Sentencing — No. 2:22-cr-00111 (Dkt. 23, D. Vt.)

Summary

A transcript of the June 25, 2024 sentencing of Leon Delima in United States v. Delima, Criminal Action Nos. 2:22-cr-111 and 2:23-cr-071, before District Judge Christina C. Reiss in Burlington, Vermont, with Assistant United States Attorney Eugenia A.P. Cowles for the government and Sara M. Puls of the Federal Public Defender for the defendant. The court opens by accepting the 11(c)(1)(C) plea agreement with a binding sentencing range of 37 to 55 months, adopts the presentence report without objection and notes no guideline issues. Judge Reiss describes Delima as a puzzle: a criminal history with violence against multiple female victims and a disciplinary report in March of 2024 on one side, and a PPP loan fraud for which, as probation noted, many defendants receive probation, on the other. Court ran from 10:00 AM to 10:51 AM.

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“Sentencing — No. 2:22-cr-00111 (Dkt. 23, D. Vt.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/sentencing-no-2-22-cr-00111-dkt-23-d-vt-f2a533648a/, SHA-256 f01d913914f80566a8af3ac7286c9b35957fe0f909b6fcd624f2c77b50a70ef0.

Full text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT

UNITED STATES OF AMERICA ) CRIMINAL ACTION NOS.
) 2:22-cr-111
v. ) 2:23-cr-071
)
LEON DELIMA, )
Defendant. )

SENTENCING
Tuesday, June 25, 2024
Burlington, Vermont

BEFORE:

THE HONORABLE CHRISTINA C. REISS,
District Judge

APPEARANCES:

EUGENIA A.P. COWLES, ESQ., U.S. Attorney's Office, 11 Elmwood
Avenue, 3rd Floor, P. O. Box 570, Burlington, VT
05402-0570, Counsel for the Government

SARA M. PULS, ESQ., Office of the Federal Public Defender, 95
Pine Street, Suite 150, Burlington, VT 05401, Counsel for
the Defendant

JENNA M. BRACE, U.S. PROBATION

LEON DELIMA, DEFENDANT

Johanna Massé, RMR, CRR
Official Court Reporter
P. O. Box 5852
Burlington, VT 05402
802-951-8102 | 802transcripts@gmail.com
2

1 Tuesday, June 25, 2024

2 (The following was held in open court at 10:00 AM.)

3 COURTROOM DEPUTY: Your Honor, the matters before the

4 Court are criminal case numbers 22-CR-111 and 23-CR-71, United

5 States of America v. Leon Delima. Representing the Government

6 is Assistant United States Attorney Geni Cowles; present with

7 the defendant is his attorney, Sara Puls; and we are here for

8 sentencing.

9 THE COURT: Good morning.

10 MS. PULS: Good morning.

11 MS. COWLES: Good morning, your Honor.

12 THE COURT: Mr. Delima, I told you the first thing I

13 would do at sentencing is tell you whether I accept the

14 11(c)(1)(C) plea agreement with a binding sentencing range of

15 37 to 55 months. I am going to accept it. It's a reasonable

16 range based on the guidelines and the 3553(a) factors, so I

17 will sentence you within that range.

18 I have read the presentence report, your sentencing

19 memoranda, the letters and the exhibits.

20 Let me make sure you've read the presentence report as

21 well.

22 THE DEFENDANT: Yes, I have.

23 THE COURT: And have you had an opportunity to discuss

24 it with your attorney?

25 THE DEFENDANT: Yes, I have.
3

1 THE COURT: Are there any factual errors in the

2 report?

3 THE DEFENDANT: Not that I'm aware of.

4 THE COURT: How about from your perspective, Ms. Puls?

5 Any factual errors?

6 MS. PULS: No, your Honor.

7 THE COURT: How about from the Government's

8 perspective?

9 MS. COWLES: No, your Honor.

10 THE COURT: The Court adopts the presentence report as

11 its findings of fact in this matter.

12 I don't believe we have any guideline issues. Does

13 anybody think differently?

14 MS. COWLES: No, your Honor.

15 MS. PULS: No, your Honor. Thank you.

16 THE COURT: All right. So I'm going to tell you some

17 of the things that I am thinking about in this case. You

18 should feel free to take the Court in a different direction,

19 present other things to think about, push back about what I'm

20 thinking about. These are just some of the things that have

21 come to mind.

22 Mr. Delima is certainly a puzzle and a complicated

23 individual with a lot of strengths but also some really

24 concerning behavior. So I'm really concerned about the latest

25 DRs in March -- or I should say DR, singular, in March of 2024,
4

1 because that doesn't seem to be a reaction to going to

2 Brooklyn, and I don't know why he would be engaging in that

3 kind of behavior. So that's concerning to me.

4 When I look at the criminal history, there's a fair amount

5 of violence. It's got multiple victims, multiple female

6 victims, and that kind of behavior is the public safety

7 concern.

8 His PPP loan fraud, as the probation officer pointed out

9 to me, a lot of people who have engaged in that are getting

10 probation. His fraud was on a bigger scale, at least the

11 second one, but that's a financial crime. The victim is all of

12 us as taxpayers, and I think he could stop that behavior.

13 Buried within the record is obviously a sign that

14 Mr. Delima's capable of forming strong relationships, and he's

15 apparently super smart and super capable. So I'm just

16 wondering what's going to turn this in the right direction, how

17 did we get into this mess.

18 Obviously he's had a lot of challenges in his childhood.

19 Even so, it doesn't necessarily seem to kind of produce a

20 coherent narrative or explanation of why we're here, and

21 Mr. Delima's probably the best source of how all that happened.

22 So some promise in that it's not everybody who gets to be

23 super smart and have super good abilities to do good work, and

24 then the violence is concerning.

