Articles Posted in Federal Sentencing

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Harlem Suarez appealed was sentenced to life in prison without parole following his conviction for one count of attempting to use a weapon of mass destruction in violation of 18 U.S.C. 2332 and one count of attempting to provide material support to a foreign terrorist organization, ISIS, in violation of 18 U.S.C. 2339B.  A jury found him guilty following an eight-day trial.

In his appeal he argued the evidence was insufficient to support his conviction for attempting to uses a weapon of mass destruction. The statute has a jurisdictional element, which requires that the offense, in this case an attempt, would have affected interstate or foreign commerce. Suarez argued the government was required to prove a substantial effect on interstate commerce to satisfy the jurisdictional hook. The court of appeals disagreed by holding that the government only had to prove that a de minimis effect on interstate commerce satisfies the jurisdictional element. Because the minimal effect standard is a low bar, the court found the government presented sufficient evidence that a terrorist bombing in Key West would have had at least a minimal effect on interstate commerce.

Suarez also argued the evidence was insufficient to support his conviction to support a foreign terrorist organization. He claimed that Suarez did not coordinate or directly contact an actual foreign terrorist organization because he had contact only with the government informant and undercover agents. The court rejected this challenge finding that it is irrelevant that he did not make contact with ISIS because the law requires only that Suarez directed or attempted to direct his services to ISIS. Suarez’s mistaken believe that the government informant and the undercover agents were actual ISIS agents is not a defense to his attempted crime. He had the requisite intent to coordinate with ISIS and he took substantial steps to do so. The court found there was substantial evidence Suarez knowingly provided material support to a foreign terrorist organization and for attempting to use a weapon of mass destruction.

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Defendant Whitman started a trucking company called United Logistics. To increase business and profits he bribed three employees of the federal Defense Logistics Agency to steer transportation contracts his way.  Whitman was convicted of federal crimes including bribery, wire fraud, and obstruction involving government contracts and took this appeal.

The evidence at trial showed that for about four years Whitman’ scheme defrauded the United States of more than $15 million by bribing three employees of the Defense Logistics Agency on a Marine Corps base to use his trucking company to ship military equipment around the country.

Because the Department of Defense hired an outside company to book shipment carriers, the four schemers devised shipment requirements that all but guaranteed that United would receive assignments. Yet Whitman rarely if ever satisfied the special requirements the Defense Logistics Agency imposed. Furthermore, Whitman’s company only owned two trucks and his assistant would have to hire other trucking companies to handle the shipments he contracted with the Defense Department.

Although the Defense Logistics Agency employees never discussed with each other the specifics of their individual arrangements with Whitman, they knew about the criminal conduct of their coconspirators. Whitman told the others that McCarty was working for him and that he was paying McCarty to get him as many loads as possible. One of the coconspirators was McCarty’s supervisor and he frequently reviewed McCarty’s work and had identified fraudulent activity without taking any corrective measures.

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Nelson Machado lived in Orlando, Florida from 2005 through 2009, then moved to Bradenton, Florida, before he moved back to his native Brazil in December of 2009, to work as a pastor in Brazil. In April of 2010, he was indicted for three counts of wire fraud. The indictment charged him with wire fraud in violation of U.S.C. section 1343 accusing him of making false representations as part of a scheme to obtain mortgage loans. The evidence showed he applied for and obtained three mortgage loans worth a total of $739,900. When he applied for the loans Machado had a monthly salary of $3,000 and very little savings. The monthly payments for those three loans totaled $5,322.00. The properties he purchased with the loans were located in Cape Coral, Florida and valued at $509,900 with first and second mortgages totaling $490,000. The false statements he provided were that he was the manager of a tile corporation with $79,949 in personal savings. He also provided false documents regarding his employment and bank account.

He then contracted to purchase a second property and applied for a $249,900 mortgage loan. As in the first property, he provided false statements about his employment and his bank account with false documents to back it up. On top that, he failed to disclose the financial details of his first property purchase, indicating that it would be his primary home.

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In this appeal Mathews Martinez appeals his 60 month sentence for his conviction for intentionally causing damage to a protected computer of the Department of Veterans Affairs and resulted in the modification and impairment of the medical care of an individual and for knowing altering ad making a false entry in date stored within the Department’s computer system with the intent to impede obstruct and influence the investigation and proper administration of a matter within the Department’s jurisdiction. Mathews was a nurse in the surgical intensive care unit of the VA hospital who did not record the changes in the patient’s vital signs during his stay in intensive care following heart surgery. Later the patient died of heart failure. When Matthews returned to work, he was confronted about the patient’s care. Knowing there would be an investigation, he went back into the patient’s records and entered numbers and notations.

Mathews challenged his enhanced sentence the court found that he did alter a substantial number of records and he altered essential and probative records. The court also enhanced his sentence because his victim was vulnerable and Mathews was in charge of the patient’s care. The court also determined that he tested positive for cocaine while on bond and found that it lacked any authority to grant him acceptance of responsibility reduction in his guidelines. The court ultimately found the guidelines range was insufficient and varied upward to a 60 month sentence.

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Presendieu and Jean were indicted on bank fraud conspiracy and aggravated identity theft for participating in a check cashing scheme where they cashed fraudulent checks at Kwik Stop Food Store owned by Habib. Presendieu pled guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. 1349 and aggravated identity theft in violation of 18 U.S.C. 1028A. As part of his guilty plea Presendieu signed a seven page detailed Factual Proffer in Support of Guilty Plea admitting his participation in Habib’s illicit check cashing services by cashing stolen checks with forged endorsements and using false identification documents to cash them. He then entered his guilty plea colloquy pursuant to Rule 11.

