Sentencing Memorandum — USA v. Philossaint et al (Dkt. 306, S.D. Fla.)
Summary
Defendant Philossaint's sentencing memorandum and motion for variance, entered June 21, 2023 as Document 306 in United States v. Philossaint, Case No. 22-CR-80144-RS, in the U.S. District Court for the Southern District of Florida. It argues that the loss table in Section 2B1.1 of the economic crime guideline recommends a disproportionate sentence, and it states that the government urges a sentence of over 10 years. The memorandum asks for a two-level reduction under the new Guidelines amendment § 4C1.1 for zero-point offenders, effective November 1, 2023, and cites potential future deportation as a collateral consequence. It asks for a sentence well below the government's recommended guideline range of 121-151 months, and the signature block names Scott W. Sakin as counsel.
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“Sentencing Memorandum — USA v. Philossaint et al (Dkt. 306, S.D. Fla.).”
Original at ecf.flsd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/sentencing-memorandum-usa-v-philossaint-et-al-dkt-306-s-d-fla-e0f8c6e311/
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Case 9:22-cr-80144-RS Document 306 Entered on FLSD Docket 06/21/2023 Page 1 of 16
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 22-CR-80144-RS
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOFF STENN WROY PHILOSSAINT,
Defendant.
__________________________________/
DEFENDANT PHILOSSAINT’S SENTENCING MEMORANDUM AND
MOTION FOR VARIANCE
Defendant, JOFF STEN WROY PHILOSSAINT, through counsel, files this
Motion for a Sentence Variance and sets forth other sentencing factors, pursuant to
18 U.S.C. § 3553(a) as follows:
Pursuant to Title 18, United States Code, § 3533(a), the court shall impose a
sentence sufficient, but not greater than necessary, to comply with the purpose set
forth in § 3553(a)(2).
1
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I. The Economic Crime Guideline, Section 2B1.11 Recommends a
Disproportionate and Draconian Sentence for Joff Philossaint,
a Non-Violent, First-Time Offender
The economic crime guideline is driven primarily by Section 2B1.1’s current
loss table, which has an outsized role in determining the length of Joff’s sentence.
The sentencing calculation for federal economic crimes includes an enhancement
under Section 2B1.1’s economic loss table based upon a very broad vision of loss.
The calculations in this loss table are extraordinarily important because the
magnitude of the enhancement will drive the severity of the sentence in Joff’s case.
The Sentencing Commission has substantially increased penalties for
economic crimes to often extreme levels.2 With respect to fraud type crimes, the
Sentencing Commission has deviated from its standard practice of anchoring
recommended sentencing ranges in empirical data.3 Additionally, the series of
sentencing guideline amendments has resulted in a loss table today that recommends
sentences for economic crimes that are orders of magnitude greater than the same
1
Although Defendant’s sentence is determined pursuant to USSG § 2S1.1, that
guideline refers to the underlying fraud guideline, USSG § 2B1.1.
2
Mark W. Bennett et al., Judging Federal White-Collar Fraud Sentencing: An
Empirical Study Revealing the Need for Further Reform, 102 IOWA L. Rev. 939, 950
n.48 (2017)
3
James E. Felman, The Need to Reform the Federal Sentencing Guidelines for High-
Loss Economic Crimes, 23 FED. SENT’G REP. 138, 138 (2010); U.S. SENT’G
GUIDELINES MANUAL ch. 1, pt. A (U.S. SENT’G COMM’N 2009) (recognizing
that while the Commission generally anchored its Guidelines in empirical data, it
departed from the empirical data in crafting guidelines for economic crimes).
2
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sentence for the same crime back in the mid-1980s.4 For example, as Judge Rakoff
explains, while a typical fraud in 1987 would have produced a guideline range of
30–37 months, by 2003, that same case would result in a recommended sentence of
151–188 months, an increase of more than 500 percent.5 Because of the
Commission’s “preoccupation and reliance with ‘quantifiable offense
characteristics’ the guidelines short shrift both mitigating and aggravating factors
relative to culpability and harm.”6 The current loss table is likewise a poor indicator
for relative culpability in Joff’s case. The loss calculation fails to account for the
extent to which Joff personally profited from the offense.
The Government suggests Joff is responsible for the total reasonably
foreseeable loss attributable to all co-conspirators/co-defendants, regardless of how
much each conspirator personally profited from that amount. The Government urges
the Court to sentence Joff to over 10 years’ imprisonment, a draconian sentence.
(DE: 304). Accordingly, the current loss table, which is often the determining factor
in an economic crime offender’s sentence, has an outsized role in influencing such
sentences.