25 So I'll start with you, Ms. Puls.
5

1 MS. PULS: Thank you, your Honor.

2 As set forth in our sentencing memorandum, we are

3 requesting a downward variance from the low end to the lowest

4 end of the deeply capped 37 months, and I'll start with the

5 Court's concerns.

6 So in terms of the March DR, March 4th, 2024, I believe

7 that occurred at Strafford. The time frame on the incidents

8 from February 26th to March 4th, those were all related to an

9 ongoing acute mental health incident, and I understand that

10 after Mr. Delima was moved to Strafford, the hope was that that

11 would really help solve the problem. Unfortunately, the

12 lingering -- I believe the diagnosis from Keith Smith,

13 counselor Keith Smith, was the acute stress disorder with

14 dissociative features, so the impact of that event really

15 lingered with Mr. Delima. He was still working through really

16 an acute mental health crisis at that time, and --

17 THE COURT: Well, I think the -- I think that falls

18 apart. So I agree when you think that you've seen people being

19 beheaded and their heads are on skewers that that is not

20 somebody who is talking in the right mind, and even though he

21 did pick up disciplinary reports, one of them at least

22 recognizes this as a person in the middle of a mental health

23 crisis.

24 This is a year later, and one of the sentencing memo's

25 points was he's turned it around, he's not doing that anymore,
6

1 he hasn't had any DRs since, and it seems pretty gratuitous.

2 So you think that's another mental health crisis?

3 MS. PULS: I apologize, your Honor. What specific

4 incident are you referring to? I thought you were referring to

5 the March 4th, 2024.

6 THE COURT: I am. So --

7 MS. PULS: So --

8 THE COURT: -- I thought we were, like, done with

9 this --

10 MS. PULS: No.

11 THE COURT: -- and then we have one in 2024, in

12 February, and we have one in March of 2024.

13 MS. PULS: So the -- from defense perspective, the

14 sort of purely disciplinary issues, the last one was in June of

15 2023. Most recently, the February 2024, the acute mental

16 health crisis, really, took place over a -- it was a

17 couple-week period.

18 So you have the February 26 incident listed on page 5.

19 That incident -- that, again, crisis was ongoing into the next

20 week on March 4th. So there's not a lengthy period between

21 those. It's a matter of days. The initial mental health

22 crisis began -- as corroborated by the jail records and by

23 Counselor Smith's evaluation, began due to an acute stress

24 reaction at MDC Brooklyn.

25 We requested, because of what Mr. Delima was experiencing,
7

1 that he be moved to Strafford, and he was. Unfortunately, the

2 sort of symptoms or the reaction he was having continued to

3 persist for a few days afterwards, and so it was really this

4 finite time in 2024 where this was occurring.

5 So the -- I believe the argument stands that but for this

6 sort of finite period in 2024 where I believe we have

7 corroborated it was the product of a mental health crisis, he

8 did not have any purely disciplinary issues or has not for over

9 a year, if that clears things up.

10 THE COURT: Okay. You threw me -- you're right on the

11 timeline. You threw me that he hasn't had any disciplinary

12 issues for over a year. What you are attributing to mental

13 health, then, is everything in 2024, which includes an assault,

14 acting in a way that abuses operation of the facility, acting

15 in a way that abuses operation of the facility.

16 And then is there any explanation for the June 2023 four

17 DRs?

18 MS. PULS: So, your Honor, in terms of the June 2023

19 DRs, I think overall -- and we didn't get into the details in

20 terms of any specific objections to the PSR, but I think what

21 Mr. Delima would note was these were allegations. He never had

22 a disciplinary hearing. There was allegedly some video

23 evidence of some of these allegations, and it turned out that

24 that was false, that there wasn't actually video evidence.

25 My office had attempted to sort of try to get to the
8

1 bottom of what had been going on in terms of trying to see what

2 the evidence was. We were never successful in obtaining

3 anything that -- in terms of the evidence that the jail was

4 alleging they had against Mr. Delima.

5 So I don't think we're necessarily making, you know,

6 excuses or trying to deny any, you know -- I think Mr. Delima

7 will admit that there was some wrongdoing at the jails during

8 that time period. I don't think he necessarily agrees with all

9 of the allegations, and in fact, there was never an actual

10 finding. They never actually had a hearing to --

11 THE COURT: I saw that.

12 MS. PULS: Yeah.

13 THE COURT: He was moved before they could.

14 MS. PULS: Yup.

15 THE COURT: Here's my concern, is the jail -- that's

16 the jail's business. He's been punished for it. I'm just

17 worried about what it spells for the future in terms of public

18 safety.

19 MS. PULS: Thank you, your Honor. And I think our

20 point, your Honor, is that up until that point, Mr. Delima

21 really had been moved quite a bit. Part of it had to do with

22 having multiple hearings, and there were other reasons. So

23 there had been quite a bit of instability in terms of what

24 facility he was at. If you look at the PSR, he was in fact

25 moved to seven different facilities during this 20-month period
9

1 of pretrial incarceration. That certainly took its toll on

2 Mr. Delima I think in part due to some of the trauma he

3 experienced during periods of incarceration in his youth and

4 just overall untreated trauma.

5 I think the point to the Court is that -- I was attempting

6 to make in my written pleadings was that it has been now over a

7 year since what we think is sort of a purely disciplinary

8 issue. That's a year of good behavior but for the mental

9 health crisis in February and March of this year. So I think

10 Mr. Delima did have some insight certainly that -- there was a

11 motion requesting reconsideration of his detention at a certain

12 point. That was denied. I believe -- I'm not recalling

13 whether that was in front of your Honor or the magistrate

14 judge, but regardless, these DRs that were in existence at the

15 time, or alleged DRs, were part of the argument as to why he

16 was not going to be released.

