Defendant's Position on Sentencing, United States v. George Mensah, Jr. (E.D. Va., May 1, 2024)
Summary
Defendant's Position on Sentencing in United States of America v. George Mensah, Jr., Case No. 1:23-CR-00168, in the U.S. District Court for the Eastern District of Virginia, Alexandria Division, before Judge Rossie D. Alston, Jr., filed May 1, 2024 as Document 21 for a May 8, 2024 hearing. The defense asks for a below-Guidelines sentence of not more than 24 months of incarceration and 3 years of supervised release, and states the defendant pled guilty before being charged. It argues against the PSR's total offense level of 31 and range of 121 to 151 months, disputing its four-level role enhancement and its denial of credit for acceptance of responsibility, and urges the plea agreement's loss amount of $1,490,860. It states the defendant's take from the PPP and unemployment schemes was about $200,000. It is signed by David B. Smith, Counsel for George Mensah, Jr.
Summary drafted by a model from the text of the original file linked on this page 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
“Defendant's Position on Sentencing, United States v. George Mensah, Jr. (E.D. Va., May 1, 2024).”
Original at ecf.vaed.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/sentencing-memorandum-usa-v-mensah-dkt-21-e-d-va-b3beacac5a/
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Case 1:23-cr-00168-RDA Document 21 Filed 05/01/24 Page 1 of 23 PageID# 162
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIR(,INIA
Alexandria Division
UNITED STATES OF AMERICA )
)
Case No. 1:23-CR-00168
Ve )
) Judge Rossie D. Alston, Jr.
GEORGE MENSAH, JR., )
)
Hearing: May 8, 2024
Defendant. )
DEFENDANT'S POSITION ON SENTENCING
Mr. Mensah respectfully asks this Court to impose a below the Guidelines “variance”
sentence of not more than 24 months of incarceration and 3 years of supervised release. Your
Honor sentenced Ms. Rose-Marie Nsahlai, to 24 months . Her guideline range was 97-121 months
and she wear to trial , unlike Mensah who pled guilty before he was charged by the government.
Position of the United States With Respect to Sentencing in U.S. v. Rose-Marie Nsahlai, No. 1 :21-
CR-234-RDA (Doc. 160, filed Sept. 20, 2023).
She and her husband, Mr. Kindambu, obtained over $2.5 million in fraudulent PPP loan
proceeds and spent the funds on illegitimate expenditures including his personal taxes, a luxury
vehicle, a Cessna aircraft, and a beautiful luxury residence, a photo of which is attached as Exh. 1
to the Position of the United States, Doc. 55 in United States v. KindambbI, Case No. 1:20-cr-260-
RDA.
By contrast, Mr. Mensah made about 8200,000 from his criminal activity. But about half
of that amount was seized from his home for forfeiture (582,000 in cash was seized from his safe
in Tysons and the government also seized miscellaneous expensive jewelry items belonging to
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Mensah). Unlike Rose-Marie Nsahlai, who went to trial for no good reason, he pled guilty before
he was indicted. He never even thought about going to trial. Why should Mr. Mensah get a longer
sentence than Ms. Nsahlai’s 24 months?
I. THE ADVISORY SENTENCING GUIDELINES RANGE
Under the terms of the written plea agreement, Mr. Mensah and the government agreed to
recommend the application of the following United States Sentencing Guidelines (“U.S.S.G.” of
“Guidelines”) provisions:
e
A base offense leve 1 UI /9 pLIIbLldUIL LU U.D.D.U. g ID 1.1 +
•
A 14-level increase based on the total loss amount of $, pursuant to U.S.S.G. §
2B 1.1 (b)(1)(H) (actual loss greater than $550,000 but less than $1,500,000)
•
A 2-level increase because the offense involved more than 10 victims, pursuant to
U.S.S.G. g 2BI.1(b)(2)(A).
•
A 2-level increase because the offense involved 10 or more victims, pursuant to
U.S.S.G. § 2BI.1(b)(2)(S)(i)
•
A 2-level increase because Mr. Mensah possessed 5 or more means of identification
that unlawfully were produced from, or obtained by the use of another means of
identification pursuant to U.S.S.G. § 2B 1.1 (b)(11 )(C)(ii).
In addition to the above joint Guidelines recommendations, the United States agreed that
“[1]f the defendant qualifies for a two-level decrease in offense level pursuant to U.S.S.G.
§3EI.1(a) and the offense level prior to the operation of that section is a level 16 or greater, the
government agrees to” move for “an additional one-level decrease in the defendant’s offense
level.” Dkt. at 3-4.1 Thus, a Guidelines calculation consistent with the recommendations and
1 The Plea Agreement provides that the parties “have not agreed on any further sentencing issues”
and that both parties are free to argue for or against a 2 or 3 level increase for role in the offense.
However, the government agreed that it would not seek a 4 level increase for a leadership role in
the offense. X7. at 3-4. Mensah does not oppose the government’s position that a 3-level increase
for his role in the offense is warranted.
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assumptions contained in the plea agreement, results in a total offense level of 25 or 26, with a
corresponding advisory range of 63-78 or 70-87 months of imprisonment , assuming that Mr.
Mensah receives a 2 or 3 level enhancement for his role in the offense and a 3-level adjustment for
acceptance of responsibility.
