PAUL G. GARDEPHE, District Judge:
On February 6, 2014 — after a monthlong trial — a jury convicted Defendant Mathew
Sentencing is scheduled for September 8, 2014. This opinion addresses Martoma's objections to the calculation of gain under U.S.S.G. §§ 2B1.4 and 2B1.1(b) as set forth in the U.S. Probation Office's June 3, 2014 Pre-Sentence Report ("PSR").
Between 2006 and 2009, Martoma was employed as a portfolio manager at SAC Capital in Stamford, Connecticut. (Trial Transcript ("Tr.") 112-13, 117, 2106) Martoma analyzed and researched companies in the healthcare industry, with a focus on pharmaceutical firms. (Tr. 113-14, 2035-36).
As a portfolio manager at SAC Capital in 2008, Martoma was responsible for investing approximately $500 million. (Tr. 114-15, 427) The account that Martoma managed was known as the "GEHC" portfolio. (Tr. 118-19, 138, 436) In addition to directing trades in the GEHC portfolio, Martoma made investment recommendations to Steven A. Cohen, the founder and head of SAC Capital, for trading in Cohen's own portfolio the — "COHE" portfolio. (Tr. 116, 133-36, 171, 427-29, 434-38, 471, 2053, 2555-57) Cohen managed and traded one of the largest portfolios at SAC Capital. (Tr. 116, 428).
The evidence at trial showed that — during his tenure at SAC Capital — Martoma spent approximately two years cultivating relationships with two experts and practitioners in the field of Alzheimer's disease: Dr. Sidney Gilman and Dr. Joel Ross. (Tr. 588, 591, 613, 622-23, 626, 633-34, 1241-43, 1390) Pursuant to confidentiality agreements with Elan, both doctors had been given access to confidential information about the Phase II clinical trial of bapineuzumab. (Tr. 285-90, 293, 298-99, 631-32, 1189-90, 1274-76, 1380-81, 1390; GX 6; GX 20) Dr. Gilman served as the chair of the study's Safety Monitoring Committee ("SMC"), and Dr. Ross was one of the study's principal clinical investigators. (Tr. 566, 1175).
Through expert networking agencies, Martoma arranged numerous consultations with both doctors. (Tr. 557, 1240) Dr. Gilman alone had 43 sessions with Martoma, generally by telephone. (Tr. 1231-32; GX 601) The evidence showed that Dr. Gilman shared with Martoma confidential safety data concerning the bapineuzumab clinical trial. This data was disclosed to Dr. Gilman during SMC meetings, and Dr. Gilman generally shared this information with Martoma the day of the meeting or the next day. (Tr. 1272-76; GX 209; GX 210; GX 211; GX 212; GX 213; GX 601).
During the period that Martoma was obtaining confidential information from Dr. Gilman and Dr. Ross, SAC Capital amassed enormous positions in Elan and
In mid-2008, Elan asked Dr. Gilman to present the final results of the 18-month Phase II bapineuzumab trial at the International Conference on Alzheimer's Disease (the "ICAD conference"), in Chicago, on July 29, 2008. (Trial Tr. 1396) Dr. Gilman was unblinded to these data on July 15 and 16, 2008. (Tr. 1413) Analysis of the final results showed that the drug had not met the study's efficacy endpoints — i.e., the study's results did not indicate that bapineuzumab was efficacious for the treatment of Alzheimer's disease. (Tr. 692, 703, 1420-23) The data also showed no dose effect (i.e., administering more of the drug did not yield better results for patients), further suggesting a lack of efficacy. Finally, the mental condition of the placebo group in the non-gene carrier cohort
Elan provided the data to Dr. Gilman in the form of a draft PowerPoint presentation for the ICAD conference. Dr. Gilman testified that on July 17, 2008, he went through the data in the PowerPoint slides with Martoma by telephone. (Tr. 1424, 1439) The Government introduced telephone records showing that Dr. Gilman and Martoma had a one-hour and forty-five minute call that evening. (GX 1211).