4
See Bennett et al., supra at 951-53; Felman supra at 138.
5
United States v. Gupta, 904 F. Supp. 2d 349, 351 (S.D.N.Y. 2012), aff'd, 747 F.3d
111 (2d Cir. 2014).
6
Bennett et al., supra at 957.
3
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Section 2B1.1 is routinely not followed. The U.S. Sentencing Commission
Interactive Data Analyzer shows that judges are more likely to vary below the
Guideline range in Section 2B1.1 cases compared to the average federal criminal
case. For example, Federal judges, on average, tend to grant non-government
sponsored downward variances to first time (Category I) offenders in approximately
24 percent of all cases. In contrast, in sentencing first-time (Category I) offenders
under Section 2B1.1, federal judges, on average, grant non-government sponsored
downward variances in approximately 31 percent of cases.7
Indeed, sentencing courts depart or vary below the Guidelines in the majority
of cases to which Section 2B1.1’s loss enhancement applies. In 2022, utilizing the
Interactive Data Analyzer, more than 60 percent of sentences issued to Category I
fraud offenders were below the Guideline Range. Moreover, during the 2018-2022
fiscal years, out of 51 defendants whose primary guideline was USSG § 2B1.1, with
a Final Offense Level of 35, a Criminal History Category of I, a guideline range of
168 to 210 months,8 and excluding anyone who received a reduction for substantial
assistance pursuant to USSG §5K1.1, the median length of imprisonment imposed
7
Interactive Data Analyzer, U.S. SENT’G COMM’N, https://ida.ussc.gov. This data
is from 2015 through 2022.
8
Defendant disputes the offense level of 35 and resulting guideline range that
probation calculated in Defendant’s Presentence Investigation Report. (DE: 281).
4
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was 96 months. See U.S. Sentencing Commission’s Judiciary Sentencing
Information (“JSIN”).
Courts have resisted a rigid application of the sentencing guidelines, including
application of the “amount of loss” enhancement. One district court for example,
stated:
What drove the Government’s calculation in this case, more than any
other single factor, was the inordinate emphasis that the Sentencing
Guidelines place in fraud cases on the amount of actual or intended
financial loss. As many have noted, the Sentencing Guidelines, because
of their arithmetic approach and also in an effort to appear “objective,”
tend to place great weight on putatively measurable quantities, such as
weight of drugs in narcotic cases or the amount of financial loss in fraud
cases, without, however, explaining why it is appropriate to accord such
huge weight to such factors.
United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y 2006), aff’d 301 F.
App’x 93 (2d Cir. 2008).
The loss enhancement under USSG § 2B1.1 results in a draconian sentence
for Joff Philossaint, a non-violent, first-time offender.
II. Request for Variance
History and Characteristics of the Defendant
The evidence in this case reveals a man who has engaged in behavior that was
totally uncharacteristic. Before his involvement in this offense, Mr. Philossaint’s life
was defined by hard work and dedication to his family and community.
5
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Joff Philossaint was born on March 15, 1990, in Port-de-Paix, Haiti. (PSI ¶
118). He received his bachelor’s in public administration from the University of
Port-au-Prince. (PSI ¶ 138). In 2016, at age 26, Joff immigrated to the United States.
(PSI ¶ 125). Joff first worked at a Dania Beach Casino in security and engineering.
He later became a driver for Uber. Joff then began working for various companies
and became involved in the instant charges. In 2021, Joff became a naturalized U.S.
citizen. (PSI ¶ 21).
Joff’s cousin, Louineze Mertil, attests to the hard-working nature of Joff:
Upon his arrival to this [sic] United States his work ethic was evident.
He did not waste any time working to build a life for himself and for
his family. He immediately learned how to drive. He immediately
started looking for a job, His drive was rooted in his desire to not only
make a living for his children but for his family back in Haiti, mother,
siblings and other family members.
See Exhibit “1” – Letter from Louineze Mertil, (attached hereto).
Joff has always supported his two sons, Jay, age 5, and Jeremiah, age 3. (PSI
¶ 121). Defendant has another son, Giovany, who resides in Haiti with the son’s
mother. (PSI ¶ 122). Prior to his incarceration for the instant case, Joff provided
voluntary child support for his three children in varying amounts. (PSI ¶ ¶ 121, 122).
