ROBERT W. SWEET, District Judge.
On January 18, 2013, Eliot Villar a/k/a Jesus Diaz ("Villar" or "Defendant") pleaded guilty to one count of conspiring to commit wire fraud and bank fraud in violation of 18 U.S.C. §§ 1343 & 1344, and one count of possessing, using and transferring, without lawful authority, a means of identification of others to conspire to commit wire fraud and bank fraud, in violation of 18 U.S.C. §§ 1028A(a) (1) & (c)(5).
For the reasons set forth below, the Defendant will be sentenced to 57 months of imprisonment and three years of supervised release.
On April 30, 2009, a five-count indictment, 09-CR-435 (RWS) (the "Indictment"), was filed in the Southern District of New York, charging as follows, in pertinent part:
On January 18, 2013, the Defendant appeared before the Honorable Kevin Nathaniel Fox in the Southern District of New York and allocated to Counts One and Four, pursuant to a written plea agreement which contained the following stipulations:
The Defendant's sentencing is currently scheduled for June 6, 2013.
In accordance with the Supreme Court's decision in
18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See
The Court adopts the facts set forth in the Presentence Investigation Report ("PSR") with respect to the Defendant's personal and family history.
The following description draws from the PSR. The specific facts of the underlying conduct are adopted as set forth in that document.
Hector Castillo Guante ("Guante") lived in Pennsylvania with Yolandy Torres, who is the daughter of Guante's wife. It appears from the evidence in the investigation that Torres acquired the identification information for several individuals from a source in Puerto Rico named Isaias LNU.
Guante did favors for Torres that he knew to be illegal, and Torres did not charge him rent or other expenses. Some of those favors included depositing tax refund checks in other people's names into bank accounts in other people's names, which constitutes bank larceny.
On February 6, 2008, Guante emailed names, dates of birth, and social security numbers of approximately nine victims to Villar in the Bronx, New York. (Guante asserted that it was his co-defendant, Torres, who utilized his e-mail account to e-mail the victim information to Villar.)
On February 13, 2008, Villar submitted an electronic application in the name of an individual ("Victim-1") from Villar's apartment in the Bronx, New York to Capital One Auto Finance ("Capital One") in Plano, Texas for a car loan for approximately $30,000.
On February 14, 2008, Capital One issued a loan in the name of Victim-1 for approximately $30,000 in support of a purchase of a 2004 BMW 5451 in Miami, Florida.
On February 15, 2008, Villar emailed names, dates of birth, and social security numbers of approximately 10 victims from the Bronx, New York to Torres.
On February 29, 2008, a checking account at Wachovia Bank, N.A. ("Wachovia Account-1") was opened electronically in the name of Victim-1 and with an address in the Bronx, New York.
On March 14, 2008, a $9,100 check written out to "Silvia Ortiz Camacho" ("Victim-1 Check") from Wachovia Account-1, and with a memo line that reads "BMW 545 2004 - 1 Half," was deposited into a Wachovia checking account in the name of "Sylvia Ortiz Camacho" ("Wachovia Account-2") at a Wachovia branch in Allentown, Pennsylvania.
On March 15, 2008, Martinez, made a withdrawal in the amount of $4,500 from Wachovia Account-2 at the Allentown Wachovia Branch and another withdrawal in the amount of $4,500 at a Wachovia Branch in Wind Gap, Pennsylvania.
On May 12, 2005, Torres was issued an Ohio Temporary Instruction ID Card using the identification information of a victim.
According to the Government, Villar is held responsible for a loss of between $200,000 and $400,000, and also defrauded 10 victims as a result of his criminal acts.
Count One mandates a maximum term of imprisonment of 30 years, pursuant to 18 U.S.C. §§ 1343, 1344 and 1349. If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than five years, pursuant to 18 U.S.C. § 3583(b)(2). The Defendant is not eligible for probation because the instant offense is a Class B felony, pursuant to 18 U.S.C. § 3561(a) (1). The maximum fine is $1 million, pursuant to 18 U.S.C. §§ 1344 & 1349. In addition, a special assessment of $100 per count is mandatory, pursuant to 18 U.S.C. § 3013.
Count Four mandates a maximum term of imprisonment of two years, to run consecutively to any other term of imprisonment imposed, pursuant to 18 U.S.C. § 1028A. If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than one year, pursuant to 18 U.S.C. 3583(b)(3). This term, if imposed, would run concurrently with any term imposed with respect to Count One, pursuant to 18 U.S.C. § 3624(e). The Defendant is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561 (a) (2) and 18 U.S.C. § 1028A. The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571. In addition, a special assessment of $100 per count is mandatory, pursuant to 18 U.S.C. § 3013.
In addition, as a result of committing the offense alleged in Count 1, the Defendant shall forfeit to the United States, pursuant to 18 U.S.C. §§ 1963(a)(1)-(3), all property real and personal, involved in the offense or traceable to such offense. Pursuant to Rule 32.2, "[t]he Court must include the forfeiture when orally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture at sentencing. The Court must also include the forfeiture order, directly or by reference, in the judgment."
As set forth above, pursuant to the Defendant's plea agreement, his total offense level is 20.
