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U.S. v. CONNOR

United States District Court, S.D. New York


May 3, 2004.

UNITED STATES OF AMERICA, -against- DENISE O' CONNOR, Defendant

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

SENTENCING OPINION

Defendant Denise O'Connor ("O'Connor") pled guilty on February 5, 2004 to one count of Mail Fraud, in violation of 18 U.S.C. § 1341, and one count of Theft of Government Funds, in violation of 18 U.S.C. § 641. From approximately May 2003 through approximately August 2003, O'Connor engaged in a scheme to defraud the Lower Manhattan Development Corporation (the "LMDC") and the United States Department of Housing and Urban Development ("HUD") of grant money by making false representations in a grant application that she was renting and residing in an apartment on Catherine Street in Manhattan on or before September 11, 2001 and that she intended to reside at that address for two years commencing June 1, 2002. As a result, the LMDC mailed checks totaling $2,228.50 to O'Connor, constituting grant money from HUD to which she knew she was not entitled. O'Connor will be sentenced to time served to run concurrently with the sentence imposed in New York County Supreme Court (Ind. 4561-2003), to be followed by three years of supervised release. Restitution in the amount of $2,228.50 is ordered, and a special assessment fee of $200 is mandatory.

Background

  This statement of facts draws on the Presentence Investigation Report prepared by the U.S. Probation Office.

 The Defendant

  O' Connor was born in New York, New York on October 26, 1960, and is one of five children born to the union of John and Theresa O'Connor. O'Connor reported that she was raised in middle-class conditions in Manhattan and described her childhood and upbringing as "beautiful." She also reported that her mother died in 1998 after suffering from emphysema and her father died in 2002 after a battle with cancer.

  O'Connor reported that she graduated from the Saint Alphonse School in lower Manhattan in 1978, and that after high school she completed a training program in the care and transport of disabled persons.

  O'Connor advised that she has been married once and has no children. She married Gerard Hepsen in Arizona approximately four years ago. She believes her husband to be dead but is not sure.

  In or about 1992, according to O'Connor, she was struck by a car and suffered debilitating injuries to her back and head which resulted in her being hospitalized for approximately one month. She advised that, presently, she is unable to sit or stand for long periods of time, and she has been unable to work since her accident. The accident reportedly occurred while O'Connor was working for the Jolo Bus Company as an escort for disabled individuals, a company for which she had worked since approximately 1979.

  O'Connor stated that after the death of her mother in 1998 she began suffering from anxiety and hyperactivity. She further stated that, as a result of one of her prior convictions, she was ordered to undergo weekly mental health treatment. She also advised that she takes an anti-anxiety medication, which she says makes her feel calmer. She added that she feels the counseling and medication are helpful.

  O'Connor also reportedly takes glucose medication daily. According to a presentence report prepared in 2003 by the New York City Department of Probation, O'Connor had been using heroin for about one year and had also been participating in a methadone program. O'Connor reported no significant assets or liabilities, and a credit check revealed no open credit accounts and two collection accounts totaling $330. She reported that as a result of her injuries in 1992, she has been sustained by workmen's compensation benefits in the amount of $80 per week, as well as by her family.

  O'Connor has three prior convictions. In 1998 O'Connor was arrested and subsequently convicted of Criminal Possession of a Controlled Substance in the Seventh Degree. According to the presentence report prepared for that offense, O'Connor was arrested after she sold a quantity of methadone to an undercover officer in exchange for $30. On July 29, 1998, O'Connor was sentenced to three years' probation for the offense, and she was discharged from probation supervision on April 20, 2001.

  In September of 2000, O'Connor was arrested and later convicted of Reckless Endangerment in the First Degree. According to the presentence report prepared for the offense, O'Connor was observed by a firefighter setting a shirt on fire with matches and placing it inside a vehicle. After the firefighter extinguished the shirt, O'Connor reportedly grabbed the shirt, set it on fire again, and placed it in a dumpster. On March 15, 2001, O'Connor was sentenced to six months' imprisonment and five years' probation, but she was discharged from supervision on December 9, 2003 as a result of a third arrest and conviction in 2003. In August 2003, O'Connor was arrested and subsequently convicted of Attempted Burglary in the Second Degree, an offense for which she was sentenced to three years' imprisonment on November 26, 2003. According to the presentence report for that offense, on August 5, 2003, O'Connor and an unapprehended man were observed walking out of an apartment, the owner of which later informed the police that her apartment was burglarized and a credit card was missing. On August 8, 2003, O'Connor was arrested for shoplifting. At the time of that arrest, the aforementioned credit card was recovered from O'Connor's purse.