The PSR, however, has recommended a markedly higher Guidelines range. Rather than a
total offense level of 25 or 26, the PSR has recommended a total offense level of 31, which
corresponds to an advisory Sentencing Guidelines range of 121 to 151 months of incarceration.
The Probation Officer’s calculations include:
a a two level (2) increase in the offense level from +14 that was provided in the plea
agreement to +16, PSR, q:79. Probation calculated the loss amount as SI,535,378
whereas the plea agreement calculated the loss amount at $1,490,860. PSR, $q67-68
n a four-level (4) enhancement for Mr. Mensah’s alleged aggravated role in the offense
pursuant to U.S.S.G. § 3BI.1(a). See id. qq69-73. In the plea agreement the
government promised not to seek a four-level (4) enhancement for a leadership
role in the offense. Plea Agreement at 3 .
a and the Probation Officer declined to apply any reduction in the offense level for
acceptance of responsibility. PSR at q75-76.
Mr. Mensah respectfully disagrees with the PSR’s Guidelines calculations and asks this Court to
calculate the Guidelines range as recommended by the parties in the plea agreement; and to give
Mr. Mensah a 3-level reduction for acceptance of responsibility. Mr. Mensah preserved all of these
issues for sentencing by sending a timely objection letter to the Probation Officer on January 19,
2024. A copy of that letter is attached as Exhibit A. At the government’s suggestion, Mr. b4ensah
thereafter attempted to convince Probation that he accepted responsibility by sending a letter to
Probation on April 2, 2024, expressing his agreement with everything in the revised Statement of
Facts. A copy of that letter is included in the final PSR at page 29.
In further support of his position, Mr. Mensah offers the following:
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A. The Court Should Not Follow the PSR’s Recommendation as to Loss Amount,
Leadership Role in the Offense and Acceptance of Responsibility.
1. Role in the Offense
Mr. Mensah respectfully disagrees with the PSR’s application of a four-level enhancement
based on his role in the offense. The PSR provides that Mr. Mensah has been assessed the four-
level enhancement because “[a]ccording to the Statement of Facts, the defendant and his
conspirators recruited others to have PPP loan applications prepared in others’ names. The
defendant approached at least one person in a club to prepare a PPP loan application on their behalf.
The defendant also communicated with individuals over social media and text messaging about
preparing PPP loan applications.” PSR, q69. “Regarding the UI scheme, the defendant texted
Coconspirator-1 the PII of 20 individuals, whose names were used to obtain Way2Go cards that
were mailed to his mother’s address.” T70 (relying on 125 of the Statement of Facts). The PSR
cites similar evidence in qq71-72. It concludes that “the defendant.... was an organizer of a
criminal activity that involved five or more participants or was otherwise extensive pursuant to
USSG § 3BI.1(a).” T73.
Because T25 of the Statement of Facts was in error (later corrected by the government on
Jan. 23, 2024, and in its Objections to the PSR), it does not support the PSR’s recommended 4-
level role enhancement, contrary to T70 of the PSR. “While reviewing the texts for sentencing we
realized that the SOF should have read that Coconspirator-1 sent the defendant the PII of 20
individuals, including B. J., whose names were used to obtain Way2Go Cards that were mailed to
the Beechcliff address. Coconspirator- I also mentioned the Beechcliff address in the next chain.”
Jan. 23, 2024 email from AUS A Kathleen Robeson to David Smith.
The PSR also relies on a report of an interview that took place on Oct. 25, 2022 with a man
who allegedly approached Mr. Mensah in a “club” on U Street in D.C. to inquire how he made
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enough money to afford the gold medallion he was wearing around his neck. He was then assisted
by Mr. Mensatl in applying for a fraudulent PPP loan, so he could make some money. PSR, q69.
Counsel has read a slightly redacted copy of S/A Swanson’s report of that interview, which was
one of two interview reports provided by the government to the Probation Officer to assist her in
writing the PSR. This man (his name is redacted on the report) said that Mr. Mensah (known to
him by his nickname, Flex) charged him $6000 for his services, which corroborates Mr. Mensah’s
statement to the government that he charged individuals a fee of between $4000 and $6000 for
preparing the fraudulent PPP loan applications. See PSR, l69. Counsel has never had an
opportunity to interview this witness or to cross-examine him. More importantly , q69 of the PSR
mentions this man using the following language: “The defendant approached dr least one person
in a club to prepare a PPP loan application on their behalf.” (italics added). It is doubtful whether
Mr. Mensah even “approached” this one man since the report of interview clearly states that this
man approached Mr. Mensah in the club. Yes, when asked how he could afford to buy his gold
medallion, Mr. Mensah told him how to make easy money through a fraudulent PPP loan. But just
as a single swallow does not make it spring, the “recruitment” of one willing individual to engage
in PPP fraud does not make Mr. Mensah an “organizer” of the conspiracy. The PSR also refers, in
q72, to “[o]ne individual [who] stated that the defendant directed him to open a bank account and
send him (the defendant) the account and routing numbers” and advised him to transfer the loan to
another bank account and then withdraw it as cash. It doesn’t even state that Mr. Mensah
“recruited” that unnamed individual, who may be the same person mentioned in T69. Merely
telling a person how to commit a PPP fraud does not make one an “organizer” of the conspiracy
either. The PSR does not provide a factual basis to support a finding that Mr. Mensah “controlled”
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or “directed” the activities of others, which is what the law requires for a 4-level enhancement, as
discussed below
Moreover, the Plea Agreement binds the government not to recommend a 4-level role
enhancement and the government has honorably stood by its deal with Mr. Mensah. Accordingly,
the Court should not follow Probation’s recommendation.