Joff is especially helpful to his ex-wife, Ferlinda, who unfortunately is very sick. In
a letter to the Court, Ferlinda describes the significant role Joff has played in
providing care to their two young children, as well as his assistance to her while
battling a fatal prognosis:
6
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Presently, I'm faced with a debilitating disease called Lupus. My lungs
are slowly deteriorating. In the coming weeks, my doctor plans to add
my name to the organ donation waiting list. I have no other aid to
support myself or my children in his absence. I'm overwhelmed and my
abilities are limited.
Mr. Joff Philossaint is the primary provider and caretaker of our two
sons. Throughout our relationship, he’s been a responsible father and
caregiver. Mr. Philossaint is a warm-hearted, nurturing, and loving
father. In my children's eyes, he's their hero, mentor, and role model.
See Exhibit “2” – Letter from Ferlinda Mertil Philossaint, (attached hereto). Morgan
Carbajal, Ferlinda’s doctor, emphasizes the uncertain term of assistance necessary
for Ferlinda:
Ms. Philossaint is a patient under my care due to an advanced, life
threatening chronic lung condition that renders her disabled and
oxygen-dependent….As her condition is progressive and likely
terminal without an extreme intervention such as [a] lung transplant, I
believe her need for assistance will be indefinite.
See Exhibit “3” – Letter from Morgan Paloma Carbajal, M.D., (attached hereto).
Joff’s inherent nature as a provider is further illuminated with regard to his mother,
Lamerice Philossaint:
I am a person who suffer with an underline [sic] condition of High
Blood Pressure/diabetes…Joff is my main support system. He makes
sure my doctor visits is taking [sic] care of and my medicine are getting
paid. Without Joff being around its becoming a little difficult. I’m not
able to go to the doctor like I should to maintain my illness.
See Exhibit “4” – Letter from Lamerice Philossaint, (attached hereto).
7
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Gerta Telfort-Morency, a friend of Joff’s, recounts Joff’s valuable
contributions not just towards her children, but also the Haitian-American
community:
We met over 6 years ago. I can attest to his respectfulness, kindness,
and incredible work ethic. He…has made exceptional contributions to
his community in the United States.
He volunteered his time to tutor my children in math and French and
was always ready to help a fellow Haitian to adjust in the USA with
jobs, translating English/Creole and work skills.
See Exhibit “5” – Letter from Gerta Telfort-Morency, (attached hereto).
Joff’s character, life history and circumstances support a downward variance
well below the current guideline range set forth in the PSI.
Request for Two-Level Variance Based on New Guideline Amendment, § 4C1.1
Joff Philossaint is a first-time, non-violent offender. Defendant urges the
Court to consider his lack of a criminal history, and to reduce his sentencing
guidelines by two levels pursuant to an amendment to the Guidelines set to become
effective November 1, 2023.
On April 5, 2023 the Sentencing Commission met and voted to promulgate
the Proposed Amendments to the United States Sentencing Guidelines. Many of the
Proposed Amendments are in response to the Congressional Directive to the
Sentencing Commission which seeks to limit long periods of incarceration only to
8
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violent offenders and offenders of very serious crimes. United States Sentencing
Commission Chairman, Carlton W. Reeves in his opening remarks explained that
many of the Amendments promulgated by the Sentencing Commission were being
proposed in order to “give judges more discretion to expand non-carceral options to
more people.”9
Chairman Reeve’s remarks are in keeping with the trajectory that began with
the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and
followed by Kimbrough v. United States, 128 S. Ct. 558 (2007), Rita v. United States,
127 S. Ct. 2546 (2207), and Gall v. United States, 128 S. Ct. 586 (2007). A trajectory
which for the past eighteen years has resulted in imposing lower sentences for non-
violent, first-time offenders with a particular emphasis on individualized sentencing.
Thus, while the Guidelines remain “the starting point and the initial benchmark” in
determining a sentence, this Court “may not presume that the Guidelines range is
reasonable,” but must “make an individualized assessment based on the facts
presented.” Gall, supra at 596-598.
One of the most recent examples of the Sentencing Commission’s
commitment to the trajectory that began post-Booker, has come in the form of the
proposed amendment to the Advisory Guidelines. Of particular note is the proposed
9
https://www.ussc.gov/sites/default/files/pdf /amendment-process/public-hearings-
and-meetings/ 20230405/20230405_remarks.pdf (page 18-19).
9
Case 9:22-cr-80144-RS Document 306 Entered on FLSD Docket 06/21/2023 Page 10 of 16
Amendment which creates a new section under “Chapter Four - Criminal History
and Criminal Livelihood” entitled: § 4C1.1 Adjustment for Certain Zero-Point
Offenders. This new provision calls for a two-point decrease from the total base
offense level of the applicable Guidelines.
