Check out the guideline range.
Translation: The scheme was so stupid that Bank of America didn't cough up the $200 million. Therefore, my client should do the jail time associated with a $200 million attempted bank scheme.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA CASE NO 6:08-CR-177-ORL-35DAB
v
HARRY WILLIAM MARRERO
MR MARRERO’S MOTION FOR DOWNWARD DEPARTURE
MR MARRERO’S sentencing hearing is scheduled for Thursday morning, December 18,
2008 at 11:00 am before the Honorable Mary S Scriven. At present, the probation office is
suggesting a rather easy and straightforward score for Mr Marrero under the Sentencing Guidelines.
Using USSG § 2B1.1 in this bank fraud case, probation says that the base offense level should be
7. Then, probation states that the intended loss value for the case is $214,380,137; thus, there should be a 28-level enhancement for this amount of money. Subtracting three-levels for Mr Marrero’s acceptance of responsibility, probation recommends a total offense level 32, a criminal history category III, and an advisory prison range between 151 - 188 months or 12 years, 7 months to 15 years, 8 months.
Mr Marrero disagree somewhat with the scoring, in that, he assumes the position that he
should also receive a 2-level adjustment for his minor role in this scheme, pursuant to USSG §
3B1.2. So, Mr Marrero takes the position that his total offense level really should be 30, criminal history category III, and a range between 121-151 months (or 10 years, 1 month to 12 years, 7 years).
Moreover, Mr Marrero takes the further position that his case warrants and is deserving of
a downward departure. As such, Mr Marrero respectfully moves this Honorable Court for a
downward departure under USSG §§ 2B1.1 and 5K2.0. The two specific grounds on which the
Court may grant a downward departure include, but are not limited to, (1) the advisory Guidelines are greater than necessary or too draconian and the purpose of sentencing is satisfied by a sentence below the Guidelines; and (2) the intended loss table substantially overstates the amount of loss or the seriousness of the offense.
Application Note 19 to USSG § 2B1.1, subsection (C) contemplates that “There may be cases
in which the offense level determined under this guidelines substantially overstates the seriousness of the offense. In such cases, a downward departure may be warranted.” Mr Marrero posits his is such a case. The offense conduct is such that it may be boiled down to the following, i.e., that Mr Marrero agreed to deposit six drafts into a Bank of America account for his co-defendant, Angel Cruz (who, at present, remains a fugitive despite his plethora of filings in this case). The drafts, unfortunately, were bogus and fraudulent. Mr Marrero went to the bank and attempted to deposit the drafts as he was directed to do – significantly, the six separate drafts totaled more $200 million dollars. BUT, the drafts were not honored by Bank of America and Mr Marrero did not gain anything of benefit or value or, to say the least, any cash. The bank did not lose any money.
Said differently, the intended loss may be said to be more than $200 million dollars . . . the
actual loss, however, is $0. Mr Marrero’s case is a lot like the case of United States v Roen, a case out of the Eastern District of Wisconsin from 2003.
In United States v Roen, 279 F.Supp.2d 986 (E.D.Wis. 2003), the defendant there was
convicted of mail fraud. The district court found that the intended loss for purposes of the
Guidelines was approximately $1.2 million – “defendant . . . proceeded to write checks in the
amount of $1.2 million on the account as payment for various high priced items. None were
honored, and defendant failed to obtain any goods through the use of these checks.” Roen, 279 F.Supp.2d at 987.
