We offer a sample sentencing analysis from one of our subject-matter experts. This document will help the defense attorney prepare an effective sentence-mitigation strategy on behalf of our clients. (This is a sample document, with all identifiable information removed)
Sample Sentencing Analysis on Letterhead of Former Federal Probation Officer
Dear Attorney Smith:
I have completed my analysis and review for potential sentencing and/or guideline issues of the documents you provided from your client’s case that is being prosecuted in the United States District Court for the District of (redact) before the Honorable (redact), U.S. District Judge. The documents reviewed consisted of the Criminal Complaint, the Affidavit in Support of Criminal Complaint and Arrest Warrant, the proposed Plea Agreement, and a NCIC printout of Mr. Doe’s prior arrests. Also, Maryland Case Search was reviewed for additional criminal history background information.
On November 15, 2019, John Doe. was charged in a Criminal Complaint with Wire Fraud, in violation of 18 U.S.C. § 1343.
The client began working at Business 1 as an office coordinator in January 2015. Mr. Doe was fired from Business 1 in October 2018.
On November 15, 2018, Business 1 reported to the FBI that Business 1 discovered some log discrepancies for deliveries to a site located in Frederick, Maryland. Business 1 found thousands of questionable shipping transactions in which Business 1 believed it had overpaid some of the shipping companies it used more than $1 million dollars.
Mr. Doe’s alleged offense conduct occurred from on or about February 17, 2018 to on or about August 20, 2018. Reportedly, the client coordinated with Business 2 to ship material for Business 1. Mr. Doe allegedly told Business 2 that he could provide employees to assist Business 2 with the additional shipping. Mr. Doe’s employees would work as subcontractors for Business 2.
Business 1 was unaware of Mr. Doe’s alleged arrangement with Business 2. Because the client was coordinating the going and coming of shipping from Facility 1, neither Business 1 nor Business 2 were able to monitor whether Mr. Doe performed any of the shipping services.
Allegedly, Mr. Doe invoiced Business 2 for the work his employees completed. Business 2, in turn, invoiced Business 1. Business 1 paid Business 2, and Business 2 paid the client for services that were never performed. Business 2 deposited $233,040 in bank accounts controlled solely by Mr. Doe. In total, Mr. Doe allegedly submitted approximately 2,118 fraudulent shipping tickets to Business 2 for services that were not actually performed and stole over $233,040.
Codefendants / Related Cases
Wire Fraud (18 U.S.C. § 1343) – Not more than 20 years incarceration, not more than 3 years supervised release, a fine not more than $250,000 or twice the gross gain (or loss) from the offense, and a special assessment fee of $100.
Impact of the Proposed Plea Agreement
The Government has proposed Mr. Doe agree to waive indictment and plea guilty to a One Count Criminal Information charging him with Wire Fraud, in violation of 18 U.S.C.
The Government and Mr. Doe stipulate and agree to the Statement of Facts set forth in Attachment A of the plea agreement.
At sentencing, both parties agree to reserve the right to advocate for a reasonable sentence, period of supervised release, and/or fine considering any appropriate factors under 18 U.S.C. § 3553(a). Mr. Doe reserves the right to appeal any term of imprisonment to the extent that it exceeds any sentence within the advisory guidelines range resulting from an offense level of 14. The Government reserves the right to appeal any term of imprisonment to the extent that it is below any sentence within the advisory guidelines range resulting from an offense level of 14.
There is no agreement as to Mr. Doe’s criminal history, and the client understands his criminal history could alter his offense level.
Mr. Doe agrees to forfeit all right, title, and interest to any money, property, and/or assets derived from or obtained by the client as a result of, or used to facilitate the commission of, the client’s illegal activities, including but not limited to a money judgment of at least $233,040 in U.S. currency. Mr. Doe waives all challenges to any forfeiture carried out in accordance to the Plea Agreement on any grounds and will not assist any third party with any challenge or review of any petition for remission of forfeiture.
Mr. Doe agrees to the entry of a restitution order for the full amount of the victim’s losses, which the parties stipulate is at least $233,040. There is no cooperation agreement in this case.
Based on the proposed Plea Agreement, the applicable base offense level is 7, pursuant to USSG §2B1.1(a)(1).
A 10-level increase to the offense level because the loss amount ($233,040) attributed to Mr. Doe was more than $150,000 but not more than $250,000, pursuant to USSG
§2B1.1(b)(1)(F). In the proposed Plea Agreement, it notes that this 10-level increase is pursuant to USSG §2B1.1(b)(1)(H). This appears to be a typographical error because the loss amount would have to be more than $550,000 for this guideline to be applicable.
