agreement,
save and except under circumstances where the Court rejects the plea agreement
under Rule 11(c)(5) and except for the limited reasons outlined above in this
paragraph.

In the event that AMBER MARIE CLASON, after entry of a plea of guilty,

unsuccessfully attempts to withdraw the defendant’s plea of guilty, the United States

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may continue to enforce the agreement but will no longer be bound by any particular
provision in this agreement. This provision will not have any continued vitality if it is
determined by the Court that the United States acted in bad faith to bring about the
attempted withdrawal of plea.

21. Conclusion

No agreements, representations or understandings have been made between the
parties in this case, other than those which are explicitly set forth in this plea
agreement and the Plea Agreement Supplement that the United States will file in this
case (as is routinely done in every case, even though there may or may not be any
additional terms) and none will be entered into unless executed in writing and signed
by all of the parties.
SO AGREED:

CLINTON J. JOHNSON
United States Attorney

CHARD M. CELLA Dated
Assistant United States Attorney

ALEXIS GARDNER Dated
Attorney for Defendant
AMBER MARIE CLASON Dated
Defendant

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I have read this agreement and carefully reviewed every part of it with my
attorney. I understand it, and I voluntarily agree to it. Further, I have consulted with
my attorney and fully understand my rights with respect to sentencing which may
apply to my case. No other promises or inducements have been made to me, other
than those contained in this pleading. In addition, no one has threatened or forced
me in any way to enter into this agreement. Finally, I am satisfied with the

representation of my attorney in this matter.

AMBER MARIE CLASON Dated
Defendant

I am counsel for the defendant in this case. I have fully explained to the defendant

the defendant’s rights with respect to the pending Indictment. Further, I have

reviewed the provisions of the Sentencing Guidelines and Policy Statements and I
have fully explained to the defendant the provisions of those Guidelines which may
apply in this case. I have carefully reviewed every part of this plea agreement with
the defendant. To my knowledge, the defendant’s decision to enter into this
agreement is an informed and voluntary one.

ALEXIS GARDNER Dated J /
Counsel for the Defendant

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