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U.S. v. FRANCIS

United States District Court, Southern District of New York


March 27, 2003

UNITED STATES OF AMERICA, AGAINST MICHAEL FRANCIS, DEFENDANT.

The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.

SENTENCING OPINION

Defendant Michael Francis ("Francis") pled guilty on July 26, 2002 to conspiring to steal the property of a healtheare benefit program in violation of 18 U.S.C. § 371, and stealing checks payable to healtheare providers, in violation of 18 U.S.C. § 669, valued at over $800,000. For the reasons set forth below, Francis will be sentenced to 51 months on each count, to be served concurrently, to be followed by 3 years supervised release on each count, to be served concurrently. Pursuant to 18 U.S.C. § 3013, a special assessment fee of $200 is mandatory.

The Defendant

Michael Francis was born on May 30, 1969 in New York, New York to Lawrence Francis and Ivy Florence. He has several half-siblings as a result of his mother's consensual relationships and several step siblings, who reside in Tampa, Florida, as a result of his fathers marriage. The defendant's father passed away in August 2002, due to cancer, and the defendant's mother, in her 50's, does not work due to physical and psychological problems. She resides in the Bronx, New York.

Francis described his childhood as tumultuous as his mother and father both had drug addictions, and his mother was periodically hospitalized for emotional and psychiatric problems. During his mother's hospitalizations, Francis was placed in shelters or foster care homes. Francis resided with his mother until the seventh grade when he went to live with his father and his family in Central Islip, New York. He claimed that during this time, his father did not take drugs, but often drank and was an alcoholic. Francis' mother claimed that the father was a cocaine abuser and shared drugs with Francis. According to Francis, his mother was a heavy heroin user, but she is presently "clean."

Francis reported that in 1999, he married Senora Thompson, but that he has not seen Mrs. Thompson since two months following their wedding. Francis has been in a consensual relationship for approximately two years with Azalili Tas ("Tas"), age 34, a hospital employee.

Francis has one child as a result of his consensual relationship with Yolanda Oaks. Lexus Ivy Francis, age six, resides with her mother in Central Islip, New York. Francis indicated that he has a good relationship with his daughter, although he does not speak with her mother due to previous disagreements. Francis has prior convictions for assaulting Mrs. Oaks.

Francis first tried marijuana, provided to him by either his mother or brother, when he was nine years old, and he first tried cocaine at the age of 18. At the time of his arrest, Francis used marijuana "almost everyday" and used cocaine on a regular basis, often mixing the two.

Francis graduated from Central Islip High School in 1987. He ranked 241 in a class of 313 students and was above average in math ability. From approximately June 2001 until his present arrest, Francis was an employee for Manpower, a temporary placement agency, located in Albany, New York. He was placed at Xerox, which had a contract with BlueCross BlueShield.

Francis has 18 prior known criminal convictions.

The Offense

Francis, along with co-defendants David Weisz and Michael Smith, participated in a scheme in which checks issued by Empire BlueCross BlueShield were stolen. The three defendants planned to cash the stolen checks and split the proceeds. Francis worked at a check production facility, and he was responsible for stealing the checks before they were mailed out. The investigation revealed that $816,049.61 in checks was stolen, although none of the checks were ever cashed and there was, therefore, no monetary loss.

The Guidelines

Section 3D1.2 (d) of the 2002 United States Sentencing Guidelines provides that the two counts of conspiring and theft are grouped when the offense level is determined largely on the basis of the total amount of harm or loss. The guideline for a conspiracy violation of 18 U.S.C. § 371 (Count One) is found in § 2X1.1 which refers to the base offense level of the substantive offense. The guideline for theft (the substantive offense) is found in § 2B1.1. In addition, the guideline for a violation of 18 U.S.C. § 669 (Count Two) is found in § 2B1.1. This section provides for a base offense level of six, pursuant to § 2B1.1(a).

Section 2B1.1 (b)(1)(H) provides for incremental increases based upon loss. Because the offense involved an intended loss of more than $400,000 but less than $1,000,000, fourteen levels are added. Based on acceptance of responsibility, three levels are subtracted, resulting in an adjusted offense level of 17.

Francis has a substantial number of prior arrests and convictions, inter alia for harassment, assault, and narcotics. Francis's criminal convictions result in criminal points of 25. According to the sentencing table at Chapter 5, Part A, 25 points establish a Criminal History Category of VI.

Based on a total offense level of 25 and a Criminal History Category of VI, the Guideline range for imprisonment is 51 to 63 months.

The Sentence

Francis will be sentenced to 51 months on each count, to be served concurrently, and three years of supervised release on each count, to be served concurrently. Francis is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Francis shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive devise.

In addition, the following special condition will be imposed. Francis will participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol. Francis will be required to contribute to the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment.

A special assessment fee of $200 is mandatory and is due immediately.

This sentence is subject to modification at the sentencing hearing now set for April 15, 2003.

It is so ordered.

20030327

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