The evidence further showed that that same day — July 17, 2008 — Martoma bought a round-trip ticket on Delta Air Lines for travel between JFK airport in New York and Detroit, Michigan, on Saturday, July 19, 2008. (Tr. 1950, 1952; GX 1307; GX 1308) The testimony of Dr. Gilman and a Detroit cab driver, University of Michigan access card logs, and cell phone tower records show that on Saturday, July 19, 2008, Martoma flew to Detroit and took a cab from the Detroit airport to the University of Michigan's campus in Ann Arbor. (Tr. 1453-56, 1968-69; GX 1210; GX 1307; GX 1400; GX 1401; GX 1402) There, he met with Dr. Gilman, at lunchtime, in Dr. Gilman's office. (Trial Tr. 1453-56) During this meeting, Dr. Gilman showed Martoma the PowerPoint slides containing the efficacy results, and discussed the data with him in detail.
Given that Martoma had studied potential treatments for Alzheimer's disease for more than two years, and had had countless consultations with medical experts, including Dr. Gilman, Dr. Ross, and others (Tr. 177, 588, 591, 601-16, 613, 626, 1235, 1390; GX 601; DX 791; DX 800), a reasonable jury could have concluded that Martoma had — by that time — a highly sophisticated understanding of the science
After his lunchtime meeting with Dr. Gilman, Martoma flew back to JFK airport that same afternoon. (Tr. 1952-53; GX 1307) The next morning, Sunday, July 20, 2008, he sent an email to the principal of SAC Capital, Steven A. Cohen, asking whether the two could speak by telephone that morning. (GX 459) In the subject line of the email Martoma wrote, "It's important." Telephone records introduced at trial show that the two men had a 20-minute conversation on Sunday, July 20, 2008. (GX 1215) The next day, Monday, July 21, 2008, SAC Capital began selling the approximately $700 million in Elan and Wyeth securities that it was then holding.
The evidence at trial showed that the sale of Elan and Wyeth securities was kept secret at SAC Capital. Martoma did not tell the research analyst (Kathryn Lyndon) and execution trader (Tim Jandovitz) who worked for him that the positions were being sold. Indeed, their computer monitors showed that Martoma's portfolio — the GEHC portfolio — was still holding these securities long after they had been sold. (Tr. 150-54, 2068-69, 2075-77) Only Martoma, Cohen, and Cohen's head trader — Phillip Villhauer — knew that these huge positions were being sold. (Tr. 2279-80) Longtime employees of SAC, including Chandler Bockledge — Cohen's "right-hand man" — testified that SAC had never sold positions in such a secret fashion before. (Tr. 2537, 2562-63, 2566).
On July 29, 2008, Dr. Gilman presented the efficacy results from the Phase II bapineuzumab study to the attendees of the ICAD conference. (Tr. 2381, 2395-96) Dr. Gilman's presentation began at about 5:15 p.m. Eastern Standard Time. (Tr. 2381, 2395-96) Elan's stock price began sliding even before Dr. Gilman had completed his fifteen minute presentation. (Tr. 2381, 2396; GX 1263) By the close of trading on July 30, 2008, Elan's stock had suffered a 42% decline. (Tr. 2379) Wyeth stock dropped about 12% that day. (Tr. 2383).
At trial, FBI Special Agent James Barnacle testified regarding the amount of profits and avoided losses associated with SAC Capital's trading in Elan and Wyeth securities during the week preceding the disclosure of the Phase II final results at the ICAD conference. (Tr. 2337-38) Agent Barnacle concluded that SAC's total profits and avoided losses from these trades amounted to approximately $275 million. (Tr. 2391; GX 1268) Defendant has not disputed this calculation.
The evidence also showed that Martoma received a $9,380,435 bonus from SAC Capital for 2008. (GX 555; GX 556) Several former employees of SAC Capital testified that portfolio managers at the firm received bonuses when Cohen was able to make profitable trades based on their recommendations. (Tr. 116, 429) Moreover, SAC Capital records introduced at trial
The Probation Office determined that Martoma has a base offense level of 8 under U.S.S.G. § 2B1.4(a), which applies to insider trading. (PSR ¶ 32) The Probation Office then increased Martoma's offense level based on the amount of gain resulting from his offense. See U.S.S.G. § 2B1.4(b)(1). The PSR calculates the gain resulting from Martoma's offense at $285.4 million. (PSR ¶ 33) This figure includes SAC Capital's total profits and avoided losses resulting from Martoma's insider trading — which total approximately $276 million
Under the Sentencing Guidelines, an illicit gain amounting to more than $200 million but less than $400 million results in a 28-level enhancement. U.S.S.G. § 2B1.1(b)(1)(O ). Accordingly, the Probation Office imposed a 28-level increase here, resulting in a total offense level of 36. (PSR ¶¶ 33, 40) Because Martoma has no criminal record, he falls within Criminal History Category I. (PSR ¶ 43) Offense level 36 at Criminal History Category I yields a Guidelines range of 188 to 235 months' imprisonment. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A. The Probation Office determined that this is the Guidelines range applicable to Martoma's offense. (PSR ¶ 85).