17 Mr. Delima I think had, you know, a great deal of

18 reflection at that point and is like, "Okay. This cannot keep

19 happening." So for a year, he has, you know, had better

20 behavior. And I think in terms of meeting with Counselor

21 Smith, that is something that took place in that intervening

22 year. He met with Keith Smith, he was given sort of these

23 concrete diagnoses of, you know, "Here's what you need to work

24 on. You have severe alcohol use disorder. You have PTSD. You

25 need counseling, and you need substance abuse treatment."
10

1 Mr. Delima has sought for approval to participate in

2 treatment. He had been approved to take place in a treatment

3 program at Strafford before he was moved. He has been

4 participating in treatment with Keith Smith virtually, and I

5 think in terms of public safety, your Honor can look at this

6 period of better behavior, of good behavior where he is

7 actively engaging in treatment, and I think the --

8 THE COURT: So I think it's totally overstated that

9 it's a period of good behavior. It just isn't. What I will

10 agree with is since March, his behavior has been seemingly

11 perfect. So that's good, because it means that he can behave,

12 and that -- that is a chunk of time. But to look at this

13 pretrial detention and say he's had a lengthy period of good

14 behavior would be an overstatement of what's happened.

15 MS. PULS: Thank you, your Honor. In my conversations

16 with Mr. Delima, I can attest to the fact that there was

17 certainly severe mental health issues going on during the early

18 spring of this year, and to the extent that that, you know, is

19 a factor against him during this period, again, we would point

20 to he has seemingly been very amenable to treatment. Counselor

21 Smith has very positive things to say about him, and I think

22 this is the first time other than some spotty treatment through

23 the Howard Center in the past that he's had a treatment

24 provider who's really a good fit and has been able to start

25 working through a lot of the trauma that he honestly has never
11

1 worked through before, and I think that's sort of at the heart

2 of the substance use disorder. It's at the heart of the PTSD.

3 It's at the heart of the offense conduct in this case.

4 So in terms of public safety, I think the Court can look

5 at the progress Mr. Delima has made, you know, however much

6 credit for the past year or the past few months that the Court

7 wants to give it, and feel assured that with correct treatment,

8 Mr. Delima really can thrive. He has very good insight. He's

9 very smart. He's very motivated to succeed. He has a fiancée

10 and many young children who he wants to be out with and

11 parenting.

12 I think another positive factor in Mr. Delima's favor in

13 this case, and it's sort of easy to miss, but in terms of the

14 timeline, Mr. Delima was arrested on state reckless

15 endangerment charges, and he was released on conditions on

16 July 4th of 2022 -- or July 5th. I apologize. He was out on

17 state pretrial release from July until October 7th, I believe,

18 of 2022. This period before the federal case, he was out on

19 state pretrial release. It's not as vigorous of a supervision

20 as federal probation would certainly impose, and he didn't pick

21 up any violations of conditions of release. He didn't pick up

22 any new charges.

23 By his fiancée's corroboration, we know that this was

24 really a period of stability for Mr. Delima. He was not

25 drinking. He was helping to parent their children, and, you
12

1 know, this was really a stable period for him, which I think is

2 in part why having to go in at the point he went in in October

3 of 2022, he now knows he can do it. He knows he can be out and

4 be stable. He had that period where, you know, the charges

5 were brought and he was out. He stopped drinking. He had a

6 stable family life. And in terms of being motivated to

7 succeed, that sort of glimpse of what he had and lost by going

8 in in October and now having been in for 20 months, that is a

9 huge motivating factor for Mr. Delima. He wants that back, to

10 be frank, and I think now he knows what he needs to do very

11 clearly.

12 Prior to meeting with Counselor Smith, I don't think

13 anybody had done an in-depth dive into, you know, what is going

14 on here? And I think now that it's really been spelled out for

15 him that these are the specific things you need to address

16 through treatment, Mr. Delima is very serious about -- about

17 taking whatever steps he needs to do, and he has those clear

18 goals now that Counselor Smith has been able to provide for him

19 that were lacking in the past.

20 So I think in terms of public safety, the Court can be

21 assured through his progress in treatment in recent months,

22 through that period of good behavior in the community prior to

23 being brought in on the federal charges, and the overall

24 insight Mr. Delima has gained into what needs to happen for him

25 going forward that he really hasn't had the chance to reflect
13

1 on in any serious way prior to this. This is the longest

2 period of incarceration he's ever served. My understanding,

3 and as the Government points out in its memo, 18 months is the

4 longest jail sentence Mr. Delima has ever served. He's now

5 been in 20 months.

6 So in terms of looking at what would be sufficient, but

7 not greater than necessary, our position is that he's already

8 indicated that this period of incarceration is, you know, in

9 theory sufficient enough. We don't see 55 months as -- as

10 being necessary here. We believe that would be greater than

11 necessary, that 37 months is sufficient, but not greater than

12 necessary, taking into account all of the 3553(a) factors.

13 THE COURT: Has he paid any restitution?

14 MS. PULS: No, your Honor. He has been incarcerated,

15 obviously, during this entire time period, so there has not

16 been any payment towards restitution yet.

17 THE COURT: What happened with the products that he

18 sold, though? Is that money gone, then?

