Pandemic Darlings The pandemic economy, in original documents
Home Source documents Position of the United States on Sentencing: Brandon Fitzgerald-Holley (D. Md., January 24, 2022)

Position of the United States on Sentencing: Brandon Fitzgerald-Holley (D. Md., January 24, 2022)

Summary

The Position of the United States on Sentencing and Restitution in United States v. Brandon Fitzgerald-Holley, Criminal No. GJH-21-250, in the United States District Court for the District of Maryland, filed January 24, 2022 (Document 20). The government asks the Court to impose a sentence at the low end of the advisory range under the Guidelines and to order full restitution in the amount of $305,854. It states that Fitzgerald-Holley pleaded guilty on December 3, 2021 to Count One, Wire Fraud, and that the total offense level is 16 with an advisory range of 21 to 27 months of imprisonment. It states that on or about June 13, 2020 Fitzgerald-Holley applied for a PPP loan of $305,854 on behalf of the Coalition for Social Justice and Reform Incorporated and falsely claimed 25 employees.

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

Cite this document

“Position of the United States on Sentencing: Brandon Fitzgerald-Holley (D. Md., January 24, 2022).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/sentencing-memorandum-no-8-21-cr-00250-dkt-20-d-md-826880b47d/, SHA-256 6c998bb355814851d76fd6b115da158ef2e7dc09d2aa1ed7dbcb1c13cfb2b4be.

Full text

         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 1 of 10



                      IN THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF MARYLAND

 UNITED STATES OF AMERICA       *
                                *
     v.                         *      CRIMINAL NO. GJH-21-250
                                *
 BRANDON FITZGERALD-HOLLEY,     *
                                *
           Defendant            *
                                *
                             *******
   POSITION OF THE UNITED STATES ON SENTENCING AND RESTITUTION

              Comes now the United States of America, by and through its undersigned counsel,

and submits this Position on Sentencing and Restitution. Sentencing is set for March 7, 2022.

As set forth below, the government respectfully requests that this Court impose a sentence at the

low end of the advisory range under the United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) and order the Defendant, Brandon Fitzgerald-Holley, to pay full restitution in the

amount of $305,854. In support of this position, the government submits as follows:

                                       BACKGROUND

       In the Spring of 2020, in connection with the COVID-19 pandemic, Congress authorized

several programs that provided financing to small businesses and other entities facing hardships

as a result of the ongoing pandemic.      The Paycheck Protection Program (“PPP”) and the

Economic Injury Disaster Loan (“EIDL”) were among these financing programs. Both the PPP

and EIDL were overseen by the Small Business Administration (“SBA”).

       The EIDL program provided low-interest financing to small businesses, renters, and

homeowners experiencing substantial financial disruption due to the COVID-19 pandemic in the

form of loans and advances of up to $10,000. In order to obtain an EIDL and advance, a

qualifying business was required to submit an application to the SBA and provide information



                                               1
         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 2 of 10



about its operations, such as the number of employees, gross revenues for the 12-month period

preceding the onset of the COVID-19 pandemic. The applicant was required to also certify that

the information in the application was true and correct to the best of the applicant’s knowledge.

The EIDL program was overseen by the SBA, who processed EIDL applications and disbursed

the EIDL funds.

       The PPP program authorized forgivable loans to small businesses and placed restrictions

on the ways in which borrowers could spend PPP funds – primarily payroll costs, interest on

mortgages, rent, and utilities. Under the terms of the PPP, loans were only available to small

businesses that existed and were in operation prior to the onset of the COVID-19 pandemic in

early 2020. Thus, in order to obtain a PPP loan, a qualifying business was required to submit a

signed application that included information about the business’s prior expenses, including (a)

average monthly payroll expenses; and (b) number of employees. These figures were used to

calculate the amount of money the small business was eligible to receive under the PPP.

Applicants were also required to submit documentation, including tax documents, verifying the

business’s prior payroll expenses.

       In contrast to the EIDL program where borrowers applied to the SBA directly, under the

PPP, borrowers applied through participating lenders—private financial institutions that worked

with the SBA to process PPP applications and disburse funds. The participating lender would

process the PPP application, and, if approved, fund the loans, which were 100% guaranteed by the

SBA. Data from the application, including information about the borrower, the total amount of

the loan, and the listed number of employees, was transmitted by the lender to the SBA in the

course of processing the loan. Under the terms of the PPP, for a lender to seek repayment from

the SBA on a PPP loan, the lender must comply with a detailed process under the SBA’s rules.