2. Leader, Organizer or Manager
Factors distinguishing a leadership or organizational role from lesser roles include the
exercise of decision-making authority, the nature of the participation in the offense, recruitment of
accomplices, the claimed right to a larger share of the proceeds, the degree of participation in
planning or organizing the offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised. U.S.S.G. § 3BI.1, cmt. n. 4. Importantly, according to Fourth
Circuit law, a role adjustment can only be given under this section if the defendant had control
over others I
In United States v. Cameron, we recently explained that, in
assessing whether a defendant played an aggravating role in the
offense of conviction, the key inquiry is whether the defendant's role
was that of -an organizer or leader of people ,” as opposed to that of
a manager over the property, assets, or activities of a criminal
organization. 573 F.3d 179, 185 (4th Cir.2009); see also United
States v. Sa);les , 296 F.3d 219, 226 (4th Cir.2002) (emphasizing that
aggravating role adjustment is proper “only ... if it [was]
demonstrated that [the defendant] was an organizer, leader, manager
or supervisor of people”) . Thus, the aggravating role adjustment is
appropriate where the evidence demonstrates that the defendant
“controlled the activities of other participants” or “exercised
management responsibility.” United States v. Bartley, 230 F.3d 667,
674 (4th Cir.2000).
See United States v. Llamas , 599 F.3d 381, 390 (4th Cir. 2010) (emphasis added); see also United
State$ x Carter, 300 F.3d 415, 426 (4th Cir. 2002) and United States v Daraks han, Case No. 1 :21-
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cr-267-LO, discussed below, where despite the recommendation of a four-level enhancement by
both the government and the probation officer, the Court (Judge O’Grady) declined to impose the
role enhancement because the defendant did not exercise control over the other participants, even
if he played a larger role and at times gave instructions or direction. (Dkt. 21 at 9-10).
Here, the facts contained in the PSR do not establish that Mr. Mensah controlled the actions
of anyone else, let alone any criminally responsible participants. Indeed, the PSR only refers to
Mr. Mensah as playing an “organizer” role (q73) and does not provide a factual basis to support a
finding that Mr. Mensah controlled the activities of others, which is what the law requires. Rather,
it appears that Mr. Mensah did all the work on the PPP loan applications himself, without ordering
anyone else to play any role in that. It appears that the only role any other individual played was
to merely sign the application on behalf of their respective company or purported company and to
open bank accounts in which the proceeds of the fraud could be deposited. That makes Mr. Mensah
guilty of conspiracy to commit wire fraud, but not as a leader or organizer of others under §
3BI . 1 (a).
Moreover, the distribution of the proceeds of the loans demonstrates that when “others”
were involved, the “others” received a considerably larger share of funds than Mr. Mensah. There
is no evidence and no allegation that he himself made a large amount of money from the fraud
activity. See PSR, mI 19-122 (defendant has a negative net worth and does not have the means to
pay a fine). His “take” from the frauds–about $200,000–was vastly less than the loss amount
attributable to the entire conspiracy. Yet he will be saddled with a restitution order equal to the full
amount of the nearly $1.5 million loss amount.
B. Acceptance of Responsibility
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As noted in its sentencing memorandum, the government has asked this Court to grant Mr.
Mensah a three-level reduction for early acceptance of responsibility. Mr. Mensah asks this Court
to grant him the three-level reduction for acceptance based on the government’s recommendation
and in light of his overall cooperation since learning of the government’s investigation. He has
saved the government and the Court a lot of time and energy by pleading guilty early before he
was charged. Mr. Mensah met with the government to detail his involvement in the frauds prior
to pleading guilty and without any promises or understandings.
Throughout the entire duration of these proceedings, Mr. Mensah has not contested his guilt
or called into question the veracity of his admissions or the accuracy of the extensive Statement of
Facts. On the contrary, Mr. Mensah made a good faith effort to resolve all claims and has never
denied legal responsibility for his actions and those of his co-conspirators.
Probation denied him acceptance of responsibility for the reasons stated in l75 of the PSR
and on pages 31 to 33 of the final PSR, dealing with his objection to Probation’s denial of
acceptance of responsibility and quoting his factual response to the government’s April 22, 2024
letter to Probation. As this Court knows, he did not need to make any statement to Probation about
what he did and didn’t do and most defendants in our district simply tell Probation that the
defendant does not dispute anything in the Statement of Facts.
What happened here shows that the usual posture–electing not to discuss the offense
conduct at all–is the only safe course of action. Any attempt to relate the details of what the
defendant did and didn’t do in the conspiracy, beyond what is contained in the Statement of Facts,
may cost the defendant dearly. In this case, the Statement of Facts did not go into “who did what”
and Mr. Mensah sought to clarify “who did what.” T75.