19 MS. PULS: Yes. Mr. Delima has no funds at this

20 point. He's indigent. Any proceeds that he did make from

21 reselling any of the sneakers that he purchased, it is my

22 understanding there's not savings at this time. Mr. Delima, of

23 course, understands and takes seriously his restitution

24 obligation. He does have plans to start working as soon as

25 he's released. He can work at his fiancée's salon, that he
14

1 also has other plans that he has in mind and is also hoping at

2 some point to continue his education, but he certainly takes

3 seriously his restitution obligation. It's -- and I would

4 point that the actual loss to the Government was about $18,000,

5 so it's not a -- I think Mr. Delima takes that seriously and

6 will be dedicated to repaying that amount.

7 THE COURT: I think it's calculated, though, by the

8 presentence report at $20,798.12, and I didn't see that that

9 was contested. And it was in the plea agreement, I believe, as

10 well.

11 MS. PULS: Yes.

12 THE COURT: So it's the amount he owes in a certified

13 statement from the Small Business Administration with the

14 interest daily rate attached to it.

15 MS. PULS: Yes, your Honor. So the amount he owes

16 takes into account some interest that has accrued, the actual

17 initial loan; and the actual loss was, I believe, 17,000 and --

18 it was close to $18,000. And that does -- it's sort of a minor

19 point in the grand scheme of things, but I would note in terms

20 of his guideline calculation, he did get a plus 12 in his

21 calculation. That includes the intended loss.

22 There was this -- as your Honor saw, this other

23 application. It was not a sophisticated attempt, we would

24 argue, in terms of seeking a second loan. It was a pet spa

25 business that claimed to have 30 employees and just overall
15

1 didn't seem very sophisticated or a very -- anyways, so the

2 guidelines were increased by plus 12, and that includes an

3 intended loss. The actual loss to the federal government was

4 less than $18,000. So in terms of the offense conduct, we

5 would just want to highlight that.

6 But, yes, Mr. Delima, as soon as he is back out in the

7 community and working, will fully intend to begin his

8 restitution payments.

9 THE COURT: All right. Mr. Delima, do you want to

10 make a statement on your own behalf?

11 THE DEFENDANT: I just want to say that, you know, I'm

12 sorry for the things that I did, and basically, like, since

13 I've been incarcerated, I've had a rough time. I've been going

14 through a lot here. Like, I did have a mental health crisis

15 back in February and March, and, like, I'm not just in a

16 facility acting crazy and just -- you know, just -- like, I

17 really went through some stuff. When I woke up, I didn't even

18 know what year it was. So I'm not just sitting there just --

19 you know, just doing crazy things for no reason. Like, I

20 really had something going on, and, you know, I'm trying to be

21 a better person and get back home to my family. That's about

22 it.

23 THE COURT: Do you mind if I ask you some questions?

24 THE DEFENDANT: Sure. Why not?

25 THE COURT: So I'm not, you know, so worried about
16

1 this fact pattern. I'm worried about the future. Because

2 you're getting older. You have children dependent on you. You

3 actually have a good life to go back to. And if I wanted to

4 predict the ways I would think that you would get into trouble,

5 I would say alcohol and firearms. You will find yourself in

6 trouble. You also seem to know people who could get you into

7 trouble in the community.

8 So what is your plan for the future?

9 THE DEFENDANT: Well, my plan for the future is to go

10 home and be a parent to my children. I've been incarcerated

11 before, but I'd never had children before when I was

12 incarcerated, so now this is what I learned. Like, I learned

13 how much my children need me since I've been in here. Like,

14 when I go home, I don't need a firearm. Like, I'm not going

15 back to do none of the things that I was doing when I was home

16 before.

17 I now have a stable residence where I live; I have

18 employment; I have opportunities. I don't have to do the

19 things that I -- that I was doing before. Before, I kind of

20 felt like, you know, it was the pandemic; it was a lot of stuff

21 going on; I lost my dad; I was homeless. Like, I was just in a

22 bad situation, and then, you know, I made a bad -- I made bad

23 decisions.

24 Right now I have a great support system and I have people

25 that really need me. I don't have to do any of those things.
17

1 I'm not living a lifestyle where I need a firearm, so trust me,

2 I'm never going to pick up another firearm again. I've

3 definitely learned my lesson from this.

4 THE COURT: From the Court's perspective, behavior is

5 a message. So that's why I look at how people behave in jail,

6 because if you're not motivated to behave in jail when you're

7 awaiting sentencing, I can't imagine a time when you would be

8 more motivated. And some of this is mental health and some of

9 it is, you know, smoking pot or doing whatever while you're

10 incarcerated.

11 Do you agree that whatever additional time I give you,

12 your behavior should be pretty close to perfect during that

13 time if this is really a change that means something?

14 THE DEFENDANT: Yes. And then so just to touch on

15 that briefly, so the DRs where they said that I was smoking or

16 whatever, I've never had a dirty urine since I've been in

17 prison. Like, these are just accusations, and they said that

18 the hearings weren't held because I left the facility. I was

19 in these facilities after these DRs for more than 20 days.

20 In New York state, the facility that it happened at, they

21 have maybe five business days to hold these hearings. Sara has

22 called and verified that. So it wasn't because I left the

23 facility. It was because some of the stuff that they wrote

24 wasn't factual and then -- so I am going to admit I just was in

25 the wrong place hanging out with the wrong people, but I was
18

1 not doing some of the things that they said that I did.

2 And then as far as, like, my behavior while I was awaiting

3 sentencing since the last time I saw you when you told me not

4 to get in trouble, I didn't get in trouble on my own behalf. I

5 really had, like, a complete mental breakdown, and the things

6 that I was going through at MDC, like, the conditions there

7 were really hard. Like, we really had -- like, we had food

8 with maggots in it. Like, the place is terrible. Like, they

9 didn't have socks for us, T-shirts, drawers. We were

10 constantly locked in every day. Like, that place was crazy.