 The Offense

  According to the indictment, from approximately May 2003 through approximately August 200, O'Connor engaged in a scheme to defraud the LMDC and HUD of grant money by making false representations in a grant application that she was renting and residing in an apartment on Catherine Street in Manhattan on or before September 11, 2001 and that she intended to reside at that address for two years commencing June 1, 2002. These representations caused the LMDC to mail checks totaling $2,228.50 to O'Connor.

  The apartment in question, according to an investigator for the LMDC, is actually occupied by O'Connor's 90-year-old aunt, who has resided there for approximately 60 years. O'Connor had reportedly moved in with her but did not pay rent. In order to receive the LMDC grants, O'Connor reportedly forged required documents, such as a lease agreement and rent statements, "and submitted them to the LMDC. O'Connor's aunt discovered that O'Connor had been receiving grant money only after she had O'Connor removed from the apartment because O'Connor was stealing from her. She later noticed that O'Connor was receiving checks from the LMDC, which were subsequently turned over to investigators.

  A two-count indictment charging O'Connor with Mail Fraud and Theft of Government Funds was filed on December 9, 2003, and O'Connor pled guilty to the charges without the benefit of a plea agreement on February 5, 2004.

  The victim in this case is the LMDC, which suffered a loss totaling $2,228.50.

  In a letter to the court dated April 20, 2004, O'Connor expressed her extreme remorsefulness and regret for what occurred in the instant offense and her strong desire to "turn [her] life around."

 The Guidelines

  The November 1, 2002 edition of the United States Sentencing Commission Guidelines Manual has been used in this case, in accordance with § 1Bl.ll(b)(1). Pursuant to § 3D1.2(d), all offenses covered by § 2B1.1 are grouped together. Accordingly, O'Connor's sentencing range is determined by grouping the offenses charged in each of the two counts into a single group or offense.

  The guideline for a violation of 18 U.S.C. § 1341 is found in § 2B1.1, which provides for a base offense level of 6.

  Because the loss presently known to the Government is less than $5,000, the offense level is not increased under the offense-characteristic table set forth in § 2B1.1 (b).

  Based on O'Connor's plea allocution and her recognition of responsibility for the offense, the offense level is reduced by two levels pursuant to § 3E1.1 (a)

  The resulting applicable offense level is 4.

  The criminal convictions set forth above result in a subtotal criminal history score of six, pursuant to §§ 4Al.l(a), 4Al.l(b) and 4Al.l(c). At the time the instant offense was committed, O'Connor was on probation. Accordingly, two points are added pursuant to § 4Al.l(d), bringing the total of the criminal history points to 8. The sentencing table in Chapter 5, Part A, provides that 8 criminal history points establishes a Criminal History Category of IV. Based on these calculations, the guideline range for imprisonment is two to eight months. The statutory maximum term for Count One is twenty years, pursuant to 18 U.S.C. § 1341, and the maximum term of imprisonment for Count Two is ten years, pursuant to 18 U.S.C. § 641.

  Pursuant to § 5G1.3(c) (Policy Statement), the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. The minimum term of imprisonment, under the Guidelines, may be satisfied by (1) a sentence of imprisonment; (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention, provided that at least one month is satisfied by imprisonment, pursuant to § 5Cl.l(c); or (3) a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention for imprisonment.

  On each count, if a sentence of imprisonment is imposed, a term of supervised release of not more than three years may also be imposed, pursuant to 18 U.S.C. § 3583 (b)(2). Such terms are to run concurrently, pursuant to 18 U.S.C. § 3624 (e). The guideline range for a term of supervised release is at least two years but not more than three years, pursuant to § 5D1.2(a)(2). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to § 5Dl.l(b). Supervised release is required if a term of imprisonment of more than one year is imposed or when required by statute, pursuant to § 5Dl.l(a).