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At his pre-plea meeting with the prosecutors and agents on August 29, 2023, at which
undersigned counsel was present, Mr. Mensah told them exactly the same thing that he told the
Probation OffIceI and he was not contradicted by the government at that time. No one accused him
of lying or threatened that he would not be credited with accepting responsibility. But his oral
explanation describing what he did and didn’t do was not included in the Statement of Facts drafted
by the government, which is why Mr. Mensah thought it was important to make Probation aware
of those same facts. He did not contradict the Statement of Facts, but even if he did, it was
unintentional and minor. He had been warned by his counsel to say nothing inconsistent with the
Statement of Facts and he promised that he would not do that.
C. Loss Amount
The goverrunent initially calculated the total loss amount at $ 1,490,860.91 . Plea Agreement
q9. It provided Probation with an updated loss amount and restitution amount on April 22, 2024.
PSR, q65, q68. The updated loss and restitution amounts are the same: $1,476,001–a reduction
of the original calculation. Thus, the parties agreed that “the total actual loss, for the PPP loan
fraud and unemployment insurance fraud, is between 8550,000 and §1,500,000.” Plea Agreement,
q32_ That placed the loss amount in Guideline category i 2B 1.1 (b)(1)(H), which added 14 offense
levels to the final offense level. PSR, q3 (quoting Plea Agreement, q4), PSR, q:79.
The Probation Officer calculated the total loss and intended loss at $1,535,378.11. PSR,
q79. That added 16 offense levels, 2 levels more than what the government agreed to recommend
to the Court in the Plea Agreement. The draft PSR did not dispute the accuracy of the government’s
calculation. But it added the value of some additional cashed stolen Treasury checks found in Mr.
Mensah’s apartment “and intended loss as to the stolen Treasury Checks that were located in the
defendant’s apartment, but not cashed or canceled (523,945.39).” PSR, Tq66-67.
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U,S.S.G. § 2B 1.1, Applic. Note 3(A) provides that “Subject to the exclusions in subdivision
(D), loss is the greater of actual loss or intended loss.” That has long been the law. See, e. g. , United
States v. Hughes , 396 F.3d 374, 382 (4th Cir. 2005)(applying what was then U.S.S.G. § 2FI.1,
comment. (n. 8)); United States v. Mallory , 709 F. Supp. 2d 455, 457 & n. 2 (E.D. Va. 2010)(same).
Accordingly, the intended loss of $23,945.39 with respect to the stolen Treasury checks that were
not cashed or cancelled cannot be counted because that intended loss is far, far less than the amount
of the actual loss determined by both the government and the Probation Officer. That small
difference is not a good enough reason for the Court to go with the higher arnount rather than the
one agreed to in the Plea Agreement, which the government still supports, as it must.
Federal courts, probably including all judges in the E.D.Va., normally resolve differences
between the plea agreement and the Probation Office in favor of the stipulated amount in the plea
agreement–even when there is a far larger difference between the loss amounts than here. Why
is that? Because it is obvious that the criminal justice system in our country could not survive in
its present size and cost to the tax payers if a large number of convictions were obtained only after
an expensive and time-consuming trial. Guilty pleas are essential to the viability of the entire
justice system, as the courts have candidly recognized. The vast majority of defendants plead guilty
because they can reasonably rely on the agreement they have negotiated with the prosecutor to be
honored and to largely determine the parameters of their sentence. If federal judges frequently
allowed Probation Officers to substitute their own guideline and sentencing recommendations for
those negotiated in the plea agreement, plea agreements would lose much of their value to the
government, defendants and defense attorneys. Far more cases would go to trial than today. This
case illustrates that consideration. Mr. Mensah would simply not have agreed to a guilty plea with
guidelines as sky-high as those recommended by the Probation Officer.
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Counsel addresses the factual bases of the convictions listed in qq92-93 of the PSR, in his
Objections letter to Probation on January 17, 2024, attached as Exhibit A.
II. 18 U.S.C. § 3553(a) FACTORS
In the post-Booker era, the sentencing court’s duty is to consider all of the factors identified
in 1 8 U.S.C. § 3553(a) and “impose a sentence sufficient, but not greater than necessary” to comply
with the four purposes of sentencing set forth in the statute. Pursuant to the statute, the sentence
imposed must: (1) reflect the seriousness of the offense, promote respect for the law, and provide
just punishment; (2) afford adequate deterrence to criminal conduct; (3) protect the public from
further crimes of the defendant; and (4) provide the defendant with needed training, medical care,
or other correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2). In addition,
§ 3553 requires the sentencing court to consider the following factors (in addition to the advisory
Guidelines range and any pertinent policy statements issued by the Sentencing Commission) in
imposing a sentence: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the kinds of sentences available; (3) the need to avoid
unwarranted sentence disparities among defendants with similar records who have been found
guilty of similar conduct; and (4) the need to provide restitution to any victim(s). 18 U.S.C. §
3553(a)(1 )-(7).
Under § 3553, the advisory Guideline range receives no presumption of reasonableness,
nor does any presumption ofunreasonableness attach to a sentence that varies from the Guideline
range. See GaII , 522 U.S. at 50; see also id. at 52 (“It has been uniform and constant in the federal
judicial tradition for the sentencing judge to consider every convicted person as an individual and
every case as a unique study in the human failings that sometimes mitigate, sometimes magnify,
the crime and the punishment to ensue.”) (quoting Koon v. United States , 518 U.S. 81, 98 (1996)).
