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United States v. Williams

United States District Court, D. Colorado

February 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CAMEO WILLIAMS, SR., Defendant.

          MEMORANDUM ORDER ON SENTENCING

          JOHN L. KANE, SENIOR U.S. DISTRICT JUDGE

         On June 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.

         In 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).[1]

         I have 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 sentencing decision.

         On 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.

         Order 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.

         Nevertheless, 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.

         In his 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.

         Under 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).

         At the 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, [2] 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.[3]

         Additionally, 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. § 3E1.1(a).

         Mr. 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.

         Based 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.

         As 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 ...


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