11 Like, it should be closed.

12 So, like, I just -- and then I went back -- I was in

13 solitary confinement before I left there, and then I went to

14 another facility back into solitary confinement not for

15 behavior, just because they do these COVID restriction things,

16 and then at some point, like, I just -- like, I lost it. Like,

17 I don't know what happened. I just remember I woke up and I

18 was crying, and I called Sara and my mom, and I didn't even

19 know what year it was. Like, I was, like, out of it. So I

20 didn't do -- you know, I was not just misbehaving.

21 THE COURT: Okay. So I get over things and push them

22 aside and face forward, and I need you to do that too, but we

23 are going to hold you accountable going forward, and when you

24 come out on supervised release, it's the same thing. You do

25 what you're supposed to do - we don't want to interfere with
19

1 your life - you'll have more liberty. If you're doing stuff

2 like dabbling in smoking pot or you're drinking or you're

3 having a domestic, then we get back into your life, and I just

4 want to hear that we're not going to have that kind of

5 supervised release and we're not going to see that in whatever

6 time you have left in jail. The behavior will be the message,

7 and the message is "I'm a grown-up. I'm a father. I'm

8 returning to my community as a responsible citizen." Can you

9 deliver that message?

10 THE DEFENDANT: Yes, I can definitely deliver that

11 message. My wife doesn't smoke or drink, so there's definitely

12 going to be no pot smoking. I've got five kids at the house,

13 so I'm definitely not going to be home smoking pot and I'm

14 definitely not going to come back to jail for a joint of pot.

15 Like, it's not worth it. I refuse to lose my kids over a joint

16 of pot or lose my family just for a smoke or a drink. Like,

17 it's not worth it. The stuff that I've been going through, I

18 would not even put myself through that, like, to have to go

19 through this again just for a drink or a smoke or, you know,

20 like, something silly. I'm definitely straight on that.

21 THE COURT: Or even the underlying crimes.

22 THE DEFENDANT: Yeah. Like --

23 THE COURT: Discharging a firearm and the PPP loan,

24 all stuff totally avoidable.

25 THE DEFENDANT: Yeah. And then even -- like, even
20

1 with the underlying crime, like, when I was going through that,

2 like, I was in the middle of a mental health crisis. If you

3 saw the video when I was arrested, like, I barely could stand

4 up; I barely could talk. Like, I was not myself. That is not

5 something that I would normally do. That's not my regular

6 behavior. I'm not that type of person.

7 THE COURT: Okay. That's good to hear. Anything else

8 that you want to say before I turn to the prosecutor?

9 THE DEFENDANT: I would just like to apologize to my

10 community, you know, for making a fool of myself and making the

11 community feel unsafe, you know, and to anybody that I've hurt.

12 THE COURT: All right. Thank you.

13 Ms. Cowles.

14 MS. COWLES: Your Honor, as the Court's aware, the

15 Government is asking for a 55-month sentence in this case to

16 come along with orders of restitution and forfeiture alleged in

17 the indictment.

18 This really isn't a case for a downward variance below the

19 guidelines, and I think it's because when we look at the full

20 pattern of behavior -- and in this case you have two different

21 perspectives. You have the fraud side and you have within a

22 year the sort of reckless disregard for the community with the

23 firearms and the drug and the discharge.

24 What we see in that pattern is that Mr. Delima has for

25 quite some period of time done what he wants to do. If he is
21

1 interested in money, he's willing to lie to get it. If he

2 wants to sell drugs, he sells drugs. If he wants to fire off a

3 gun, he fires off a gun. And I think that's consistent with

4 the criminal history the Court looked at where we see violent

5 incidents popping up. And I think it's consistent with the

6 behavior through the DRs.

7 We see this pattern of sort of disregard for the community

8 around him, and I think while it's good to hear about positive

9 changes Mr. Delima may be willing to make now, when we look at

10 an appropriate sentence, we have to also look at sanctioning

11 the behavior.

12 As we pointed out, he's never served more than 18 months,

13 and he ended up in a situation where he just engaged in an

14 extensive spree of behavior that put the community in great

15 risk.

16 The Court noted that some people who are convicted for PPP

17 loan fraud simply get probation. You noted the size in this

18 fraud is different. But I think the question is really what

19 the Court ended with: Could Mr. Delima stop the behavior? He

20 should be able to. We've all read the PSR. We understand he's

21 very bright. But when you look at the pattern of behavior, the

22 mix of drugs and guns and financial lies, the history that

23 involves apparent violence against the community, and then we

24 see the behavior even after he went into custody in this case,

25 we see someone who, yes, for a period of a month or two has
22

1 been able to behave at various points in his life but overall

2 has this consistent disregard for those around him and a

3 consistent willingness to do whatever it is that he wants to

4 do. And I think for that reason, it puts the "could he stop

5 the behavior?" in greater question.

6 Again, he should be able to, and I think any sentence

7 should include a full period of supervised release, the three

8 years. It should include counseling and treatment coming out

9 of custody. But I don't think that's a reason to reduce the

10 custody now.

11 We have the unusual situation of having a defendant who

12 committed two very diverse types of crimes right on the heels

13 of each other, and I think the only common thread is that

14 disregard for the community, and I think that's what we are

15 asking the Court to sanction with a 55-month sentence here.

16 THE COURT: All right. Thank you.

17 Anything further from you, Ms. Puls?

18 MS. PULS: No. Thank you, your Honor.

19 THE COURT: The Court begins with the guideline

20 calculation.