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In the instant case, we submit that a sentence of no more than 24 months is appropriate after
consideration of all of the § 3553(a) sentencing factors. In particular, Mr. Mensah heavily relies
on a comparison of his relatively small size fraud with the PPP fraud of other defendants sentenced
by Your Honor and other judges in the Alexandria Division of the U.S. District Court for the
Eastern District of Virginia, below.
A. The Nature and Circumstances of the Offense
The nature and circumstances of Mr. Mensah’s offense are largely addressed in the offense
conduct portion of the PSR as well as in the Statement of Facts submitted at the time of Mr.
Mensah’s guilty plea. However, for the purposes of determining a proper punishment, the Court
should consider the additional information provided below - not to diminish Mr. Mensah’s
responsibility, but to provide the proper context within which this Court must determine the
approprrate sentence.
And while it does not excuse his criminal behavior, the Court should consider that Mr.
Mensah’s conduct did not occur in a vacuum. Indeed, the Small Business Administration itself
has estimated that it disbursed over 8200 billion in potentially fraudulent loans related to pandemic
relief – equating to a staggering 17 percent (at least) of all Covid-related EIDL and PPP loans. See
SBA Fraud Landscape Three Pager available at https://www.sba.gov/sites/sbagov/files/2023-
06/Fraud%20Landscape%200nePager%20June%202023 .pdf. As a result, on March 10, 2022, the
DOJ appointed an Associate Deputy Attorney General as Director for COVID-19 Fraud
Enforcement and reported prosecutions and civil enforcement proceedings that had already
resulted in the prosecution of thousands of defendants with alleged losses exceeding $2 billion and
investigations of fraud involving loans totaling more than 56 billion. See DOJ Press Release,
Justice Department Announces Director for COVID-19 Fraud Enforcement (March 10, 2022),
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available ar https://www.justice.gov/opa/pr/justice-department-announces-director-covid-19-
fraudenforcement
The recent and ongoing wave of PPP fraud prosecutions suggests that far too many
Americans took advantage of what appeared to be free money with little to no deliberation as to
their conduct or its consequences. It’s a sad picture.
B. History and Characteristics of the Defendant
While there is no doubt that he took advantage of available pandemic relief, there is also
no dispute that he grew up disadvantaged and in many ways “beat the odds” for many who grew
up as he did. He was raised in Alexandria by his single mother and his maternal grandmother,
immigrants from Ghana with very limited financial resources. 2 His father left his mother two
weeks after he was born. He lived with his mother and grandmother in Section 8 housing until
2005. PSR, mlo1-102. From age five to seven he physically abused by two of his maternal uncles.
He was “beat up and hospitalized on three occasions as a result of the abuse, as he suffered broken
bones and two shoulder dislocations.” He did not report the abuse to his mother until two years
ago. He “rolled with the punches.” “There was no male figure in my life, ever.” PSR, q103. He
continues to live with his mother in Alexandria. T105. Despite this humble beginning, he managed
to graduate from college with a B. A. degree in May 2014. Tl 11. He also has an IT Certificate in
Security Plus. I1 12. He has never married but has a two year old daughter, Imani Mensah, who
2 See United States v. Adelson, 441 F. Supp. 2d 506, 513-14 (S.D.N. Y. 2006) (“But, surely, if ever
a man is to receive credit for the good he has done, and his immediate misconduct assessed in the
context of his overall life hitherto, it should be at the moment of his sentencing, when his very
future hangs in the balance. This elementary principle of weighing the good with the bad, which
is basic to all the great religions, moral philosophies, and systems of justice, was plainly part of
what Congress had in mind when it directed courts to consider, as a necessary sentencing factor,
'the history and characteristics of the defendant.’”).
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resides with her mother (Isa Lehn) in Woodbridge, VA. He visits with her three times a week and
has a good relationship with the girl’s mother. He notes that they are both good parents. Sl 04.
Among the history and characteristics this Court should consider, is Mr. Mensah’s poor
health. He has a heart murmur and has been hospitalized five to seven times due to bronchitis
and/or asthma related illnesses. His last hospitalization was in 2019 when he was diagnosed with
spondylolysis, which has affected his L4 and L5 vertebral discs. He suffers from chronic back pain
due to that condition, which he believes was caused by playing sports. He also suffers from leg
and ankle pain from a dislocated ankle in 2019. T107.
Mr. Mensah was a self-employed hip-hop artist from 2016- March 2022. He has performed
publicly on at least 10 different occasions, typically earning §2000 to $5000 per performance.
I1 15. He was also a remote IT employee for Kairos Vision Consulting, based in Hartford, CT from
2019 to March 2022. Kairos report that they have no employment records for him. ql 14. But he
has informed counsel that he was paid “off the books” in cash by Kairos and he believes that is
why Kairos said it had no records of his employment. He has also helped out in his mother’s
African clothing store (Nana Bour Boutique) in Alexandria “whenever she has needed him.” ql 16.
He now has a negative net worth and cannot pay a fine. T122. He is unable to keep up with his
legal fees and other debts.
