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United States v. Villar

United States District Court, Second Circuit

June 4, 2013

UNITED STATES OF AMERICA
v.
ELIOT VILLAR, a/k/a JESUS DIAZ, Defendant.

SENTENCING OPINION

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.

Prior Proceedings

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:

• Count One: from at least in or about July 2007, up through and including in or about April 2008, in the Southern District of New York and elsewhere, Villar, Indira Martinez ("Martinez"), and others known and unknown, unlawfully conspired to commit wire fraud and bank fraud, in violation of 18 U.S.C. §§ 1343 and 1344. As a result of committing the offense alleged in Count One of the Indictment, Villar shall forfeit to the United States, pursuant to 18 U.S.C. § 982(a)(2)(A), any and all property constituting or derived from any proceeds the defendants obtained directly or indirectly as a result of said offense. If any of the above-described forfeitable property, as a result of any act or omission of Villar: a. cannot be located upon the exercise of due diligence; b. has been transferred or sold to, or deposited with, a third person; c. has been placed beyond the jurisdiction of the Court; d. has been substantially diminished in value; or e. has been commingled with other property which cannot be subdivided without difficulty; it is the intent of the United States, pursuant to 18 U.S.C. § 982(b) and 21 U.S.C. § 853(p), to seek forfeiture of any other property of Villar and Martinez, up to the value of the above forfeitable property.
• Count Two: from in or about February 2008, in the Southern District of New York and elsewhere, Villar devised a scheme to defraud Capital One Auto Finance through the submission of an electronic application on February 13, 2008, from an apartment in the Bronx, New York to Plano, Texas, in violation of 18 U.S.C. § 1343. As a result of committing the offense alleged in Count Two of the Indictment, Villar shall forfeit to the United States, pursuant to 18 U.S.C. § 982(a) (2) (A), any and all property constituting or derived from any proceeds the defendants obtained directly or indirectly as a result of said offense. If any of the above-described forfeitable property, as a result of any act or omission of Villar: a. cannot be located upon the exercise of due diligence; b. has been transferred or sold to, or deposited with, a third person; c. has been placed beyond the jurisdiction of the Court; d. has been substantially diminished in value; or e. has been commingled with other property which cannot be subdivided without difficulty; it is the intent of the United States, pursuant to 18 U.S.C. § 982(b) and 21 U.S.C. § 853(p), to seek forfeiture of any other property of Villar, up to the value of the above forfeitable property.
• Count Three: from in or about May 2005, up through and including in or about May 2008, in the Southern District of New York and elsewhere, Villar and others known and unknown, conspired to and did transfer, possess, and use, without lawful authority, a means of identification of another person with the intent to commit, and to aid and abet, and in connection with, any unlawful activity that constitutes a violation of Federal law, and that constitutes a felony under any applicable State or local law, in violation of 18 U.S.C. § 1028(a)(7). As a result of committing the offense alleged in Count Three of the Indictment, Villar shall forfeit to the United States, pursuant to 18 U.S.C. § 982(a)(2)(A), any and all property constituting or derived from any proceeds the defendants obtained directly or indirectly as a result of said offense. If any of the above-described forfeitable property, as a result of any act or omission of Villar: a. cannot be located upon the exercise of due diligence; b. has been transferred or sold to, or deposited with, a third person; c. has been placed beyond the jurisdiction of the Court; d. has been substantially diminished in value; or e. has been commingled with other property which cannot be subdivided without difficulty; it is the intent of the United States, pursuant to 18 U.S.C. § 982(b) and 21 U.S.C. § 853(p), to seek forfeiture of any other property of Villar, up to the value of the above forfeitable property.
• Count Four: from in or about July 2007, up through and including in or about April 2008, in the Southern District of New York and elsewhere, Villar and Martinez possessed, used and transferred, without lawful authority, a means of identification of others to conspire to commit wire fraud and bank fraud, as charged in Count One of the Indictment, in violation of 18 U.S.C. §§ 1028A(a) (1) and (c)(5).
• Count Five: in or about February 2008, in the Southern District of New York and elsewhere, Villar possessed, used and transferred, without lawful authority, a means of identification of others to conspire to commit wire fraud, as charged in Count Two of the Indictment, in violation of 18 U.S.C. §§ 1028A(a) (1) and (d)(5).