However, I would note that the total amount of actual loss to Business 1 because of the client’s alleged conduct appears to be greater than $233,040. Business 1 paid Business 2 was paid $120 for each shipment. For each shipment “subcontracted” out to Mr. Doe, Business 2 paid Mr. Doe $110 per shipment. In total, Mr. Doe allegedly submitted approximately 2,118 fraudulent shipment invoices to Business 2 for payment. Business 2 invoiced Business 1 for these fraudulent shipments and would have been paid a total of
$254,160. Of that amount, Business 2 paid Mr. Doe $233,040 and kept $21,120. Pursuant to USSG §2B1.1, Application Note 3(A), loss is the greater of actual or intended loss.
Reportedly, Business 2 was unaware of the client’s alleged illegal conduct. Even if Business 2 repaid Business 1 the amount it received as a result of this alleged offense, the Sentencing Guidelines only allow for credits against loss if the money was returned prior to the detection of the offense, pursuant to
USSG §2B1.1, Application Note 3(E)(i). If a loss amount of $254,160 was attributed to Mr. Doe, a 12-level increase to the offense level would be applicable, pursuant to USSG §2B1.1(b)(1)(G). Since the Government did not make this determination in their proposed plea agreement, I only wish to bring this potential issue to the attorney’s attention and will not address it any further.
A -3-level decrease would be applicable if Mr. Doe fully accepts responsibility for his actions and accepts the Government’s plea offer in a timely manner.
Based on these findings, we believe Mr. Doe’s total adjusted offense level for this offense would be a 14 (with acceptance of responsibility in a timely manner) or 17 (without acceptance of responsibility).
A review of Mr. Doe’s NCIC rap sheet and Maryland Case Search only revealed two prior convictions: Attempted Murder – 2nd Degree & Use of a Handgun During a Crime of Violence (Circuit Court for Howard County, Maryland, Dkt. No.: 000001) and Driving Under the Influence of Alcohol Per Se (District Court for Baltimore County, Maryland, Dkt. No.: 020000).
Due to the sentences imposed for these convictions, we believe Mr. Doe’s conviction for Attempted Murder – 2nd Degree & Use of a Handgun During a Crime of Violence (Circuit Court for Howard County, Maryland, Dkt. No.: 000001) would be scored and receive three (3) criminal history points, pursuant to USSG §§4A1.1(a) & 4A1.2(e)(1). If Mr.
Doe w as released from incarceration for this offense prior to March 18, 2003, this conviction w ould not be scored, pursuant to USSG §4A1.2(e)(1). However, we were unable to determine the client’s date of release from prison based on the information available to us. Additionally, we are unable to determine if Mr. Doe allegedly committed this offense while under any criminal justice sentence, i.e.: parole, probation, or supervised release based on the available information.
The DUI – Alcohol, Per Se conviction (District Court for Baltimore County, Maryland, Dkt. No.: 020000) would also be scored and receive one (1) point, pursuant to USSG
Based on available information, we project Mr. Doe to have a total of four (4) criminal history points. This results in a Criminal History Category of III. If the client was on parole or probation when this instant offense allegedly occurred, two points would be added pursuant to USSG §4A1.1(d) for a total of six (6) points. However, there would be no change and his Criminal History Category would remain III.
**Please note that Mr. Doe’s Criminal History Score and Criminal History Category could change if the client has been convicted of additional crimes that we were not aware of when we wrote this report.
Not addressed at this time.
Should Mr. Doe plead guilty to Wire Fraud and accept full responsibility for his actions in a timely manner, the total adjusted offense level would be 14. With a projected Criminal History Category of III, the advisory sentencing guidelines range is 21–27 months incarceration, and the fine range is $7,500 to $75,000. Due to the applicable guideline range being in Zone D of the Sentencing Table, the minimum term shall be satisfied by a sentence of imprisonment, pursuant to U.S.S.G. §5C1.1(f).
Should Mr. Doe not be given credit for acceptance of responsibility, the total adjusted offense level would be 17. With a projected Criminal History Category of III, the advisory sentencing guidelines range would be 30-37 months incarceration, and the fine range is $10,000 to $95,000. The applicable guideline range is still in Zone D of the Sentencing Table.
I would note the advisory sentencing guideline ranges do not take into consideration any potential mitigating factors pursuant to 18 U.S.C. § 3553(a) that may result in a downward variance being imposed.
If you have any questions, please do not hesitate to contact me.
With kind regards,
(Retired Probation Officer Signature and contact information)