                                               2
         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 3 of 10



                       THE DEFENDANT’S SCHEME TO DEFRAUD

       In or around March 2020, Fitzgerald-Holley applied to the SBA for an EIDL and an

advance on behalf a non-operational non-profit, the Coalition for Social Justice and Reform

Incorporated (the “Coalition”).     As part of that application, Fitzgerald-Holley fraudulently

represented that the Coalition had 25 employees and had $546,000 of gross revenue and $500,000

of nonprofit costs for the 12-month period prior to the COVID-19 pandemic. In reality, the

Coalition never had any employees; it was an entity formed by Fitzgerald-Holley in 2018 that

never had any regular business operations, expenses, or income. Thus, Fitzgerald-Holley made

materially false and misleading statements to the SBA in an effort to fraudulently obtain EIDL

funds that were intended for legitimate small businesses suffering financial hardship as a result of

the COVID-19 pandemic. In or around June 2020, the SBA denied the application; Fitzgerald-

Holley did not receive any EIDL funds on behalf of the Coalition.

       On or about June 13, 2020, shortly after his fraudulent EIDL application was denied,

Fitzgerald-Holley fraudulently applied for a PPP loan in the amount of $305,854.     As part of the

application, Fitzgerald-Holley falsely claimed that the Coalition had 25 employees with total

wages of $1,385,000 for the tax year 2019 and average monthly payroll costs of $122,342. In

addition, Fitzgerald-Holley created and submitted a fraudulent IRS Form 940 Employers Annual

Federal Unemployment Tax Return (“Form 940”) for the tax year 2019, which listed Fitzgerald-

Holley as the CEO of the Coalition. In reality, the Coalition never submitted a Form W-3 or Form

940 for the tax year 2019 and these documents were fabricated by Fitzgerald-Holley.

       As indicated above, while EIDL applications were processed and funded by the SBA

directly, PPP applications were processed and funded by participating lenders. In this case,

Fitzgerald-Holley applied for PPP funding through Institution 1, which was an online financial



                                                 3
         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 4 of 10



technology company that specialized in small business lending. 1 Institution 1 participated as a

non-bank PPP lender to small businesses and utilized servers in Virginia for processing PPP loans.

       On or about June 13, 2020, based on the false representations made by Fitzgerald-Holley,

Institution 1 approved the PPP loan application submitted by Fitzgerald-Holley. Fitzgerald-

Holley signed the note for the PPP loan on behalf of the Coalition as the CEO and provided

Institution 1 with bank account information for wiring the funds. On or about June 16, 2020,

Institution 1 sent $305,854 in PPP loan proceeds via interstate wire into Fitzgerald-Holley’s

personal checking account at his direction. Once the funds arrived in his account, Fitzgerald-

Holley proceeded to transfer funds between and among various accounts that he controlled, both

in his name and in the name of the Coalition. Fitzgerald-Holley proceeded to use the $305,854

in fraudulent proceeds for personal use, including purchasing a Dodge Charger and accessories,

totaling more than $84,000, renting luxury vacation properties, and withdrawing more than

$64,000 in cash and spending over $23,000 on other personal items in the 30 days following his

receipt of the fraud proceeds.

                                   PROCEDURAL HISTORY

       In October 2020, law enforcement executed a search warrant at Fitzgerald-Holley’s home.

During the search, law enforcement seized the Dodge Charger. Law enforcement also identified

and seized several expensive items Fitzgerald-Holley had purchased, including television

equipment and stadium seating, as well as other furniture. Fitzgerald-Holley agreed to voluntarily

speak with law enforcement and signed an advice of rights form acknowledging that understood

and was waiving his right to remain silent and right to have counsel appointed. During the



1 Institution 1 is the victim of Fitzgerald-Holley’s scheme and is, therefore, not identified by name
in this filing. Institution 1 has submitted a statement regarding restitution, which is attached as
Exhibit A and is being filed under seal.
                                                 4
         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 5 of 10



interview, Fitzgerald-Holley acknowledged that he had applied for the PPP loan and submitted the

paperwork. Fitzgerald-Holley acknowledged that the Coalition did not have any employees and

it was just him. He also indicated that the Dodge Charger had been purchased with PPP funds,

but he intended to use it for the Coalition. Fitzgerald-Holley was also questioned during the

interview by an agent from the Social Security Administration Office of Inspector General about

continuing to receive disability payments while he was employed. At the conclusion of the

interview, Fitzgerald-Holley was served with a letter indicating that he was the target of a grand

jury investigation and providing instructions for how he could obtain counsel.