The Government agrees with this Guidelines analysis. (Govt. Br.(Dkt. No. 293) at 6).
Martoma objects to the Probation Office's analysis, arguing that (1) this Court should not consider the applicable Guidelines provisions, because they exaggerate Martoma's culpability; (2) the amount of gain under the Guidelines should reflect only Martoma's personal gain or — at most — the profits in the GEHC account that Martoma managed; and (3) the Probation Office's calculation of profit and avoided losses overstates the actual amount of gain. (Def. Br. (Dkt. No. 287) at 22-37).
"Although the [Sentencing]
Guidelines are no longer mandatory, the sentencing court must nonetheless consider the applicable Guidelines sentence and relevant policy statements before sentencing." United States v. Brady, 417 F.3d 326, 332 (2d Cir.2005). In determining the applicable Guidelines sentence, "district courts[ ] .... determine sentencing factors by a preponderance of the evidence." United States v. Vaughn, 430 F.3d 518, 525 (2d Cir.2005).
U.S.S.G. § 2B1.4 of the Guidelines governs the calculation of a defendant's offense level for insider trading. See U.S.S.G. § 2B1.4. "The Sentencing Guidelines require that the base offense level for insider trading be adjusted upward, using the loss table in [§ 2B1.1], according to the `gain resulting from the offense.'" United
Although the text of the Guidelines does not further elaborate on how courts should calculate gain, courts in this Circuit have looked to the commentary to Section 2B1.4 for guidance. See, e.g., United States v. Royer, 549 F.3d 886, 904 (2d Cir.2008) (applying commentary's definition of gain); Cusimano, 123 F.3d at 90 (citing the commentary to U.S.S.G. § 2F1.2, the identical predecessor to U.S.S.G. § 2B1.4); United States v. Gupta, 904 F.Supp.2d 349, 352 (S.D.N.Y.2012), aff'd, 747 F.3d 111 (2d Cir. 2014) (applying the commentary's definition of gain); Rajaratnam, 2012 WL 362031, at *1 (same).
The commentary to Section 2B1.4 states that
U.S.S.G. § 2B1.4 cmt.. Background. "[T]he comment limits the calculation to gains made or losses avoided in trades that were based, in whole or in part, on the inside information." Gupta, 904 F.Supp.2d at 352.
Martoma argues that "Probation's Guideline[s] Range should be disregarded [and] ... should not even form the starting point for the Court's analysis of a fair and just sentence in this matter." (Def. Br.(Dkt. No. 287) at 2) According to Martoma, this Court "should not credit the proposed Guideline[s] Range in any way," because the Guidelines' emphasis on gain resulting from the offense leads to "advisory sentence ranges that are unreasonably high and that fail accurately to reflect culpability." (Id. at 22, 26).
To the extent Martoma urges this Court not to consider the Guidelines in determining an appropriate sentence, that position must be rejected. "In arriving at a sentencing decision, the District Court must consider the now-advisory Guidelines, for they are the `starting point and the initial benchmark,' and are not to be treated as only a `body of casual advice.'" United States v. Bonilla, 618 F.3d 102, 109-10 (2d Cir.2010) (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Crosby, 397 F.3d 103, 113 (2d Cir.2005)) (internal citations omitted) (emphasis added); see also Gupta, 904 F.Supp.2d at 352 (although defendant's gain — which was calculated "almost exclusively on the basis of how much money his accomplice gained by trading on the information" — was best[ ] ... a very rough surrogate for the
Martoma argues that the PSR significantly overstates the applicable gain under U.S.S.G. § 2B1.4, because "SAC's profits ... should not be used to determine [his] Guideline[s] range." (Def. Br.(Dkt. No. 287) at 28) Martoma contends that "gain" — for Guidelines purposes — should be limited to his personal profits. (Id. at 27-28) Martoma calculates that amount to be $6.3 million, based on the $9,380,435 bonus he received from SAC Capital for 2008, less $3.1 million that he paid in taxes on the bonus.