21 Pursuant to the decisions of the Supreme Court in United

22 States v. Booker and Gall v. United States, and the Second

23 Circuit Court of Appeals' decision in United States v. Crosby,

24 in determining the following sentence, the Court has considered

25 the United States Sentencing Guidelines applicable in this
23

1 case, including all departure authority contained in the

2 guideline policy statements, as well as all the factors

3 enumerated in 18 USC, Section 3553(a).

4 The Court finds as follows:

5 The offenses of wire fraud, in violation of 18 USC,

6 Section 1343, and false statements, in violation of 18 USC,

7 Section 1001, Counts 1 and 2 under docket number 2:23-CR-71,

8 occurred on or about April 17th, 2021; and the offense of felon

9 in possession of a firearm, in violation of 18 USC, Section

10 922(g)(1) and 924(a)(8), Count 1 under docket number

11 2:22-CR-111, occurred on or about July 2nd, 2022. Hence the

12 sentencing guidelines apply.

13 Counts 1 and 2 under docket 2:23-CR-71 meet the grouping

14 criteria in U.S. Sentencing Guidelines Section 3D1.2(c).

15 Therefore, U.S. Sentencing Guidelines Section 2B1.1 is used for

16 the guideline calculation assigned under Count Group 1.

17 Counts 1 and 2 under docket 2:23-CR-71, Count Group 1, and

18 Count 1 under docket number 2:22-CR-111, Count Group 2, do not

19 meet the grouping criteria in U.S. Sentencing Guidelines

20 Section 3D1.2. Consequently, each group is treated separately

21 in the guideline analysis.

22 COUNT GROUP 1 (WIRE FRAUD & FALSE STATEMENTS)

23 The guideline for this offense is found in Section 2B1.1

24 of the Guidelines Manual, November 1st, 2023, edition. The

25 base offense level is seven pursuant to U.S. Sentencing
24

1 Guidelines Section 2B1.1(a)(1).

2 Specific offense characteristics apply. The loss was more

3 than $250,000. Therefore, the offense level is increased by 12

4 levels pursuant to U.S. Sentencing Guidelines Section

5 2B1.1(b)(1)(G). The adjusted offense level is 19.

6 COUNT GROUP 2 (FELON IN POSSESSION OF A FIREARM)

7 The guideline for this offense is found in Section 2K2.1

8 of the Guidelines Manual, November 1st, 2023, edition. The

9 defendant was a prohibited person at the time he committed the

10 instant offense, resulting in a base offense level of 14

11 pursuant to U.S. Sentencing Guidelines Section 2K2.1(a)(6)(A).

12 Specific offense characteristics apply. The offense

13 involved a stolen firearm, resulting in an increase of two

14 offense levels pursuant to U.S. Sentencing Guidelines Section

15 2K2.1(b)(4)(A).

16 The defendant possessed firearms in connection with

17 another felony offense, resulting in an increase of four

18 offense levels pursuant to U.S. Sentencing Guidelines Section

19 2K2.1(b)(6)(B). The total adjusted offense level is 20.

20 In determining the combined offense level pursuant to U.S.

21 Sentencing Guidelines Section 3D1.4, one unit is assigned to

22 each count group, resulting in a two-level increase to the

23 highest offense level. The adjusted offense level is 22.

24 The defendant demonstrated an acceptance of responsibility

25 for his offense. Therefore, the offense level is reduced by
25

1 three levels pursuant to U.S. Sentencing Guidelines Section

2 3E1.1. The total offense level is 19.

3 The defendant has nine criminal history points, resulting

4 in a criminal history category of IV. The guideline

5 imprisonment range for an offense level of 19 and a criminal

6 history category of IV is 46 to 57 months.

7 The Court has accepted the parties' Rule 11(c)(1)(C) plea

8 agreement to a sentencing range of 37 to 55 months.

9 The guideline range for a term of supervised release is

10 one to three years. Since the applicable guideline range is in

11 Zone D of the sentencing table, the defendant is ineligible for

12 probation.

13 In addition to the sentencing guidelines, the Court

14 considers the factors set forth in 18 USC, Section 3553(a), in

15 an effort to impose a sentence that is sufficient, but not

16 greater than necessary.

17 In deciding what is a sufficient, but not greater than

18 necessary, sentence, the Court looks at a number of factors:

19 the nature and circumstances of the crime; your history and

20 characteristics; the need for the sentence imposed; the kind of

21 sentences available; the need to avoid unwarranted sentencing

22 disparities between defendants with similar criminal histories

23 who've committed similar crimes. So you should not get a

24 sentence that is substantially more harsh or more lenient than

25 somebody else in your criminal history category unless there's
26

1 a reason for it.

2 In deciding the need for the sentence imposed, the Court

3 is directed to reflect the seriousness of the offense; promote

4 respect for the law; impose just punishment; protect the public

5 from future crimes by you; impose what we call specific

6 deterrence, say to you, "Mr. Delima, don't do this. It has

7 consequences," hopefully you'll be motivated never to be back

8 here, and also general deterrence, say to the community at

9 large, "These are crimes that threaten the public in two

10 different ways. We can't have this. It affects the community,

11 so whoever is committing these crimes must have consequences as

12 well," and hopefully other people will be motivated not to be

13 here.

14 The Court also needs to make sure you get rehabilitation,

15 substance abuse/mental health treatment, vocational and

16 educational opportunities in the most effective manner.

17 In this case, the parties are right: These are two very

18 different crimes, and I'll take one first and the next one.

19 The PPP loan, the first one was kind of standard fraud in

20 an amount that could be conceivable that you were actually out

21 that amount, and this is what people were doing, unfortunately,

22 in the pandemic. We're all going to pay for it. It's not free

23 money, and we're all going to find that out sooner or later,

24 and that includes you.

