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Case 1:11-cr-00227-AKH Document 66 Filed 05/09/13 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA
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- v. -
DAVID GRIFFITHS,

Defendant.






11 Cr. 227 (AKH)



SENTENCING MEMORANDUM OF THE UNITED STATES OF AMERICA

PREET BHARARA
United States Attorney for the
Southern District of New York,
Attorney for the United States

of America

CARRIE H. COHEN
JUSTIN ANDERSON
Assistant United States Attorneys

- Of Counsel -

Case 1:11-cr-00227-AKH Document 66 Filed 05/09/13 Page 2 of 13

U.S. Department of Justice

United States Attorney
Southern District of New York

The Silvio J. Mollo Building

One Saint Andrew’s Plaza
New York, New York 10007
May 9, 2013

By ECF and Hand Delivery
The Honorable Alvin K. Hellerstein
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007

Re:

United States v. David Griffiths,
11 Cr. 227 (AKH)

Dear Judge Hellerstein:

The defendant David Griffiths (“Griffiths” or “the

defendant”) is scheduled to be sentenced in the above-referenced
case on May 10, 2013 at 11:00 a.m. The Government respectfully
submits this letter in advance of that sentencing and in response
to the defendant’s submission dated May 7, 2013 (“Def. Mem.”).
For the reasons discussed below, the Government agrees with

the United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”) calculations of the United States Probation Office
(the “Probation Office”) in its Presentence Investigation Report
dated January 18, 2013 (“Presentence Report” or “PSR”) and
recommends a sentence of imprisonment within the Guidelines range
of 51 to 63 months’ imprisonment. A Guidelines sentence is
sufficient but not greater than necessary to serve the legitimate
purposes of sentencing, especially in light of the seriousness of
the offenses and the defendant’s significant abuse of his
position of trust.

BACKGROUND

A.

The Charges
Information S3 11 Cr. 227 (AKH) (the “Information”) was

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 2 of 12
filed on April 24, 2012, in three counts. Count One charged
Griffiths with making false statements to the government, in
violation of Title 18, United States Code, Section 1001. Count
Two charged Griffiths with obstruction of justice, in violation
of Title 18, United States Code, Section 1512(c)(2). Count Three
charged Griffiths with mail fraud, in violation of Title 18,
United States Code, Section 1341. (PSR ¶¶ 1-4).

Counts One and Two of the Information arose from Griffiths’s

production of documents purporting to be minutes from two
meetings (“Board Minutes”) of the Board of Directors (the
“Board”) of the Neighborhood Enhancement Training Services, Inc.
(“NETS”), which was a not-for-profit corporation located in
Bronx, New York. As alleged in the Information and found by the
jury, the Board Minutes falsely stated that the Board had certain
discussions and had taken certain actions with respect to salary
purportedly owed to the defendant and with respect to money he
allegedly lent to NETS. Griffiths provided the false Board
Minutes to the Federal Bureau of Investigation (“FBI”) in June
2009 in response to a Grand Jury Subpoena issued from this
District and served on NETS. (PSR ¶¶ 2, 3).

Count Three of the Information related to Griffiths’s
September 13, 2010 mailing of a grantee questionnaire (the
“Questionnaire”) to the Dormitory Authority of the State of New
York (the “Dormitory Authority”) in which he falsely represented
that, within the past five years, neither NETS, any director or
officer, nor any affiliated or related companies had been the
subject of a criminal investigation, civil investigation by any
governmental agency, or any tax liens or judgments. (PSR ¶ 4).

A.

The Trial And Guilty Verdict On All Counts
Trial began on May 1, 2012 and concluded on May 30, 2012

when the jury returned a verdict of guilty on all three counts of
the Information. (PSR ¶ 7).

The Government’s Case

1.
Much of the Government’s direct case at trial was not in

dispute.

It was undisputed that at all times relevant to the

Information, the defendant served as the Executive Director of
NETS and as the treasurer for the political campaign of then New

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 3 of 12
York State Assemblyman Peter M. Rivera. In addition, the
defendant also worked for Assemblyman Rivera’s law firm (the “Law
Firm”) and ran Assemblyman Rivera’s for-profit corporation, R&S
Group, Inc. (“R&S”).