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 hereby admits the forfeiture allegation with respect to Count One of the Indictment and agrees to forfeiture allegation with respect to Count One of the Indictment and agrees to forfeit to the United States, pursuant to 18 U.S.C. § 982(a)(2)(A), a sum of money equal to $125, 000 in United States currency, representing all property constituting or derived from any proceeds the Defendant obtained directly and indirectly as a result of said offense. It is further understood that any forfeiture of the Defendant's assets shall not be treated as satisfaction of any fine, restitution, cost of imprisonment, or any other penalty the Court may impose upon him in addition to the forfeiture. The Defendant further agrees to make restitution in the amount of $200, 000.
• With respect to calculation of the Defendant's offense level, the November 1, 2012 Guidelines manual applies in this case.
• Offense Level Calculation for Count One: The sentencing guideline applicable to the offense charged in Count One is §2B1.1. Pursuant to §2B1.1(a) (I), the base offense level is seven. Because the loss attributable to the offense exceeds $200, 000 but is less than $400, 000, the offense level is increased by 12 levels pursuant to §2B1.1(b)(1)(G). Because the offense involved 10 or more victims, the offense level is increased by two levels pursuant to §2B1.1(b)(2)(A). In addition, because the Defendant willfully obstructed or impeded the administration of justice with respect to the investigation and prosecution of the offense charged in Count One, and the obstructive conduct related to such offense, the offense level is increased by two levels pursuant to §3C1.1. Assuming the Defendant clearly demonstrates acceptance of responsibility to the satisfaction of the Government, through his allocution and subsequent conduct prior to the imposition of sentence, a two-level reduction will be warranted, pursuant to §3E1.1(a). Furthermore, assuming the Defendant has accepted responsibility as described in the previous sentence, an additional one-level reduction is warranted, pursuant to §3E1.1(b), because the Defendant gave timely notice of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently. In accordance with all of the foregoing, the total offense level for Count One is 20.
• Offense Level Calculation for Count Four: The sentencing guideline applicable to the offense charged in Count Four is §2B1.6. Pursuant to §2B1.6, the guideline sentence is the term of imprisonment required by statute.
• Criminal History Category: Based upon the information now available to the Government (including representations by the defense), the defendant has zero criminal history points. Accordingly, the defendant's Criminal History Category is I.
• Sentencing Range: Based upon the calculations set forth above, the defendant's stipulated Guidelines range for Count 1 is 33 to 41 months imprisonment. Pursuant to 18 USC 1028A(b)(2), the two-year term of imprisonment for Count 3[1] must run consecutively to any term of imprisonment imposed for Count 1. Accordingly, the stipulated Guidelines range for Counts 1 and 4 is 57 to 65 months' imprisonment, with a mandatory minimum term of 24 months' imprisonment (the "Stipulated Guidelines Range"). In addition, after determining the defendant's ability to pay, the Court may impose a fine pursuant to §5E1.2. At Guidelines level 20, the applicable fine range is $7, 500 to $75, 000. The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range set forth above is warranted. Accordingly, neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein. Nor will either party suggest that the Probation Office consider such a departure or adjustment under the Guidelines, or suggest that the Court consider any such departure or adjustment.
• The parties agree that either party may seek a sentence outside of the Stipulated Guidelines Range, suggest that the Probation Office consider a sentence outside of the Stipulated Guidelines Range, and suggest that the Court consider a sentence outside of the Stipulated Guidelines Range, based upon the factors to be considered in imposing a sentence pursuant to 18 USC 3553(a).

The Defendant's sentencing is currently scheduled for June 6, 2013.

The Sentencing Framework

In accordance with the Supreme Court's decision in United States v. Booker , 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby , 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the Advisory Guidelines. Thus, the sentence to be imposed here is the result of a consideration of:

(1) the nature and circumstances of the offense and the history and ...

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