Mr. Philossaint meets all ten criteria set out in USSG § 4C1.1:
a) Joff has not received any criminal history points (PSI ¶ 112);
b) Joff has not received an adjustment under § 3A1.4 (Terrorism);
c) Joff did not use any violence or credible threats of violence in connection
with the offense;
d) The offense did not result in death or serious bodily injury;
e) The instant offense is not a sex offense;
f) Joff did not personally cause financial hardship;
g) Joff did not possess, receive, purchase, transport, transfer, sell, or
otherwise dispose of a firearm or other dangerous weapon (or induce
another participant to do so) in connection with the offense;
h) The instant offense of conviction is not covered under § 2H1.1 (Offenses
involving individual rights);
i) Joff did not receive an adjustment under § 3A1.1 (Hate Crime Motivation
or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and
10
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j) Joff did not receive an adjustment under § 3B1.110 (Aggravating Role) and
was not engaged in a continuing criminal enterprise, as defined in 21
U.S.C. § 848.1.
Several judges in the Southern District of Florida have already applied the
two-level reduction for “zero point” offenders, notwithstanding the effective date of
the amendment is not for another few months. See United States v. Christian
Encarnacion, 22-20422-DMM; United States v Robles, 22-20494- RNS; United
States v. Saomi Tatiana Mera-Palomino, 22-20501-BB; and United States v. Yohan
del Pozo Hernandez, 22-cr-20429-RNS. Accordingly, Joff should likewise receive
a two-level reduction at his upcoming sentencing.
Collateral Consequences Support a Variance
Joff’s potential future deportation is a collateral consequence that a sentencing
court may consider under 18 U.S.C. § 3553(a). United States v. Hercules, 947 F.3d
3, 5 (1st Cir. 2020). The Government chose to prosecute Joff on Count 4 – acquiring
naturalized U.S. citizenship by fraud – with the goal of Joff facing deportation upon
completing his sentence. The consequences of very likely deportation are
insurmountable. Joff’s two children, Jay and Jeremiah, will have no choice but to be
10
Defendant objects to any aggravating role adjustment applied in Defendant’s PSI
report. (DE: 281).
11
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raised without their father, who has been a critical, stable figure in their young lives.
There will also be detrimental consequences for the health of Joff’s ex-wife,
Ferlinda, and mother, Lamerice, for whom Joff has been a primary caregiver. See
United States v. Leon, 341 F.3d 928 (9th Cir. 2003) (Defendant’s indispensable role
in caring for wife who recently had her kidney removed due to renal cancer
constituted sufficient extraordinary family circumstances to warrant downward
departure of six levels). Further, Joff’s livelihood will be in danger if sent back to
Haiti.
Haiti remains at a Level 4, Do Not Travel, travel advisory with the U.S.
Department of State. Haiti Travel Advisory, U.S. Dep’t of State, available at
https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/haiti-
travel-advisory.html (last visited June 12, 2023). This is “due to kidnapping, crime,
civil unrest, and poor health infrastructure.” Id. The State Department warns:
Kidnapping is widespread, and victims regularly include U.S. citizens.
Kidnappers may use sophisticated planning or take advantage of
unplanned opportunities, and even convoys have been attacked.
Kidnapping cases often involve ransom negotiations and U.S. citizen
victims have been physically harmed during kidnappings. Victim’s
families have paid thousands of dollars to rescue their family members.
Violent crime, such as armed robbery, carjackings, and kidnappings for
ransom that include American citizens are common. Mob killings
against presumed criminals have been on the rise since late April.
Travelers are sometimes followed and violently attacked and robbed
shortly after leaving the Port-au-Prince international airport. Robbers
and carjackers also attack private vehicles stuck in heavy traffic
congestion and often target lone drivers, particularly women. As a
12
Case 9:22-cr-80144-RS Document 306 Entered on FLSD Docket 06/21/2023 Page 13 of 16
result, the U.S. Embassy requires its personnel to use official
transportation to and from the airport.
Protests, demonstrations, tire burning, and roadblocks are frequent,
unpredictable, and can turn violent. The U.S. government is extremely
limited in its ability to provide emergency services to U.S. citizens in
Haiti – assistance on site is available only from local authorities
(Haitian National Police and ambulance services). Local police
generally lack the resources to respond effectively to serious criminal
incidents. Shortages of gasoline, electricity, medicine, and medical
supplies continue throughout much of Haiti. Public and private medical
clinics and hospitals often lack qualified medical staff and even basic
medical equipment and resources.