25 The other scheme where you're asking for $350,000, I agree
27

1 with your attorney: It's not only unsophisticated; it was like

2 an immediate red flag that this is fraud. Nobody looked at

3 that application and said, "There's a pet shampooing business

4 in Burlington with that many employees generating that kind of

5 income." So for someone who's smart, I do wonder what kind of

6 mental state you were in, and I take you at your word that you

7 were in a bad place and you weren't, you know, yourself and you

8 weren't doing what you would normally do.

9 So that's one crime. And if we were just talking about

10 that, it would be something that if you were paying your

11 restitution we would be looking at probation, that kind of

12 thing.

13 The other crime, discharging a firearm in Burlington at

14 night; having, you know, distribution quantities of drugs on

15 you and a fair amount of cash; discarding the firearm where

16 somebody else might pick it up, loaded, and end up dead, that

17 was really reckless behavior. That has a direct impact on the

18 community. Thankfully, a child didn't pick it up. Thankfully,

19 you weren't pointing it at anybody or trying to threaten

20 people. I don't know what you were doing, but I agree with you

21 based on the video that you probably were not necessarily in

22 your right mind. So not a great fact pattern for felon in

23 possession of a firearm, but unfortunately not the worst fact

24 pattern I've seen either.

25 So we have two crimes that are somewhere in the middle
28

1 range, and your sentence should reflect that.

2 Your history and characteristics. It would have been

3 wonderful to see you go into a setting where your gifted

4 intellect was rewarded and not punished and you weren't picked

5 on for it and you were supported by the people around you. Who

6 knows? You know, you might have been a chess champion. Who

7 knows where it would have taken you?

8 What happens thereafter does become your responsibility.

9 So I know you've seen a lot of traumatic things and you've seen

10 a lot of violence, but you're responsible for you, and you need

11 to look at that past record of violence, especially with more

12 vulnerable people, like women, and ask yourself: Is alcohol

13 something I have to stay away from? What is the common

14 denominator? Because that behavior cannot continue. That's

15 directly threatening the community, and that behavior is what

16 I'm most concerned about.

17 I think you have a lot to lose and have a lot to go back

18 to. You have -- you know, when you get back into the

19 community, you're going to have, if all goes well, a job, a

20 home, a family, something that other people have to work, you

21 know, for a long time for, and I'm not saying that you didn't

22 work for those things. That's a pretty good motivator. But

23 the behavior's going to tell the real story. Are you

24 motivated, or are we going to be coming back here on supervised

25 release because you met up with the wrong person and got
29

1 yourself into trouble?

2 I think you can do it, and for that reason I don't think

3 you need to be at the top of the guidelines, but I do think the

4 bottom of the guidelines isn't an appropriate place for you to

5 be sentenced in light of the collective factors. And I am

6 going to give you the three years of supervised release because

7 I think you need to settle into the community, show that you

8 can conform your behavior to what's expected, go live your

9 life, and then you'll be off supervised release.

10 So for all of those reasons, the Court has determined that

11 a sentence of 46 months on Count 1 and Count 2, followed by a

12 three-year term of supervised release, is a sufficient, but not

13 greater than necessary, sentence.

14 Please stand.

15 It is the sentence of the Court that the defendant be

16 committed to the custody of the Federal Bureau of Prisons for

17 46 months on Counts 1 and 2 under docket number 2:23-CR-71 and

18 46 months on Count 1 under docket number 2:22-CR-111, with

19 credit for time served to which he is entitled, if any, all

20 counts to run concurrently, for a total sentence of 46 months,

21 to be followed by a three-year term of supervised release on

22 each count, concurrent, for a total sentence of supervised

23 release of three years.

24 The conditions of supervised release are as follows:

25 You must not commit another federal, state, or local
30

1 crime.

2 You must not unlawfully possess a controlled substance.

3 You must refrain from any unlawful use of a controlled

4 substance. You must submit to one drug test within 15 days of

5 release from imprisonment or placement on probation and at

6 least two periodic drug tests thereafter, as determined by the

7 Court.

8 You must cooperate in the collection of DNA as directed by

9 the probation officer.

10 You must comply with the standard conditions of

11 supervision adopted by this court. Those conditions are

12 imposed because they establish the basic expectations for your

13 behavior while on supervision and identify the minimum tools

14 needed by probation officers to keep informed, report to the

15 Court about, and bring about improvements in your conduct and

16 condition.

17 You must make restitution payments in an amount of 10

18 percent of your gross monthly income until the financial

19 obligation is paid in full. You must notify the Court

20 immediately of any material change in your economic

21 circumstances that might affect your ability to pay financial

22 penalties.

23 You must not incur new credit charges or open any

24 additional lines of credit without approval of the probation

25 officer until the financial obligation is paid in full.
31

1 You must provide the probation officer with access to any

2 requested financial information and authorize the release of

3 any financial information to the probation officer. The

4 Probation Office may share financial information with the

5 United States Attorney's Office for the purpose of collecting

6 outstanding financial penalties.

7 You must participate in a mental health program approved

8 by the United States Probation Office. You shall contribute to

9 the cost of services rendered in an amount to be determined by

10 the probation officer based on ability to pay or the

11 availability of third-party payment.

12 You must submit your person; property; house; residence;

13 vehicles; papers; computer, as defined in 18 USC, Section

14 1030(e)(1); other electronic communications or data storage

15 devices or media; or office to a search conducted by a United

16 States probation officer. Failure to submit to a search may be

17 grounds for revocation of release. You must warn any other

18 occupants that the premises may be subject to searches pursuant

19 to this condition. An officer may conduct a search pursuant to

20 this condition only when reasonable suspicion exists that you

21 have violated a condition of supervision and that the areas to

22 be searched contained evidence of this violation. Any search

23 must be conducted at a reasonable time and in a reasonable

24 manner.