Contending that only his personal profits should be included in the gain calculation, Martoma argues that "[d]etermining the Guideline[s] range based ... on the full amount of profits realized by all of SAC, as Probation suggests, would substantially overstate the seriousness of [his] conduct." (Id. at 27) Martoma has cited no case that stands for this proposition, however. Instead, in the cases he cites, courts granted a variance or a departure from a Guidelines range that reflected the full amount of illicit profit. See Gupta, 904 F.Supp.2d at 353, 355 (calculating Guidelines gain amount based on profits others realized from trading on inside information supplied by the defendant, but granting a variance from the applicable Guidelines range); United States v. Oakford Corp., No. 98 Cr. 144 (JSR), 1999 WL 1201725, at *1-2 (S.D.N.Y. Dec. 13, 1999) (calculating Guidelines gain based on full amount of profits realized by the conspirators, but granting a 13-level downward departure). Whether or not this Court later determines that a variance or departure from the Guidelines range is warranted, the Guidelines "gain" amount must be accurately calculated using the criteria set forth in the Guidelines.
As noted above, the commentary to Section § 2B1.4 states that "gain" includes "the total increase in value realized through trading in securities by the defendant and persons acting in concert with the defendant or to whom the defendant provide[d] inside information ...." U.S.S.G. § 2B1.4 cmt. Background (emphasis added). Courts in this district have concluded that "[i]t makes far more sense to interpret th[is] phrase ... as referring to the increase in value realized by the defendant or others' trading vel non rather than the value realized by the defendant himself from that trading." Rajaratnam,
Consistent with this interpretation, courts in this Circuit have repeatedly held that a defendant's gain — for Guidelines purposes — is not limited to his personal profit; gains realized by others as a result of the defendant's trading, or gains from trading based on inside information that the defendant supplied, are included in the gain calculation. See Royer, 549 F.3d at 904 ("given the fact that the insider trading scheme was clearly a joint endeavor among [defendant] and the AP site subscribers, it was appropriate to take into account the subscribers' trades" in calculating gain under U.S.S.G. § 2B1.4); Cusimano, 123 F.3d at 91 ("[t]he district court's determination that the trading profits of Corrigan and Thomas Flanagan should be attributed to appellant [for purposes of the Guidelines gain calculation] was not clearly erroneous," where the district court "[found] it likely that [appellant] provided information to Corrigan and his brother [Thomas Flanagan] or acted in concert with them"); United States v. Chiasson, No. 12 Cr. 121(RJS), 2013 WL 1878846 (May 13, 2013) (Sentencing Tr. 9, 15) (including in gain calculation profits of unindicted co-conspirator who traded on defendant's tips); Gupta, 904 F.Supp.2d at 352-53 (defendant tipper's "gain" under the Guidelines equals the amount of profit realized and losses avoided by funds that traded on the basis of defendant's tips); Rajaratnam, 2012 WL 362031, at *13-15 (rejecting Rajaratnam's argument that Guidelines gain should only reflect his personal profit, and holding defendant accountable for "the increase in the price of [the subject] company's shares from the time that [he] purchased them to the time that the public learned the inside information," regardless whether defendant, his hedge fund, or its investors "took home that increase in value"); United States v. Contorinis, No. 09 Cr. 1083(RJS) (Dec. 17, 2010) (Sentencing Tr. 19-20) ("[C]learly [gain under Section 2B1.4] need not be gain that was ultimately obtained or accessible or usable by Mr. Contorinis. It was just gain derived from the offense. [That] [t]he lion's share went to the funds that Mr. Contorinis managed and that they had an interest [in] is sufficient.").
Here, the gain resulting from Martoma's trading on material, non-public information about the Phase II bapineuzumab trial went well beyond the bonus that he received for 2008. Given that Martoma directed trading in the GEHC portfolio at SAC Capital, and given that his portfolio realized profit and avoided losses as a result of Martoma's trading on the basis of inside information (see Tr. 113-15, 118-19, 124-25, 130, 138, 151-53, 2076-77, 2385-87; GX 431; GX 1266), the sum of these profits and avoided losses must be included in the Guidelines calculation.