Id. The government is plagued with corruption and police have not been able to
control gang violence. The U.S. State Department has explained:
The government rarely took steps to identify, prosecute, and punish
government and law enforcement officials who committed abuses or
engaged in corruption, and civil society groups alleged widespread
impunity regarding these acts.
Gang violence continued at high rates in the Port-au-Prince
metropolitan area. Some gangs allegedly received support from
political and economic elites. Kidnappings for ransom by armed gangs
increased and affected all parts of society. Armed gangs were also
responsible for armed conflicts resulting in killings, brutal attacks on
citizens, targeted instances of sexual violence, mutilation of human
remains, widespread displacement, and the destruction of homes and
property.
2022 Country Report on Human Rights Practices: Haiti, U.S. Dep’t of State,
available at https://www.ecoi.net/en/document/2089114.html (last visited June 12,
2023).
13
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Because Joff will likely face deportation, he will be ineligible to serve the last
part of his prison term in the community confinement reentry program, or to benefit
from the First Step Act, which would enable Joff to earn additional time credits. The
unavailability of these options has the effect of making the affected prison term more
severe for foreign nationals, and, in Joff’s case, revoked citizenship. See United
States v. Thomas, 999 F.3d 723, 736 (D.C. Cir. 2021).
The Need for the Sentence to Reflect the Seriousness of the Offense, Promote
Respect for the Law and Provide Just Punishment
The Probation Officer calculates a total offense level of 35 and a guideline
imprisonment range of 168-210 months for Defendant. (DE: 295-1). The
Government, on the other hand, recommends Joff be sentenced to a term of
incarceration in the range of 121-151 months, with a total offense level of 32. (DE:
304). The recommended sentencing ranges proposed by both Probation and the
Government result in a sentence that is far greater than necessary to reflect the
seriousness of the offense, promote respect for the law, and deter future criminal
conduct.
The sentences already rendered to two of Joff’s co-conspirators support a
variance well below the above guideline ranges. David Andre Johnson, a co-
conspirator of Joff, was involved in completing fraudulent applications for EIDL
and PPP loans for his business, DDZ Enterprises, LLC. (PSI ¶ 79). Mr. Johnson pled
14
Case 9:22-cr-80144-RS Document 306 Entered on FLSD Docket 06/21/2023 Page 15 of 16
guilty to five counts of wire fraud, amounting to $730,734.00. See United States v.
Johnson, 22-cr-60201-RS (DE: 29). Despite a Criminal History category of II, Mr.
Johnson was sentenced to 24 months imprisonment followed by three years’
supervised release. See Johnson (DE: 48,50).
Brianna Monique Gayle, one of Joff’s co-defendants, worked with Joff for
over a year. (PSI ¶ 78). Prior to her involvement with Joff in the instant case, Ms.
Gayle worked for ADP. (DE: 94). While working for Joff, Ms. Gayle contacted ADP
on multiple occasions to manage payroll accounts, to add or remove accounts, and
to retrieve payroll documents and W-2 forms for the payroll accounts. (PSI ¶ 78);
(DE: 94). Additionally, Ms. Gayle obtained for herself, as an independent contractor,
a fraudulent PPP loan for approximately 20 thousand dollars. (PSI ¶ 78). Despite
pervasive involvement in the conspiracy, Ms. Gayle was sentenced to a non-
incarceration term of three years’ probation followed by six months’ home detention.
(DE: 215).
Many of Joff’s co-defendants have not been sentenced, as their cases remain
pending. Considering the sentences already rendered to those involved in the
conspiracy, fairness dictates a sentence for Mr. Philossaint well below his guideline
range as outlined in his PSI, and well below the Government’s recommended
guideline range of 121-151 months.
15
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WHEREFORE, Defendant respectfully moves this Court to grant Defendant
a sentence variance as requested herein, pursuant to 18 U.S.C. § 3553(a).
Respectfully Submitted,
SCOTT W. SAKIN, P.A.
CJA Counsel for Defendant:
JOFF PHILOSSAINT
2883 Executive Park Drive, Suite 200
Weston, Florida 33331-3662
Tel. (954) 779-7879
scott@sakinlaw.com
By: ___/s Scott W. Sakin___________
SCOTT W. SAKIN, ESQ.
Fla. Bar No. 349089
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
DEFENDANT PHILOSSAINT’S SENTENCING MEMORANDUM AND
MOTION FOR VARIANCE was filed electronically with the Clerk of the Court
through the CM/ECF system and copies of same distributed to all counsel of record
and known interested parties on this 21st day of June, 2023.
By: ___/s Scott W. Sakin___________
SCOTT W. SAKIN, ESQ.
Fla. Bar No. 349089
16
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