C. The Need for the Sentence Imposed to Reflect the Seriousness of the Offense, to
Promote Respect for the Law, and to Provide Just Punishment for the Offense
Mr. Mensah acknowledges that he has committed a serious criminal offense and must suffer
the consequences of his actions. The requested sentence sufficiently accounts for this important
sentencing consideration. For the reasons outlined in the disparity analysis below, a sentence no
more than 24 months would provide just punishment for Mr. Mensah’s offense as balanced against
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other sentences recently imposed in similar cases in the Alexandria Division and when balanced
against all of the factors this Court must consider.
D. Afford Adequate Deterrence to Criminal Conduct and Protect the Public from
Future Crimes of the Defendant
Although general deterrence remains a required consideration under § 3553(a), there is
little evidence to support a finding that harsh sentences deter future criminal conduct. The unique
combination of motivation and circumstance that lead otherwise law-abiding citizens to risk
imprisonment are not so easily overcome by the simple imposition of lengthy sentences. While
such a theory might be appealing on its face, the reality is that that there is little to no difference
in the deterrent effect between probation and imprisonment. See Francis T. Cullen er al . , Prisons
Do Not Reduce Recidi\?ism: The High Cost of Ignoring ScIence, 91 PRISON J. 48S, 50S-5 IS (2011 )
(according to “the best available evidence...prisons do not reduce recidivism more than
noncustodial sanctions”); Michael Tonry, Purposes and Functions of Sentencing, 34 Crime & Just.
1, 28 (2006) (“increases in severity of punishments do not yield significant (if any)
marginal deterrent effects.”). Indeed, available research suggests that the certainty of being caught
and punished carries far greater deterrent effect than the severity of the punishment. See id. (“Three
National Academy of Science panels.. .reached that conclusion, as has every major survey of the
evidence.”).3 Moreover, there is a moral limit on the extent to which the need for general deterrence
3 See a/so David Weisburd et al ., SpecifIC Deterrence in a Sample of Offenders Convicted of White
Collar Crimes , 33 CRIMINOLOGY 587 (1995); see also Zvi D. Gat)bay, Exploring the Liwlit s of
the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8 CARDOZO ].
CONFLICT RESOL. 421, 448-49 (2007) (“[T]here is no decisive evidence to support the
conclusion that harsh sentences actually have a general and specific deterrent effect on potential
white-collar offenders.”); see also Symposium, U.S.S.C., Federal Sentencing Policy for Economic
Crimes and New Technology Offenses, Plenary Session I, “What Social Science Can Contribute
to Sentencing Policy for Economic Crimes,” at 22 (Oct. 12, 2000) (“One consistent finding in the
deterrent literature is that the certainty rather than the severity of punishment seems to be the most
effective deterrent .”), available at http://www.ussc.gov/sites/default/files/pdf/research-
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can or should be heaped on the shoulders of one person. See United States v. Meyers , 353 F. Supp.
2d 1026, 1029 n. 1 (S.D. Iowa 2005) (“. . .the weight of society’s need to send a message to potential
wrongdoers can only be borne to a limited extent by one individual.”); see a[so Paul H. Robinson,
Distributive Principles of Criminal law, at 223 (2008) (noting potential ethical objection to
overemphasis on general deterrence, which “relies on treating the person being punished as a mere
instrument by which to influence the conduct of others”).
Nevertheless, the sentence proposed in this case will serve as an appropriate deterrent for
those who would consider engaging in fraudulent conduct similar to that of Mr. Mensah.
E. The Need to Avoid Unwarranted Sentencing Disparity
Sentences imposed in this district for recent PPP and unemployment fraud cases
demonstrate that imposition of a sentence of nor more than 24 months will avoid unwarranted
sentencing disparity. They also highlight the arbitrary and inconsistent application of various
Guidelines enhancements. Most notable perhaps, on both points, is the recent case of United States
v. euin Ngoc Rudirr (Case No. 1 :22-cr-00046AJT). According to the Government’s sentencing
memorandum, Rudin was released from prison in 2018 after having served five years “for a
massive fraud scheme” that resulted in a restitution judgment of $39 ,943 ,267. 71. (Dkt. 54 at 1).
While on supervised release for his previous fraud conviction, “the defendant almost immediately
embarked on another.” Id. First, the defendant, through his company, Mana Tax, “assisted in the
preparation and filing of false tax returns on behalf of a number of professional athletes that
reported fabricated business losses and other false items to support large tax refund claims from
the IRS to which the athletes were not entitled.” Id. at 2. The defendant’s actions resulted in over
andpublications/research-projects-and-surveys/economic-
crimes/20001 01 2symposium/cPlenaryI.pdf
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$19,000,000 in loss to the government and Rudin collected for himself 30% of the illegal refunds
that were obtained as part of the conspiracy. Id. at 4-5. In addition, through the use of Mana Tax,
Rudin also assisted clients in the filing of approximately 80 fraudulent PPP loan applications that
resulted in a loss amount of $43 ,810,330, and to which he was also entitled to 30% of the proceeds.