In his appeal Presendieu complains that his guilty plea was procedurally defective and unconstitutional because the district court failed to inform him of the nature of the charges, never outlined separately each element of his two offenses, and never asked him whether he understood those elements. He did not raise these objections before the district court and raised them for the first time in his appeal to the Eleventh Circuit Court of Appeals.

The appellate court concluded that the district court did not commit plain error under Rule 11 or under the constitution in accepting Presendieu’s guilty plea. It found that Presendieu was aware of the charges to which he plead guilty, he was sufficiently intelligent to understand the nature of those charges, he understood that the facts set forth in the factual proffer established that he was guilty of those two particular offenses, he had discussed the two charges and the facts in the proffer with his attorney, and he intelligently pled guilty to both charges in the plea agreement.

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George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.

The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon. Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.

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George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.

The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon.

Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.

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Sami Osmakac was convicted and sentenced to 42 years in prison following a 10-day trial for attempting to carry out a terrorist plot in Tampa, Florida, and for possessing a firearm not registered to him. After the F.B.I. received a tip from a confidential informant a store owner selling trinkets and food items from the Middle East, reported that Osmakac asked about purchasing black flags referring to flags used by a variety of Islamist political movements, the store owner became a confidential source of information after gave Osmakac a job in his store. The F.B.I. began recording numerous conversations in which Osmakac discussed his plans to commit a several violent terrorist attacks in the Tampa area. Osmakac also made attempts to obtain guns from various individuals. Osmakac was charged in a two count indictment with committing one count of knowingly attempting to use weapons of mass destruction, specifically explosives grenades and similar devices in violation of 18 USC 2332 and with possessing a firearm not register to him ,specifically a AK-47 machine gun in violation of 26 USC 5861(d).

Prior to trial, the government informed Osmakac it planned to offer evidence of information obtained from electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (FISA) during the time that Osmakac was being observed. Osmakac filed a motion asking the trial court to order the government to disclose certain FISA materials including the underlying search warrant applications and orders issued by the FISA Court. The district court reviewed the requested materials, in camera and ex parte, and determined that there was no valid or legal reason for disclosing any of the FIA materials. Osmakac challenged the district court’s decision denying him access to the FISA applications and supporting documents and the FISA Court’s order authorizing the surveillance of Osmakac, who was a U.S. citizen. Osmakac argued that he wanted to review the applications and orders to determine whether the surveillance and searches were in fact legal.

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In U.S. v Wright the defendant Wright pled guilty to conspiracy to commit wire fraud and aggravated identity theft by filing fraudulent tax returns in the name of identity theft victims in order to obtain the refunds in violation of 18 USC §1349 and possessing 15 or more counterfeit and unauthorized access devised with the intent to defrauds in violation of 18 USC §1029. Other counts involved possession of names and social security number of five different people. The factual proffer of the plea agreement revealed that the IRS discovered fraudulent returns coming from the same Interne Protocol (IP) address what turned out to belong to a Florida apartment that was rented by Wright. The IRS agents executed a search warrant at the apartment where they found person identifying information PII for thousands of people in a number of places in the apartment. After seizing and analyzing the documents, the IRS determined there were 12,124 identities, 331 debit of credit cards containing account information and 2,090 identities found on the computers and flash drive.

The district court sentenced Wright to 84 months. Because the intended loss on all the tax returns totaled $868,472 plus an additional $6,905,500 representing $500 for each of the 13,811 remaining compromised identities found in the apartment. The issue on appeal was whether the loss amount calculated for determining Wright’s sentencing should the $500 amount for each of the remaining 13,811 compromised identities. The appeals court refined the issued by asking whether the 13,311 compromised identities qualified as “access devises” under any part of the definition for access devices as given in the sentencing guidelines. While the court of appeals found the 331 debit or credit cards and numerous social security number are access devises, the question became whether the other thousands of compromised identities which were described only as “personal identifying information.”

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David Ryan Alberts was sentenced to 120 months after pleading to receiving and possessing child pornography. Albers was arrested after F.B.I. agents in Orlando Florida went to Albert’s home and where he admitted accessing and receiving and possessing child pornography as long as 15 years ago. They discovered over 160 images on his thumb drive. Albert also admitted having engaged in sexual acts with his younger relatives on different occasions when they were under the age of 12 and when he was approximately 16 years old. The PSR also said that he admitted to searching for images depicting incest and law enforcement agents found numerous incest related stories on his thumb drive. Based on his teenage sex acts with his younger relatives, the PSR assessed a five-level increase to his offense level under section 2G2.2(b)(5) of the guidelines for engaging in a pattern of activity involving sexual abuse or exploitation of a minor.   This gave him a range of 135-168 months. At his sentencing, he challenged the application of this enhancement though he did not challenge the factual accuracy of this history. The district court granted the defendant’s motion for downward departure and imposed a sentence of 120 months.

Albert challenged the five-level enhancement his sentence on several grounds. First, he argued that the government did not produce sufficient evidence to justify the enhancement. But the court concluded that Alberts did not object at sentencing to the statements in the PSR regarding his past sexual activity. Furthermore, his admissions were corroborated by his long-standing preoccupation with incest and pedophilia. Therefor the appellate court found the district courts findings of fact regarding the enhancement were not erroneous.

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