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United States District Court, Southern District of New York

March 27, 2003


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


Defendant Michael Smith ("Smith") pled guilty on July 30, 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, Smith will be sentenced to 46 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

According to Smith's birth certificate he was born on February 25, 1971 in Brooklyn, New York and was the only child born to Michael Seaberry and Brenda Louise Smith. Smith's father is retired from the military and resides in Houston, Texas, and his mother performs medical billing and resides in Brooklyn.

Smith described his childhood as difficult as he was raised by his mother and stepfather who, he says, were both addicted to cocaine. In addition, his stepfather was physically abusive, which led to Smith being placed in a foster home for a short period of time. Smith was also raised by his grandmother, Annabelle Smith, with whom Smith has a good relationship. Smith has five half-siblings.

Smith reports that he has been in a one and one-half year relationship with Rosalin Cooper, age 22, who works for a telephone company. Smith indicated that although they are not legally married, they were wed through a Muslim religious ceremony in March 2002. At the time of the presentence interview, Ms. Cooper was nine months pregnant with their child. She has since given birth to their son, Bilal Smith. Ms. Cooper remains very supportive of Smith, and Smith wants to reside with her once released from prison.

Smith reports that he has three other children: Michael Anthony Smith Jr., age 15, born to Devona Fulmore, age 31, of North Carolina; and Clarissa and Robin Smith, ages 12 and 13, born to Ayana Wrickett, age 30, of Brooklyn.

Smith obtained his high school equivalency diploma in September, 2002. He dropped out of high school after the 10th grade in 1986 because he was incarcerated. Smith has worked as a barber.

During the past three years, Smith volunteered at various middle schools and high schools and spoke with children, attempting to deter them from joining a gang or becoming incarcerated and encouraging them to invest in their education. He also volunteered once a week at I.S. 292 to work with at risk boys, ages 12-14.

Smith has four prior criminal convictions.

The Offense

Smith, along with co-defendants David Weisz and Michael Francis, 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. Smith served as the link between Michael Francis, who was responsible for stealing the checks and David Weisz, whose job it was to cash them. 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.

Smith has a substantial number of prior arrests and convictions, inter alia for possession of narcotics, grand larceny, possession of a weapon, and trafficking in a controlled substance. Smith's criminal convictions result in criminal points of 11. According to the sentencing table at Chapter 5, Part A, 11 points establish a Criminal History Category of V.

Based on a total offense level of 17 and a Criminal History Category of V, the Guideline range for imprisonment is 46 to 57 months.

The Sentence

Smith will be sentenced to 46 months on each Count, to be served concurrently, and three years' of supervised release on each count, to be served concurrently. Smith 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, Smith 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. Smith 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. Smith 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.


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