Id
Despite the fact that Rudin decided how to prepare the tax returns supervised others
including his own family members, recruited small business owners for the PPP fraud, and
instructed others on how to prepare and file the loan applications, the government agreed to a 3
level role enhancement rather than the 4-level enhancement recommended by the PSR. Id. at 810.
Remarkably, neither the government nor the probation office sought a 2-level increase for the use
of sophisticated means even though the evidence overwhelmingly supported the enhancement.
Rudin had a criminal history category Ill. Despite the fact he caused a combined loss in
excess of $60,000,000, the Guidelines agreed to by the parties recommended a sentence of 108
135 months. The disputed Guidelines as calculated by the probation office
(151-188 months) were not much higher than what the probation office has recommended in Mr.
Mensah’s case_ Ru(lin was ultimately sentenced to two consecutive 60-month terms of
imprisonment. (Dkt. 63).
Perhaps no comparison better illustrates the limitations of the Sentencing Guidelines than
that between Ru(lin’s case and Mr. Mensah’s. Rudin’s offense conduct was unquestionably more
widespread, serious, harmful, and began almost immediately after his release from a five-year
sentence on fraud charges. Yet he faced an agreed Guidelines range of only 108-135 months. Mr.
Mensah’s conduct involved a loss amount only about 1/60th that of Rudin’s and he received far,
far less money for his part in the conspiracy–-only about §200,000. He barely has a Criminal
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History of II, based on old minor offenses. Despite those dramatic differences, the Probation
Office has recommended a Guidelines range that tops out at 151 months, 16 months higher than
the top of the Guideline range the government agreed to in Rudin, and 31 months higher than the
120 month sentence Ru(lin received from Judge Trenga.
No reasonable person comparing Mr. Mensah’s and Rudin’s cases could justify the position
that they should be sentenced similarly. Or that their Guideline range should be similar.
In another recent case, United States v Jaafar , Case No. 1:20-cr-00185-CMH, the
defendant and his wife filed 18 fraudulent PPP loan applications despite not owning any active or
operating businesses. (Dkt. 60 at 6). Upon being informed that they were the targets of a criminal
investigation, the defendant and his wife attempted to flee the country (after having previously met
with prosecutors) and were arrested at John F. Kennedy airport in possession of multiple passports,
18 bags, 14 cell phones, and $49,875.65 in cash. Id. at 4. Highlighting again the arbitrary
application of the Guidelines, neither defendant received an obstruction of justice enhancement
despite being caught attempting to flee prosecution, and thereby justice, entirely. Based on an
intended loss of 56.6 million, the Guidelines recommended a sentence of 24-30 months and Jaafar
was sentenced by Judge Hilton to only 12 months of incarceration. (Dkt. 67). The loss attributable
to Mr. Mensah is far lower in this case but he is facing Guidelines far higher than Jaafar did.
Other cases in this District lend support for Mr. Mensah’s recommendation for a sentence
of not more than 24 months . In United States v. Kindambu, Case No. 1:20-cr-260-mA, the
defendant obtained over 52.5 million in completely fraudulent PPP loan proceeds and spent the
funds on illegitimate expenditures including his personal taxes, a luxury vehicle, a Cessna aircraft,
and a beautiful luxury residence, a photo of which is attached as Exh. 1 to the Position of the United
States, Doc. 55. The PSR recommended a Guidelines sentencing range of only 41-51 months and
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Your Honor sentenced him to serve 33 months of incarceration. (Dkt. 64). The amount of proceeds
Mr. Mensah personally obtained from his fraud–around $200,000--is a tiny fraction of the $2.5
million Kindambu and his wife, Rose-Marie Nsahlai, stole through PPP fraud. Mr. Mensah did not
use his proceeds to buy any house, even an inexpensive one. He still lives with his mother.
Moreover, the government took back around half ofMensah’s $200,000 in profit through seizures
of his property before his guilty plea. And he is nor opposing a large restitution order for the full
amount of the losses in the entire conspiracy, which will hang over him for the rest of his life,
including a requirement that he shall pay 25% of his net income each month toward restitution
beginning 60 days after his release–the maximum percentage permitted by statute.
Your Honor also sentenced Mr. Kindambu’s wife, Rose-Marie Nsahlai, to 24 months . Her
guideline range was 97-121 months and she wear to trial , unlike Mensah, who pled guilty before
he was charged by the government. The government observed that Nsahlai “does not appear to
have been facing any significant crisis or other desperate circumstances....She appears to have had
ample resources, including a home in Ashburn, a vacation home in Virginia Beach, and a well-
paying senior-level job in cybersecurity with the federal government. She simply chose to commit
this crime because she believed she could get away with it, and because she wanted to live a life
of considerable luxury.” Position of the United States With Respect to Sentencing in U.S. v. Rose-
Marie Nsahlai, No. 1 :21-CR-234-RDA (Doc. 160, filed Sept. 20, 2023).
By contrast, Mr. Mensah made about $200,000 from his criminal activity. But about half
of that amount was seized from his home for forfeiture ($82,000 in cash was seized from his safe
in Tysons and the government also seized miscellaneous expensive jewelry items belonging to
Mensah). Unlike Rose-Marie Nsahlai, who went to trial for no good reason, he pled guilty before
he was indicted. He never even thought about going to trial. Why should Mr. Mensah get a longer
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sentence than Ms. Nsahlai’s 24 months? if anything, Mensah’s sentence should be shorter than
Ms. Nsahlai’s 24 months.