Assemblyman Rivera testified that he did not put Griffiths

in charge of NETS or authorize him to become its Executive
Director. (Trial Transcript (“Tr.”) 93-34). Rather, the
evidence showed that Assemblyman Rivera asked Griffiths to help
NETS renovate a building it had purchased (the “Building”), and
then Griffiths unilaterally decided that he should be NETS’s new
Executive Director. In addition, as explained by NETS’s former
bookkeeper Nancy Herbert Pilate, Griffiths unilaterally
authorized his own salary and other payments of funds to him.
(Tr. 290).

As Assemblyman Rivera explained at trial, NETS received its
operational funding through government grants that he sponsored.
(Tr. 43). In addition, Assemblyman Rivera sponsored more than $1
million in grants to NETS to buy and renovate the Building and
those grants were administered by the Dormitory Authority.
The Government demonstrated at trial that the defendant

controlled NETS, the Law Firm, and R&S, all of which he ran out
of the same offices, until the entities were evicted in mid-2008
for failure to pay rent. Indeed, the evidence showed, and the
defendant admitted that by mid-2007, the defendant’s previous
sources of income – namely from the Law Firm, R&S, and another
law practice – had dried up. It was at this time that the
defendant unilaterally put himself on NETS’s payroll, thereby
enabling him to collect a bi-weekly paycheck from NETS. (Tr.
938). 1

The evidence further showed, and it was undisputed that, by
2008, NETS, like the Law Firm and R&S, also had run out of cash

1

The evidence also showed that the defendant previously

authorized $33,000 to be paid from NETS to himself, namely monies
paid to him by NETS in 2005, recorded on NETS’s books and records
as a “loan,” as well as additional money in 2004, recorded on the
check as “salary.” The Government introduced evidence at trial
that the 2005 “loan” was not an advance of salary, as the
defendant later represented to the FBI, because he failed to
declare such money as income and did not receive a W-2 or Form
1099 from NETS in relation to such payment.

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The Honorable Alvin K. Hellerstein
May 9, 2013
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and effectively ceased operation. While many of the government
grants awarded to NETS were outstanding and available for
payment, beginning in or about 2005, such funds were frozen
because NETS had failed to file its required annual tax returns
(“Form 990s”) with the IRS and the Office of the Attorney General
of the State of New York (“OAG”) for 2006 and 2007. (Tr. 964).
And while it was undisputed that from 2005 through to 2008, NETS
had paid many of its operating expenses by taking “loans” the
defendant authorized from the Law Firm and R&S, by 2008, the Law
Firm and R&S Group no longer had any money to lend to NETS. It
was around this time that, at the defendant’s direction, NETS and
R&S stopped paying their payroll and other taxes and subsequently
became subject to certain tax liens and judgments, which the
evidence, including certified copies of tax notices, liens, and
judgments, showed the defendant knew remain unsatisfied at the
time he submitted the Questionnaire. (Tr. 983).

Beginning in October 2008, the evidence showed that the FBI,
working with this Office, interviewed various individuals related
to NETS, including the three Board members, Lizandra Martinez,
NETS’s former Program Director, (Tr. 806), and Pilate, (Tr. 311),
and served both document and personal appearance Grand Jury
Subpoenas on NETS, its Board members, and its employees. (Tr.
905). It was undisputed that the primary area of inquiry was the
finances of NETS and payments to Griffiths, particularly, the
$33,000 “loan” paid to him in 2005. (Tr. 968).

After the FBI’s investigation of NETS became overt, it was
undisputed that Griffiths, for the first time, called a meeting
of the Board, which was held in December 2008, (Tr. 952), with a
follow-up meeting held six months later in June 2009. According
to the Board Minutes, at those meetings, the Board made certain
motions and took certain votes related to the defendant’s salary,
both prospective and retrospective back to 2003, when he first
started working at NETS, and the alleged “loans” from the Law
Firm and R&S Group to NETS. (Tr. 366).

Also in 2009, a month prior to the second Board meeting, the
OAG contacted the defendant and began its civil investigation of
NETS with a focus on its finances and payments to Griffiths,
including the $33,000 “loan” paid to him in 2005. (Tr. 581).
The evidence showed that throughout 2009, the defendant produced
thousands of pages of documents to the OAG on behalf of NETS in
response to the OAG’s investigation and had discussions with the
OAG, including a conversation during which then Assistant

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 5 of 12
Attorney General Nathan Reilly told the defendant that the OAG
investigation was not closed. (Tr. 584).

