United States District Court, D. Colorado
MEMORANDUM ORDER ON SENTENCING
L. KANE, SENIOR U.S. DISTRICT JUDGE
19, 2017, after a five-day jury trial, Defendant Cameo
Williams, Sr. was found guilty of making a single false
statement under 18 U.S.C. § 1001(a)(2). Mr. Williams
falsely claimed to a benefits decision review officer of the
U.S. Department of Veterans Affairs (VA) that he had deployed
during his military service. The maximum sentence for Mr.
Williams's conviction is five years of imprisonment with
a fine of up to $250, 000.
preparation for his sentencing, I have reviewed the Amended
Presentence Investigation Report (PSIR) (ECF No. 155) and its
four Addenda (ECF Nos. 154, 156, 160, & 163),
Defendant's objections to the PSIR (ECF No. 151),
Defendant's Sentencing Memorandum and Motion for a
Variant Sentence (ECF No. 152), the government's
Sentencing Statement (ECF No. 135) and Supplement thereto
(ECF No. 158), and Mr. Williams's Objection to the Third
Addendum to Presentence Report (ECF No. 161).
listened to the government's sentencing witness, Rebecca
Kelley, Timika Williams's and Mark Bynog's statements
to the Court, the arguments of counsel, and Mr.
Williams's allocution. The following explicates my
October 24, 2017, I issued an order (ECF No. 144) rejecting
the initial PSIR due to its unreliability and lack of
necessary information. In that same order, I notified the
parties that I would not be sentencing Mr. Williams pursuant
to the U.S. Sentencing Guidelines. I explained:
With respect to my decision not to use the Sentencing
Guidelines, it is because I find them to be generally
illogical and wholly inadequate under the present
circumstances. “Perhaps the most fundamental flaw in
the Sentencing Guidelines is that they are based on the
assumption that you can, in the name of reducing disparities,
isolate from the complexity that every sentence presents a
few arbitrary factors to which you then assign equally
arbitrary weights-and somehow call the result
‘rational.'” Judge Jed S. Rakoff, Why the
Federal Sentencing Guidelines Should Be Scrapped, 26
Fed. Sent. R. 6, 7 (2013). But I am sentencing a person, not
a widget. The “few arbitrary factors” represented
in the Probation Office's Guidelines calculation in this
case do not even come close to encompassing its full
complexity. Among other factors, they do not take into
account Mr. Williams's mental status and likely need for
treatment, his intent, his military service, his family
circumstances, or the benefits, if any, he loses as a result
of this conviction. Furthermore, I cannot emphasize enough
the arbitrariness of the determination that commission of the
same crime should result in a period of incarceration of 15
to 21 months when the economic loss is more than $95, 000 but
less than $150, 000 yet should only result in a period of 6
to 12 months when the loss is more than $15, 000 but less
than $40, 000. See Id. (providing examples of the
unjust sentences that result from applying the Sentencing
Guidelines in cases involving economic crimes). Under the
calculation in the Report, ten of the 16 offense level points
used to determine Mr. Williams's Guidelines range result
from the amount of the economic loss the government alleges.
That amount does not in any way, however, “fairly
convey the reality of the crime or the criminal.”
See Id. Thus, I will not be using the Guidelines.
on Rejection of PSIR at 4-5. I iterate that the disparity in
the Guidelines ranges caused solely by slight differences in
the loss that occurred, or that was even just intended, is
nonsensical and unjust. If ever there were a case not to
apply the Sentencing Guidelines, it is this case.
I must first determine the correct Guidelines range for Mr.
Williams's sentence. See Molina-Martinez v. United
States, 136 S.Ct. 1338, 1342 (2016). The Probation
Office of the District of Colorado has calculated the range
to be 15 to 21 months' imprisonment based on a total
offense level of 14 and a criminal history category of I. The
base offense level for Mr. Williams's conviction is six.
So eight of the offense level points attributed to him result
from the Probation Office accepting the government's
allegation that he intended to cause the Veterans
Administration a loss of $137, 537.53, including the actual
loss of $68, 632.12 in funds he inappropriately received.
Objections to the PSIR, Mr. Williams argues that (1) the jury
did not make any findings regarding the loss amount, (2) any
statement he made other than the one for which he was
convicted should not be considered relevant conduct, (3) the
PSIR lacks particularized findings in support of its
conclusion, (4) the government has not established by a
preponderance of the evidence or provided discovery on the
amount of the loss, (5) the Guidelines define loss as the
greater of actual loss or intended loss, not the sum of the
two; and (6) in government benefits cases, the loss is the
difference between the amount of benefits the defendant
should have received and did receive. It is not necessary for
the jury to have made findings regarding the loss amount for
the purposes of determining the applicable Guidelines range;
I need only find that amount based on a reasonable estimate.
See United States v. Wilfong, 475 F.3d 1214, 1217-20
(10th Cir. 2007); U.S.S.G. § 2B1.1 app. note 3(C).
Although statements other than the one for which Mr. Williams
was convicted cannot be considered for restitution purposes,
his other statements regarding deployment are relevant
conduct as to the intended loss under the Guidelines even if
the jury made no findings regarding it. See United States
v. Griffith, 584 F.3d 1004, 1012-14 (10th Cir. 2009).
However, Mr. Williams is correct that the government bears
the burden of proving the amount of the loss by a
preponderance of the evidence. See Id. at 1011.
the Guidelines, “loss is the greater of actual loss or
intended loss.” U.S.S.G. § 2B1.1 app. note 3(A).
Actual loss is the “reasonably foreseeable pecuniary
harm that resulted from the offense, ” while intended
loss is “the pecuniary harm that the defendant
purposely sought to inflict” including “intended
pecuniary harm that would have been impossible or unlikely to
occur.” U.S.S.G. § 2B1.1 app. note 3(A). In a case
involving government benefits, “loss shall be
considered to be not less than the value of the benefits
obtained by unintended recipients or diverted to unintended
uses.” Id. § 2B1.1 app. note. 3(F)(ii).
sentencing hearing, Rebecca Kelley, an authorization quality
review specialist for the VA, testified regarding the amount
Mr. Williams received, the additional amount he sought to
receive, and the amount he should have received independent
of any service-connected PTSD rating. Mr. Williams
successfully pointed out discrepancies in the
government's exhibits documenting those amounts. I find
the government has established the loss amount to be $68,
177.37,  which causes the overall offense level for
Mr. Williams to be lower than that provided by the Probation
Office. The government has failed to show to any degree of
certainty any additional intended loss by Mr. Williams such
that the loss amount should exceed the value of the benefits
obtained by him as an unintended recipient.
Mr. Williams objects to the Probation Office not lowering his
offense level for his acceptance of responsibility. Mr.
Williams attempted to plead guilty prior to his trial but was
thwarted in that effort by government insistence on limiting
the legal issues he wished to preserve for appeal. He did in
fact file a notice of disposition that clearly manifests his
acceptance of responsibility. Mr. Williams's offense
level should be reduced two levels for his initial
willingness to plead guilty. See U.S.S.G. §
Williams's other objections to the PSIR are overruled.
The Probation Office was very thoughtful in its analysis, and
I am confident in its determinations.
on my findings regarding the loss amount and Mr.
Williams's acceptance of responsibility, the total
offense level for Mr. Williams is 10, making the proper
Guidelines range 6 to 12 months' imprisonment with a fine
range of $2, 000 to $20, 000.
stated above, however, I do not sentence Mr. Williams
pursuant to the Guidelines. And I would not regardless of
what the correct range was found to be. Instead, I sentence
Mr. Williams based on an individualized ...