25 You must participate in substance abuse treatment, which
32

1 may include a substance abuse assessment with a licensed

2 substance abuse provider, and abide by any programmatic

3 treatment recommendations. This program may include testing to

4 determine whether you have reverted to the use of drugs or

5 alcohol. You shall contribute to the cost of services rendered

6 based on ability to pay or the availability of third-party

7 payment. You must refrain from the use of alcohol and other

8 intoxicants during and after treatment.

9 The guideline fine range is from $10,000 to $100,000. The

10 defendant has demonstrated an inability to pay a fine. Hence

11 all fines are waived.

12 Restitution in the amount of $20,798.12, plus interest, is

13 ordered, due immediately, to the victim noted below. The clerk

14 of the court shall direct restitution payments as follows: to

15 the U.S. Small Business Administration.

16 Any unpaid financial penalty imposed shall be paid during

17 the period of incarceration at a rate of 10 percent of the

18 defendant's quarterly earnings. Defendant may voluntarily pay

19 in excess of this amount while incarcerated.

20 Defendant may request a hearing regarding his ability to

21 pay at any time.

22 A special assessment of $300 is imposed, due immediately.

23 The Court recommends the defendant receive mental health

24 treatment while incarcerated and educational and vocational

25 opportunities.
33

1 Both the defendant and the Government may have the right

2 to appeal this sentence, as set forth in Title 18, U.S. Code,

3 Section 3742. If the defendant is unable to pay the cost of an

4 appeal, he has the right to apply for leave to appeal in forma

5 pauperis, in which event we would waive the cost of an appeal,

6 and he may request the Court to appoint counsel for him. If

7 the defendant so requests, the clerk of the court shall prepare

8 and file forthwith a notice of appeal on behalf of the

9 defendant. Notice of appeal by the defendant must be filed

10 within 14 days of the date judgment is entered on the docket

11 pursuant to Rule 4(b) of the Federal Rules of Appellate

12 Procedure.

13 Ms. Cowles, do you have anything to dismiss in this case?

14 MS. COWLES: I do, your Honor. And one point of

15 clarification. For the 2:22-CR-111 docket, there's a

16 forfeiture notice forfeiting the firearm. I assume with the

17 conviction on Count 1, the Court would consider the order of

18 forfeiture for the firearm.

19 THE COURT: Yes. I didn't see anything about that in

20 your sentencing memo.

21 MS. COWLES: I did not put it in my sentencing memo.

22 I apologize for that, your Honor.

23 THE COURT: Okay. So you want a forfeiture judgment

24 for the firearm in -- as set forth in paragraph what of the

25 plea agreement?
34

1 MS. COWLES: I believe --

2 COURTROOM DEPUTY: I think it's at paragraph 11.

3 MS. COWLES: Thank you.

4 THE COURT: Paragraph 11 of the plea agreement.

5 Any objection to that, Ms. Puls?

6 MS. PULS: No objection, your Honor.

7 THE COURT: All right. The Court will enter a

8 judgment of forfeiture for the firearm set forth in paragraph

9 11 of the plea agreement.

10 And if you -- did you do your preliminary order of

11 forfeiture for that?

12 MS. COWLES: I'm not sure whether we did, your Honor,

13 so we will have to figure out --

14 THE COURT: You need to do that too.

15 MS. COWLES: -- what paperwork still needs to be done

16 in that case. I believe the firearm was initially held as

17 evidence, and we will be moving with the order now.

18 THE COURT: Okay. And you were going to dismiss

19 something.

20 MS. COWLES: Yes, your Honor. As to the docket

21 2:22-CR-111, we move to dismiss Count 2. And as to the docket

22 2:23-CR-71, we move to dismiss Count 3.

23 THE COURT: Any objection?

24 MS. PULS: No objection, your Honor.

25 THE COURT: They are dismissed.
35

1 Ms. Puls, do you have any recommendation as to where

2 Mr. Delima serves his sentence?

3 MS. PULS: Yes, your Honor. If the period of

4 incarceration is low enough, to a local -- serving his sentence

5 locally is possible, that is his first request. If not, FCI

6 Otisville.

7 THE COURT: Okay. Locally, we don't have a

8 postsentencing contract with anybody.

9 So the Court recommends the defendant be incarcerated at

10 FCI Otisville in the lowest security setting available to him.

11 Mr. Delima, I will talk to the judges in the Eastern

12 District of New York about MDC/MDI Brooklyn and about what you

13 reported about the conditions there. I know they're concerned

14 about it as well, and I will tell them that the Vermont judges

15 share your concerns, and we'll see if we can get that situation

16 turned around.

17 You're going to come out. You're going to rejoin your

18 community. Everybody wants you to succeed. If you're

19 struggling, reach out to the probation officer. That person's

20 job is to help you stay in the community. And let's see if we

21 can get through that period without any further need for

22 intervention. If we do, let's take care of the problem right

23 away and turn it around. So good luck to you.

24 THE DEFENDANT: Thank you.

25 (Court was in recess at 10:51 AM.)
36

1 C E R T I F I C A T I O N

2 I certify that the foregoing is a correct transcript from

3 the record of proceedings in the above-entitled matter.

5
Digitally signed by Johanna
6 August 28, 2024 Johanna Masse Masse
___________________________
Date: 2024.08.28 13:35:17 -04'00'
Johanna Massé, RMR, CRR
7

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