       Fitzgerald-Holley did not contact counsel or take any steps to resolve the criminal matter.

On July 7, 2021, a grand jury returned a three-count indictment against Fitzgerald-Holley, charging

him with Wire Fraud (18 U.S.C. § 1343) and Money Laundering (18 U.S.C. § 1957).          ECF No.

1.   The charges stemmed from Fitzgerald-Holley’s fraudulent submission of the PPP loan and

laundering of the proceeds through multiple accounts.    On December 3, 2021, Fitzgerald-Holley

pleaded guilty pursuant to a plea agreement to Count One of the Indictment, which charged him

with Wire Fraud, in violation of 18 U.S.C. § 1343. ECF No. 16. As part of his plea agreement,

Fitzgerald-Holley acknowledged that he fraudulently submitted the EIDL and PPP loan

applications; that the Coalition did not have any business operations, expenses, or payroll costs;

that he misappropriated the PPP funds for personal use and did not spend them on authorized items;

and that he falsified tax documents to further the scheme. Fitzgerald-Holley also agreed that he

caused a loss of $305,854 through the scheme.

                  APPLICATION OF THE SENTENCING GUIDELINES

       The government agrees with the Guidelines calculation as set forth in the Presentence

Investigation Report (“PSR”) prepared by the Probation Officer. As set forth in the PSR, the base



                                                5
         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 6 of 10



offense level for wire fraud pursuant to U.S.S.G. §2B1.1(a)(1) is 7. The actual loss in this case is

approximately $305,854, which results in application of a 12-level enhancement under U.S.S.G.

§2B1.1(b)(1)(G) based on loss greater than $250,000 but less than $550,000. Therefore the total

offense level is 19. The Defendant timely accepted responsibility by pleading guilty, resulting in

a reduction of two levels under U.S.S.G. §3E1.1(a) and the government anticipates moving at

sentencing for an additional one-level reduction under U.S.S.G. §3E1.1(b), resulting in a total

offense level of 16. Based on Fitzgerald-Holley’s criminal history, the advisory range under the

Guidelines is 21 to 27 months of imprisonment.

         APPLICATION OF THE FACTORS SET FORTH IN 18 U.S.C. § 3553(a)

   I. The nature and circumstances of the offense and the history and characteristics of
      the defendant (18 U.S.C. § 3553(a)(1))
       The nature and circumstances of the offense warrant a sentence at the low end of the

Guidelines. During the midst of a pandemic, the Defendant submitted not one, but multiple

fraudulent applications for government funds from programs designed to help small businesses

impacted by the pandemic. Fitzgerald-Holley submitted these applications, claiming that the

funds would be used to keep a nonprofit organization operating and making payroll. When

Fitzgerald-Holley’s first fraudulent application was denied, he again submitted fraudulent

paperwork in an effort to obtain government funds. In addition, he falsified federal tax documents

to support this application. Upon receipt of these fraudulent proceeds, Fitzgerald-Holley quickly

spent nearly all the funds on personal items – an expensive car, clothing, televisions – rather than

on any allowable items such as payroll or mortgage expenses. While the Defendant claimed to

be submitting these applications on behalf of a nonprofit organization—purportedly established to

do work benefiting others—he was really using these funds entirely for personal use.

       The Defendant’s scheme did not just impact the bank that he stole from. It also had a


                                                 6
         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 7 of 10



broader impact on the community, as schemes like these prevented legitimate businesses from

obtaining PPP funds. As the media documented throughout 2020, the SBA and participating

lenders struggled to keep up with the demand for PPP funding in the early days of the pandemic;

in fact, the first round of PPP funding was exhausted within two weeks. 2 Fraudulent applications

like those submitted by the Defendant took funds from those businesses that needed them, often

preventing those businesses from making payroll or paying rent.