  O'Connor is eligible for not less than one nor more than five years' probation by statute on each count, pursuant to 18 U.S.C. § 3561(c)(1). Because the offense is a felony, pursuant to 18 U.S.C. § 3563 (a)(2) one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service.

  Under the Guidelines, because the applicable guideline range is in Zone B of the Sentencing Table, O'Connor is eligible for probation provided that the court imposes a condition that substitutes intermittent confinement, community confinement, or home detention for at least two months, pursuant to § 5Bl.l(a)(2). If the court imposes probation, the term must be at least one year but not more than five years because the offense level for the instant offense is 4, pursuant to § 5B1.2(a)(1).

  The statutory maximum fine for each Count is $250,000, pursuant to 18 U.S.C. § 3571. The guideline fine range for the instant offense is from $250 to $5,000, pursuant to §§ 5E1.2(c)(3)-(A) and 5E1.2 (c) (4). Subject to O'Connor's ability to pay, the expected costs to the government of any imprisonment, probation, or supervised release shall be considered in imposing a fine, pursuant to § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,876.61 to be used for imprisonment, a monthly cost of $283.23 for supervision, and a monthly cost of $1,475.67 for community confinement.

  A special assessment of $100 per Count, for a total of $200, is mandatory, pursuant to 18 U.S.C. § 3013.

  Full restitution to the victim is required under 18 U.S.C. § 3663A and 3664. Pursuant to § 5El.l(a)(1), where there is an identifible victim, a restitution order shall be entered for the full amount of the victim's loss if such order is authorized under 18 U.S.C. § 3663A. Here, restitution in the amount of $2,228.50 is owed to the LMDC.

  Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, all offenders on probation, parole or supervised release for offenses committed after September 13, 1994, are required to submit to one drug test within fifteen days of commencement of probation, parole or supervised release and at least two drug tests thereafter for use of a controlled substance, unless ameliorated or suspended by the court due to its determination that the defendant poses a low risk of future substance abuse as provided in 18 U.S.C. § 3563(a)(5) and 3583(d).

 The Sentence

  O'Connor is sentenced to time served to run concurrently with the sentence imposed in New York County Supreme Court (Ind. 4561-2003), to be followed by three years of supervised release. A special assessment fee of $200 payable to the United States is mandatory and due immediately.

  O'Connor shall make restitution in the amount of $2,228.50, payable to the Clerk, U.S. District Court, for disbursement to the LMDC. Payments should be forwarded to the LMDC at the following address: Lower Manhattan Development Corporation, 1 Liberty Plaza-20th Floor, New York, New York 10006, Att: Diana Lee. The restitution shall be paid in full not later than 90 days prior to the expiration of the term of supervised release. The factors in 18 U.S.C. § 3664(f)(2) were considered in formulating the payment schedule.

  O'Connor shall notify the United States Attorney for the Southern District of New York within 30 days of any change of mailing or residence address that occurs while any portion of the restitution remains unpaid. O'Connor shall report to the nearest Probation Office within 72 hours of her release from custody, and supervision shall be in the district of residence.

  As mandatory conditions of supervised release, O'Connor 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 device.

  In addition, the mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing. O'Connor shall participate in a program approved by the U.S. Probation Office, which program may include testing to determine whether O'Connor has reverted to using drugs or alcohol. The release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer, is hereby authorized. O'Connor will be required to contribute to the costs of services rendered (copayment), in an amount determined by the Probation Officer, based on ability to pay or availability of third-party payment.

  O'Connor shall also participate in a mental health program approved by the United States Probation Office. She shall continue to take any prescribed medications unless otherwise instructed by the health care provider. She shall contribute to the costs of services rendered not covered by third-party payment, if she has the ability to pay. The release of available psychological and psychiatric evaluations and reports to the health care provider is hereby authorized.

  This sentence is subject to modification at the sentencing hearing now set for May 24, 2004.

  It is so ordered.

20040503

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