Martoma's arguments are not persuasive. While the Government has not argued that Cohen is a co-conspirator of
Martoma (see Govt. Br. (Dkt. No. 293) at 7), Martoma concedes that the Government need only show "for purposes of the Guidelines `gain' calculation ... that Mr. Cohen ... received inside information from Mr. Martoma." (See Def. Br. (Dkt. No. 287) at 29) There is a more than sufficient basis here for this Court to find — by a preponderance of the evidence — that Martoma provided inside information to Cohen, and that this information was the basis for Cohen and SAC Capital's subsequent trades in Elan and Wyeth securities.
Given this sequence of events, it is much more likely than not that Cohen did, in fact, receive material, non-public information from Martoma on July 20, 2008, and
Martoma argues that — even if this Court holds him liable for all of SAC's trading in Elan and Wyeth stock — the amount of gain is still less than $200 million. (Def. Br.(Dkt. No. 287) at 35) According to Martoma, the amount of SAC's gain from trading in Elan and Wyeth stock is "at most $131.9 million." (Id. at 37 (emphasis omitted)) Martoma argues that the PSR's calculation of "gain" is overstated because:
(See Def. Br. (Dkt. No. 287) at 35) Each of these arguments is meritless.
Martoma argues that any gain from his insider trading should be offset by approximately $75.6 million in losses that SAC Capital incurred in connection with equity swap positions that it held in Wyeth stock (collectively, the "Wyeth
The "gain" that is the subject of Section 2B1.4(b) is that which "result[s] from the offense" — that is, insider trading. See U.S.S.G. § 2B1.4(b). Accordingly, Guidelines "gain" under Section 2B1.4(b) is that which results from trading. See id. cmt. Background (defining gain as "the total increase in value realized through trading in securities ...") (emphasis added); see also Gupta, 904 F:Supp.2d at 352 ("[T]he comment limits the calculation to gains made or losses avoided in trades...") (emphasis added). Here, a defense witness — SAC Capital's general counsel — testified that there was no trading in connection with the Wyeth swap between July 21, 2008 and July 29, 2008. (See Tr. 2483; see also Tr. 2376, 2388-89; GX 1260) Accordingly, any losses that occurred during that period in connection with the Wyeth swap are not attributable to insider trading and are irrelevant to the Guidelines "gain" calculation. Stated another way, the fact that SAC Capital lost money on the Wyeth swap at the same time that it made a profit or avoided losses as a result of trading in Wyeth securities on the basis of inside information has no implications for calculating Guidelines "gain."
Martoma also argues that the Government's calculation of gain is overstated "because it fails to account for extrinsic factors unrelated to the charged insider trading." (Def. Br.(Dkt. No. 287) at 33, 36) More specifically, Martoma contends that the amount of gain should be reduced in light of market volatility in 2008. (Id. at 33-34) Martoma does not suggest what reduction should apply or propose any method for calculating this reduction. (See id.)
In any event, courts in this District have held that extrinsic market factors are irrelevant when calculating Guidelines "gain" in insider trading cases. See Rajaratnam, 2012 WL 362031, at *7-8. In Rajaratnam, the defendant argued that "the phrase `gain resulting from the offense' requires `separating the gains attributable to the prohibited conduct (i.e., trading stock on the basis of material, nonpublic information) from gains attributable to factors unrelated to that conduct, such as gains caused by exogenous market movements or events unrelated to the material, nonpublic information.'" Id. at *2. In rejecting Rajaratnam's argument, the district court observed that
[A] punishment that subjects one who commits that offense to the very market fluctuations his criminality enabled him to avoid seems like justice par-excellence.
See Rajaratnam, 2012 WL 362031, at *7-8.
The court reasoned that "since the defendant commits the `offense' [of insider trading] when he trades, it makes perfect sense that the Guidelines calculate the `gain resulting from the offense' as the total increase in value realized through trading in securities by the defendant.'" Id. at *8. "Since the plain meaning of `increase in value' is the difference between the purchase and sale price, the government's method [which does not exclude market factors] best accords with the plain language of the Guidelines." Id.
The Rajaratnam court also noted that — in determining "gain" for Guidelines purposes — insider trading cases are distinguishable from fraudulent misrepresentation cases, see id. at *6, such as those cited by Martoma here.
As the Rajaratnam court observed, "there is an important difference between fraudulent misrepresentation and insider trading cases: the inside trader does not cause the price of a company's stock to
Id.