In United States v. Day akshan, Case No. 1:21-cr-267-LO, the defendant and his family
members filed 63 loan applications on behalf of 14 different entities and obtained over $3,000,000
in fraudulent loan proceeds. Neither the government nor the Probation Office recommended an
enhancement for the use of sophisticated means. And, despite the fact that the defendant appeared
to be the head of a criminal enterprise involving more than 5 participants, and despite the
recommendation of a four-level enhancement by both the government and the probation officer,
the Court declined to impose the role enhancement because the defendant did not “exercise
control” over the other participants, even if he played a larger role and at times gave instructions
or direction. (Dkt. 21 at 9-10). As a result, Judge O’Grady found a total offense level of 21 as
opposed to the recommended level of 25. (Dkts. 14, 15, and 19). As calculated, the Guidelines
recommended a range of 37-46 months and the defendant was ultimately sentenced to serve 33
months of incarceration.
Bennie Earl Magee was sentenced to serve 60 months by Judge Hilton in a case involving
$7 million in fraudulent PPP and EIDL loans. Defendant Magee created false payroll statements,
forget IRS business tax returns and false business reports. The PSR’s recommended Guideline
range in his case was 168-210 months, far above the sentence he received. He did not cooperate
with the government. US. v, Magee, Case No. 1:23-cr-00091-CMH.
A 28 year old Chicago rapper known as G Herbo, whose real name is Herbert Wright III,
pled guilty in Springfield, Massachusetts federal court to conspiracy to commit wire fraud and
making false statements; prosecutors dismissed several counts of aggravated identity theft. The
government said the conspiracy was a $1.5 million scheme that involved several other people_ He
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“used stolen credit card information to pay for an opulent lifestyle including private jets and
designer puppies.” “’On social media, Mr. Wright boasted an extravagant lifestyle. He gave the
impression that his use of private jets, luxury cars and tropical villas were the legitimate fruits of
is booming rap career as G Herbo. However, his lavish lifestyle was shamelessly built on deceit
and fraud using stolen account information that inflicted substantial harm on numerous businesses,
leaving a wake of victims burdened with financial losses.’” Prosecutors asked the district court to
impose a sentence of only a year and a day. But the court imposed a “no jail” sentence of three
years’ probation instead. Michael Casey, Rapper G Herbo sentenced to probation in fraud plot ro
fund lavish lifestyle , ABC News, Jan. 11, 2024. Undersigned counsel would hardly recommend
that sentence but it is his duty to bring instances of sentencing lenity for similar offenses to the
court’s attention.
Mr. Mensah respectfully submits that the foregoing sentences imposed on defendants guilty
of committing PPP loan fraud (or in G Herbo ’s case stolen credit card fraud) support the requested
sentence of a no/ more than 24 months . Imposition of a longer prison sentence than 24 months will
create unwarranted disparity and run contrary to the spirit and intent of 18 U.S.C. § 3553(a).
WHEREFORE, based on the foregoing reasons and any others that may appear to the Court
or that may develop at the sentencing hearing, Mr. Mensah respectfully requests that this
Honorable Court sentence him to not more than 24 months of incarceration and 2 or 3 years of
supervised release. He asks the Court to recommend to the BoP that Mr. Mensah be designated to
serve his time at (1) FCI Cumberland, at the minimum-security satellite camp, which is closest to
his home, or if that camp is not available, then (2) the minimum security camp at Hazleton, WV.
If neither of those facilities is available, then (3) the minimum security camp at FCI Morgantown,
WV. He also requests that the Court afford him the privilege of voluntarily surrendering at the
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prison gate at the time directed by the U.S. Marshals Service. He has obeyed all of his release
conditions over an extended period of time.
Respectfully submitted,
/s/ David B. Smith
DAVID B. SMITH
VA Bar No. 25930
David B. Smith, PLLC=
108 North Alfred Street, 1 st FL
Alexandria, Virginia 223 14
703-548-8911 / fax 703-548-8935
dbs@davidbsmithpllc.com
Counsel for George Mensah, Jr.
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Certificate of Service
I hereby certify that on the first day of May, 2024, 1 electronically filed the foregoing
Position on Sentencing and exhibits with the Clerk of Court using the CM/ECF system, which will
send a notification of such filing (NEF) to the following CM/ECF user(s) :
AUS A Ezra Spiro [ezra.spiro@usdoj .gov]
AUS A Kathleen Robeson [kathleen.robeson@usdoj .gov]
AUSA Kimberly Morgan Shartar [kimberly.m.shartar@usdoj .gov]
Office of the United States Attorney
2100 Jamieson Avenue
Alexandria, VA 223 14
And I hereby certify that I have mailed the document by United States mail, first class
postage prepaid, to the following non-CM/ECF participant(s), addressed as follows: [none] .
/s/ David B. Smith
DAVID B. SMITH
VA Bar No. 25930
David B. Smith, PLLC
108 North Alfred Street. 1 st FL
Alexandria, Virginia 223 14
703-548-8911 / fax 703-548-8935
dbs@davidbsmithpllc.com
Counsel for George Mensa}I, Jr.
23
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