       With respect to the history and characteristics of the Defendant, Fitzgerald-Holley has no

criminal history and has a history of gainful employment. He has a high school degree and

appears to have completed some college. He reported to Probation that he has held several jobs,

including as a special education teacher, and based on the PSR it appears that he was employed

and earning approximately $70,000 a year when he committed PPP fraud.

   II. The need for the sentence imposed to reflect the seriousness of the offense, promote
       respect for the law, provide just punishment for the offense, and afford adequate
       deterrence to criminal conduct (18 U.S.C. 3553(a)(2))
       The government respectfully submits that a sentence at the low end of the Guidelines range

is appropriate and sufficient, but not greater than necessary, in light of consideration of the

3553(a)(2) factors in this case.

       First, this was a serious offense. In 2020, as the COVID-19 pandemic spread across the

country, the government created PPP loans to help small business owners and their employees

whose livelihoods were jeopardized. The Defendant took advantage of the PPP by submitting a

false application claiming to have employees and payroll that did not exist. He stole more than

$300,000 by submitting a fraudulent application and falsifying tax forms. As noted above,


2 See, e.g., https://www.latimes.com/politics/story/2020-06-18/governments-forgivable-loans-
helped-save-millions-of-jobs-but-money-is-running-out-for-many;
https://www.bizjournals.com/baltimore/news/2020/04/17/i-feel-like-im-in-a-catch-22-maryland-
businesses.html
                                               7
         Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 8 of 10



Fitzgerald-Holley’s crimes not only affected the victim financial institution, his conduct also

impacted small businesses suffering in the COVID-19 pandemic.

       Second, a term of incarceration if appropriate to promote respect for the law, provide just

punishment for the offense, and afford adequate deterrence. As noted above, the Defendant’s

crime was serious. He stole money by lying and fabricating federal tax documents, all while

claiming to act on behalf of a nonprofit. The actions of Fitzgerald-Holley and those like him who

seek to defraud these programs make it more difficult for administrators of government and other

relief programs to get aid to individuals that qualify for and need it. Such actions also lead to

significant waste of taxpayer funds. Accordingly, the recommended sentence at the low end of

the applicable Guidelines range is sufficient, but not greater than necessary, to reflect the

seriousness of this crime and deter those like the Defendant who seek to steal from government

benefit programs.

                                        RESTITUTION

       Restitution is mandatory in this case pursuant to 18 U.S.C. § 3663A(a)(1). Restitution in

this case is $305,854, which represents the fraudulently obtained proceeds and the loss to

Institution 1. Institution 1 has submitted a victim impact statement detailing its losses, which is

attached as Exhibit A (under seal). Accordingly, the government requests that the Court order

restitution be made to Institution 1 in the amount of $305,854.



Date: January 24, 2021


       Respectfully submitted,

                                                 Erek L. Barron
                                                 Acting United States Attorney
                                                 District of Maryland

                                                8
Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 9 of 10




                              By: ___/s/__________________
                              Caitlin Cottingham
                              Assistant United States Attorney
                              United States Attorney’s Office
                              District of Maryland
                              Caitlin.Cottingham@usdoj.gov

                              Joseph Beemsterboer
                              Acting Chief, Fraud Section

                              By: ___/s/__________________
                              John J. Liolos
                              Trial Attorney
                              Fraud Section, Criminal Division
                              Department of Justice




                              9
        Case 8:21-cr-00250-GJH Document 20 Filed 01/24/22 Page 10 of 10



                              CERTIFICATE OF SERVICE

       I, Caitlin R. Cottingham, HEREBY CERTIFY that a copy of the foregoing was filed with
the Clerk of the Court using the CM/ECF system, which will send notice of such filing to all
counsel of record, on January 24, 2021.
                                                          By: /s/ Caitlin R. Cottingham
                                                          CAITLIN R. COTTINGHAM
                                                          Assistant United States Attorney




                                            10


File and source

File
20.pdf
Size
187,006 bytes
SHA-256
6c998bb355814851d76fd6b115da158ef2e7dc09d2aa1ed7dbcb1c13cfb2b4be
Our copy
20.pdf
Original
storage.courtlistener.com
Back to top