The court went on to conclude, however, “that on the facts of this case a loss of over $1.2
million substantially overstated the seriousness of defendant’s offense. . . . Although defendant’s scheme was not so improbable as to defeat a finding of intent, it was such that the amount of loss bore little or no relation to economic reality.” Roen, 279 F.Supp.2d at 992-993. More importantly, “the discrepancy between the actual loss [in this case, which was about $19,000] and the intended loss – over $1.2 million – was extreme.” Id. at 993. The district court reasoned that the gross disparity between the figures at play seriously affected the fairness of the defendant’s sentencing. See id. (citing United States v Stockheimer, 157 F.3d 1082, 1092 (7th Cir. 1998)). Thus, the district court in Roen granted a nine level departure to account for the dramatic increase in the offense level based on intended loss. Roen, 279 F.Supp.2d at 993. See also, e.g., United States v McBride, 363 F.3d 360 (6th Cir. 2004)(in bad check and bankruptcy scam, remanded to district court to consider whether to depart under § 2B1.1 where intended loss of over $1 million substantially overstated actual loss of $800); United States v Redemann, 295 F.Supp.2d 887, 899 (E.D.Wis. 2003)(in bank fraud case where guidelines were 18-24 months for loss of 2.5 million, court departed downward two levels in part because loss significantly overstated seriousness of offense – a departure exists “when there is a gross disparity between the actual loss and the defendant’s intended loss”); and United States v Walters, 87 F.3d 663 (5th Cir 1996)(in money laundering case, district court reasonably departed downward by six months where defendant did not personally benefit from the fraud; lack of benefit was not considered by the Guidelines so USSG §5K2.0 authorized departure).
In the case at bar, it can more than easily be said that “[a]lthough Mr Marrero’s [offense] was not so improbable as to defeat a finding of intent, it was such that the amount of loss bore little or no relation to economic reality. . . . [Indeed], the discrepancy between actual loss [which is $0] and the intended loss [more than $200 million] was extreme.” Roen, 279 F.Supp.2d at 993. The scoring of Mr Marrero’s case under the Guidelines is so overly exaggerated as to fundamentally impair and adversely impact his right to a fair sentencing. Cf. United States v Stockheimer, 157 F.3d 1082, 1091 (7th Cir 1998). “In Stockheimer, for example, the intended loss was determined to be $80 million, yet the defendants’ take was perhaps $200,000. The court found that this evidence provided a ‘persuasive basis for the district court to consider a downward departure on the basis of the variance between the intended loss and the realistic possibility of such a loss. An $80 million loss may seriously overstate the seriousness of [the] offense.’” United States v Roen, 279 F.Supp.2d 986, 991
(E.D.Wis. 2003)(quoting United States v Stockheimer, 157 F.3d 1082, 1091 (7th Cir 1998)).
Said differently, “[t]he Stockheimer court held that given the gross disparity between the
figures in that case the district court’s erroneous conclusion that it could not depart seriously affected the fairness of the defendant’s sentencing. Refusal to depart in the present case would have similarly affected the fairness of the defendant’s sentence.” Roen, 279 F.Supp.2d at 992.
Here, the intended loss was more than $200 million. The actual take was $0. The case
involves no more than six bogus drafts and an attempt to deposit them at the bank in Orlando. Under all the surrounding circumstances and in light of the cited authority, this Court would be more than justified, fair, and reasonable in granting a downward departure. See United States v McBride, 362 F.3d 360, 375 (6th Cir 2004)(“Where sentencing is based largely or solely on intended loss, a downward departure may be warranted under the ‘economic reality’ principle.”)(citation omitted). Otherwise, “[r]efusal to depart in the present case [may] similarly affect[ ] the fairness of [Mr Marrero’s] sentence.” Roen, 279 F.Supp.2d at 992.
WHEREFORE, the Defendant humbly prays that this Honorable Court grant his motion
and depart downward from the suggested Guidelines score and range an impose a sentence
substantially less than what the Guidelines recommend.
I HEREBY CERTIFY that the foregoing motion for downward departure was electronically
filed this the 3rd day of December, 2008 with the Clerk of Court, Middle District of Florida using the Court’s CM/ECF system and as such the Clerk will provide electronic notice to the attention of Assistant United States Attorney Carlos Perez at carlos.perez5@usdoj.gov.
DONNA LEE ELM
FEDERAL PUBLIC DEFENDER
