JOHN L. KANE, Senior 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).
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:
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,
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 assessment of the criteria set out in 18 U.S.C. § 3553(a).
Of primary importance, Mr. Williams has no criminal history. There is evidence that he has or had a gang affiliation, including a gang identifying tattoo, but there is no evidence of his engaging in any criminal activity relating thereto. His childhood and adolescent environment is marked by dysfunction, perhaps subjecting him to physical abuse and clearly exposing him to traumatic events including multiple residences, inadequate supervision, violent deaths of relatives and violence in the communities in which he lived. Somewhat surprisingly, however, Mr. Williams has viable and productive relationships with his children, his mother, his wife and his former wife, and other relatives. Despite his limited income and occupational choices he is and has been a responsible provider and attentive parent. He has demonstrated concern and compassion for others less fortunate than himself and has long-range plans to enlarge his contributions to his community.
Mr. Williams would not be in front of this court facing sentencing were it not for his serious mental health needs. The various records, diagnoses, and evaluations he has received are muddled and inconclusive. I am most persuaded by the report of Dr. Jane Wells that his long listing of mental instability requires prolonged and intensive treatment. Dr. Wells notes anxiety disorder, depression, and perhaps a character disorder. Nonetheless, it is his weaving of false and fanciful concoctions—indeed outright falsehoods—that have brought him to the well of this court.
In addition to his serious mental health problems, Mr. Williams suffers from physical ailments that require continuing attention and care. He suffers from a chronic sleep apnea disorder that requires regular nocturnal use of a Continuous Positive Air Pressure machine (CPAP) without which fatal consequences can ensue. Inmates in the Bureau of Prisons have exceedingly limited access to CPAP therapy and this limitation presents an unwarranted danger to Mr. Williams's health. Mr. Williams also requires medical attention for and periodic evaluation of his patella femoral syndrome and tinnitus, which is often a side effect of chronic sleep apnea.
Under 18 U.S.C. § 3553(a), I am further required to consider the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to deliver just punishment, and to provide needed educational or vocational training, medical care or other correctional treatment. In addressing these criteria, I first note that no violence to person or property occurred. The gravamen of the crime is lying to a government official. There is no indication that the public needs protection or is in danger of violent behavior from Mr. Williams. He has complied with the conditions of his bond and terms of his pretrial and post-conviction release. A sentence other than imprisonment for a first offender convicted of a non-violent crime is favored. Besides, imprisonment is not the only means of punishment. As Justice Stevens wrote in Gall v. United States, "custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty." 522 U.S. 38, 48 (2007).
Throughout history, punishment has been curtailed or abated because of the defendant's need for treatment. What society needs and Mr. Williams needs directly is mental health treatment. The salient need for Mr. Williams to receive such prolonged treatment and the need for continuing treatment of his sleep apnea disorder can best be addressed while he is serving a sentence of probation rather than incarceration.
Moreover, Mr. Williams's analysis of the sentences for similar and even more aggravated convictions in this District demonstrates that a sentence of probation is appropriate:
Williams's Sentencing Memo. at 18-19, ECF No. 152. Since many of the defendants in the above cases with more egregious facts than the instant one received only one to three years of probation, I find a sentence of a term of imprisonment would cause sentencing disparity.
For these reasons and those put forward by Mr. Williams, his Motion for a Variant Sentence
Mr. Williams's Motion asks for a probationary sentence but does not specify the requested length of probation. He has been on pretrial release for almost two years and has been fully compliant. I am concerned, however, with the clearly established need for Mr. Williams to receive significant mental health treatment and, therefore, think it is in the best interests of society and indeed of Mr. Williams that the needed mental health treatment not be attenuated by a shortened term of probation. Therefore, I sentence the defendant to probation for a period of five years. In the event that the probation officer charged with supervising Mr. Williams on probation determines there is just cause for early termination that can be done on the basis of facts not yet available.
In addition to the standard conditions of probation ordered by this Court, the following rulings and orders shall obtain.
Defendant is advised of his right to appeal the sentence. If Defendant desires to appeal, a notice of appeal must be filed with the Clerk of the Court within 14 days after the entry of judgment or the right to appeal will be lost. If Defendant is unable to afford an attorney for an appeal, the Court will appoint one to represent him. If Defendant so requests, the Clerk of the Court must immediately prepare and file a notice of appeal on behalf of Defendant.
Order on Remand at 3, Nos. 11-cr-00104-JLK, 16-cv-00131-JLK, ECF No. 152.