In sum, in fraudulent misrepresentation cases, it makes sense to isolate the effect of the defendant's conduct on the market from other market forces, because the defendant's "offense" directly relates to the effect that his misrepresentations had on the market. See id. In insider trading cases, however, the focus is not on the effect of the defendant's trading on the market, but instead on the fact that the defendant has engaged in unlawful trading and benefited from it. Since the insider trading defendant stood to — and, presumably, hoped to — benefit from market forces, it is not unjust to refuse to exclude the effect of those same market forces in calculating the gain from his offense. Id. at *7 ("To be sure, there is a sense ... [that this] result subjects an insider trading defendant to market mysteries that are far more elusive than whether the bank vault will have any money. But that is hardly objectionable as a measure of the punishment for an offense that enables a defendant to avoid (or least minimize) those very same risks."); id. at *13 ("It hardly seems unjust to include those benefits in the calculation of his gain from an offense whose core is benefitting from an informational advantage."). The same rationale applies to avoided losses. Id. ("[J]ust as ... there is nothing unjust
Accordingly, Martoma's gain will not be reduced based on external market factors in 2008.
Martoma also argues that the Court should exclude Cohen and SAC Capital's trading in Wyeth securities from the gain calculation, because Cohen testified at a deposition before the Securities and Exchange Commission that the Wyeth trades were based on recommendations from Wayne Holman, and were not based on inside information provided by Martoma. (Def. Br.(Dkt. No. 287) at 36-37).
For the reasons set forth in this Court's January 7, 2014 Order (Dkt. No. 190), Cohen's deposition testimony on this point is neither persuasive nor credible. As the Court explained in that order,
(Jan. 7, 2014 Order (Dkt. No. 190) at 3-5 n. 1 (emphasis in original)).
Finally, even if Cohen's testimony was exculpatory of Martoma, "when Cohen's deposition was taken, SAC Capital-his company — was under investigation by the SEC for insider trading. Accordingly, Cohen had a strong motive to offer an exculpatory version of events at SAC." (Id. at 11) Cohen's SEC deposition does not alter this Court's conclusion that Cohen and SAC Capital's trades in Wyeth securities in late July 2008 were based on inside information that Martoma had supplied.
Martoma also argues that the Government's calculation of gain is incorrect because the Government used the closing prices of Elan and Wyeth stock on July 30, 2008 — the day after the final results from the Phase II bapineuzumab clinical study were announced — to calculate profits and avoided losses. (Def. Br.(Dkt. No. 287) at 31-33, 36) Martoma argues that use of the closing market prices at the end of the next trading day is arbitrary and unreasonable. (Id. 31-32) Martoma contends that "because it is impossible to pinpoint the precise moment when the alleged inside information was incorporated into Elan's and Wyeth's security prices, this Court should [instead] adopt the most conservative calculation of `gain,'" by using the "Elan and Wyeth prices on July 30, 2008, that result in the smallest profits and losses avoided...." (Id. at 32-33).
It is not necessary for this Court to choose between the competing methods proffered by the parties, however, because the amount of gain exceeds $200 million under either approach. In support of his gain calculations, Martoma has submitted a report from John F. Gould, an economic and financial consultant. (Def. Br.(Dkt. No. 287), Ex. 115 ("May 27, 2014 Gould Report")) In his report, Gould "calculate[d] losses avoided and profits for S.A.C. [Capital] as a result of the firm's trading in Elan
Gould concludes that SAC Capital's profits and avoided losses total $131.9 million. (Id. at ¶ 21) Gould's calculation is premised, however, on a deduction of $75.6 million for losses incurred as a result of the Wyeth swap. (See id. at ¶ 19 & tbl. 2) As discussed above, there is no basis for deducting losses associated with the Wyeth swap in calculating Martoma's gain. Without the $75.6 million deduction, SAC Capital's total gain under Gould's calculations amounts to $207.50 million.
The amount of illicit "gain" attributable to Martoma for purposes of the Sentencing Guidelines is more than $200 million but less than $400 million. Accordingly, a 28-level enhancement under U.S.S.G. §§ 2B1.4 and 2B1.1(b)(1)(O ) is appropriate. The Probation Office's Presentence Report properly concludes that the applicable range under the Sentencing Guidelines is 188 to 235 months' imprisonment. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A; (PSR ¶ 85).
SO ORDERED.
Rajaratnam, 2012 WL 362031, at *7; see also id. at *4-6.