The Defendant has no known criminal convictions. Therefore the Defendant has zero criminal history points and a Criminal History Category of I.
For a total offense level of 20 and a Criminal History Category of I, the guideline range for imprisonment is 33-41 months. In addition, for Count Four, 18 U.S.C. 1028A requires a mandatory two-year term of imprisonment to run consecutively to any other term of imprisonment imposed.
With respect to Count One, the guideline range for a term of supervised release is at least two years but not more than five years, pursuant to §5D1.2(a)(1). The Court shall order a term of supervised release when required by statute (§5D1.1(a)(1)), or except for a deportable alien who is likely to be deported after imprisonment, when a term of imprisonment of more than one year is imposed (§5D1.1(a)(2)). Pursuant to §501.1(c), the Court should not ordinarily impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who is likely to be deported after serving a term of imprisonment. In any other case, the Court may order a term of supervised release, pursuant to §5D1.1(b).
With respect to Count Four, the guideline range for a term of supervised release is one year, pursuant to §5D1.2(a)(3). The Court shall order a term of supervised release when required by statute (§5D1.1(a) (1)), or except for a deportable alien who is likely to be deported after imprisonment, when a term of imprisonment of more than one year is imposed (§5D1.1(a)(2)). Pursuant to §5D1.1(c), the Court should not ordinarily impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who is likely to be deported after serving a term of imprisonment. In any other case, the Court may order a term of supervised release, pursuant to §5D1.1(b).
The Defendant is not eligible for probation under the Guidelines for Count One, because that offense is a Class B felony, pursuant to §581.1(b) (1). The Defendant is also not eligible for probation under the Guidelines for Count Four, because that offense is one for which probation has been expressly precluded by statute, pursuant to §581.1(b)(2).
The fine range for Counts One and Four is from $7,500 to $1,000,000, pursuant to §5E1.2(d)(7) and (c)(4). In addition, subject to the Defendant's ability to pay, in imposing a fine, the Court considers the expected costs to the Government of any imprisonment, probation, or supervised release pursuant to §5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,407.78 to be used for imprisonment, a monthly cost of $286.11 for supervision, and a monthly cost of $2,180.27 for community confinement.
Having engaged in the Guidelines analysis, this Court also gives due consideration to the factors identified in 18 U.S.C. § 3553(a) to impose a sentence "sufficient, but not greater than necessary," as is required by the Supreme Court's decision in
In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing,"
The Defendant in this case pled guilty to the crimes of (i) conspiracy to commit wire and bank fraud and (ii) aggravated identity theft. The Defendant engaged in a scheme in which he and others acquired the identification information of individuals without their knowledge, and subsequently used that information to defraud banks by causing the banks to provide the Defendant and his co-conspirators with loans for significant amounts of money. According to the Government, the Defendant's conduct resulted in a loss of between $200,000 and $400,000.
In addition, it is noted that during the course of the prosecution of this case, the Defendant fled the United States for the Dominican Republic after being released on bail following his arrest on the original complaint. The Defendant evaded arrest for four years before re-entering the United States and being arrested in Florida.
The instant offenses are of a serious nature, and involved significant harm to many innocent victims. However, the offenses represent the Defendant's first criminal conviction. Accordingly, in addition to the mandatory two-year term of imprisonment required with respect to Count Four, it is appropriate to sentence the Defendant to a custodial term of 33 months for Count One, which is at the low end of the Guidelines range for that count. This custodial sentence addresses the sentencing objectives of punishment and general deterrence. In addition, a three-year term of supervised release is appropriate to allow for monitoring of the Defendant's behavior, assistance in addressing his needs, and monitoring all aspects of the special conditions to be imposed. Based on the Defendant's lack of financial resources, no fine will be imposed.
For the instant offense, the Defendant is sentenced to (i) a term of imprisonment of 33 months for Count One, and (ii) a mandatory term of imprisonment of 24 months for Count Four, to run consecutively with the term for Count One, yielding a total custodial sentence of 57 months.
The Defendant is sentenced to a term of supervised release of three years. The Defendant is directed to report to the nearest United States Probation Office within seventy-two hours of release to commence his term of supervised release. It is recommended that the Defendant be supervised by the district of his residence.
As mandatory conditions of his supervised release, the Defendant shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; and (4) cooperate in the collection of DNA as directed by the probation officer. Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed, in addition to the following special conditions:
A special assessment of $200, payable to the United States, is mandatory and shall be due immediately.
Restitution is not imposed due to the length of time that elapsed since the Defendant's crimes, and the Government's resulting inability to confirm the loss amounts of the victims.
Due to the Defendant's limited assets, no fine is imposed.
The Defendant shall forfeit to the United States any and all property constituting and derived from any proceeds obtained directly or indirectly as a result of the instant offense, pursuant to 21 U.S.C. § 853. Pursuant to Rule 32.2, "[t]he Court must include the forfeiture when orally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture at the sentencing. The Court must also include the forfeiture order, directly or by reference, in the judgment."
The Defendant has been detained in federal custody without bail since July 13, 2012, and as such is not a candidate for voluntary surrender, pursuant to 18 U.S.C. § 3143(a)(2).
It is so ordered.