In 2009, while the federal and state investigations were

ongoing, the defendant, working with an accountant hired by NETS
who testified at trial, George Pristouris, filed NETS’s 2006 and
2007 Form 990s. Through the testimony of Pristouris and certain
documents and e-mails between Griffiths and Pristouris and/or his
staff, the Government showed that in order for Pristouris to
complete the delinquent 2006 and 2007 Form 990s, Griffiths needed
the Board to approve his salary, (Tr. 136), both retroactive and
prospective, as well as the “loans” to NETS from the Law Firm and
R&S. (Tr. 156).

Regarding Counts One and Two of the Information and the
false Board Minutes, the Government’s proof at trial included
testimony from the three Board members about what actually
occurred during the two Board meetings and about their knowledge,
or lack thereof, regarding management, governance, and finances
of NETS. Specifically, Patricia Tomasulo and Anthony Bonelli
both testified that much of what was stated in the Board Minutes
regarding what was told to the Board about Griffiths’s
compensation and what the Board approved simply was not true.
(Tr. 354-57, 465, 471-73). Cora Booth, the third Board member,
also testified for the Government, although she could not
remember much of what had happened or did not happen at the Board
meetings. In addition, through cross-examination of Martinez,
the Government further demonstrated that much of what was stated
in the Board Minutes simply was false. (Tr. 810-11).

The Government also introduced at trial e-mails between the

defendant and Pristouris and his staff and e-mails between the
defendant and Martinez related to Griffiths’s drafting of the
Board Minutes. Those emails and related testimony demonstrated
Griffiths’s motive for holding the Board meetings, which was in
response to the criminal investigation and the accountant’s
refusal to approve Griffiths’s retroactive and prospective salary
increase without express Board approval. (Tr. 981-82). Such
testimony also demonstrated the undisputed fact that Griffiths
was responsible for drafting and finalizing the Board Minutes,
(Tr. 971), as well as providing them to the FBI in response to
the Grand Jury Subpoena. (Tr. 549-50).

In September 2010, a year after providing the false Board
Minutes to the FBI, it was undisputed that the defendant sent the
Questionnaire, among other related documents, to the Dormitory

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The Honorable Alvin K. Hellerstein
May 9, 2013
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Authority in an attempt to obtain a $400,000 grant NETS had been
awarded in 2008 to complete the renovations to the Building.
(Tr. 984). The evidence at trial showed that, upon receipt of
such documents, the Dormitory Authority did not further process
the grant as it was aware of the federal criminal investigation
of NETS. (Tr. 656).

Regarding the mail fraud charged in Count Three of the

Information, the Government’s proof at trial consisted of, among
other things: testimony from NETS’s employees, namely Martinez
and Pilate; testimony from the three Board members; testimony
from law enforcement officials, namely FBI Special Agent Bullets
Campbell, to whom Griffiths made certain admissions, and Nathan
Reilly, a former Assistant Attorney General for the OAG and now
an Assistant U.S. Attorney in the Eastern District of New York;
and an attorney at the Dormitory Authority, Sara Richards. In
particular, the testimony demonstrated that, at the time
Griffiths mailed the Questionnaire to the Dormitory Authority, he
was aware, at a minimum, that NETS and/or he was being
investigated by the FBI as well as by the OAG. In addition, the
evidence showed that Griffiths knew that NETS was the subject of
unsatisfied tax liens and judgements. (Tr. 983).

The Defense Case

2.
In addition to calling Martinez, Griffiths called NETS’s
attorney Hans O’Connell (who submitted a letter on Griffiths
behalf for sentencing) and NETS’s former accountant Frank
Weyrauther. Griffiths also testified on his own behalf.
O’Connell testified about a meeting with SA Campbell during which
SA Campbell made it clear that NETS and the compensation being
paid to Griffiths were under investigation, although the agent
did not state who or what was the “subject” of the investigation.
O’Connell also testified, unconvincingly, that he advised
Griffiths that he was not the “subject” of an investigation as
that term was understood by O’Connell based on his time in the
Bronx District Attorney’s Office. (Tr. 734). Based on such
testimony, the defense argued that Griffiths’s failure to
disclose the criminal investigation to the Dormitory Authority
was somehow excusable. Weyrauther tried to substantiate the
characterization of the $33,000 Griffiths paid himself as a
“loan,” although such testimony was wholly unconvincing. (Tr.
830).

Griffiths testified in his own defense and admitted much of
the factual background that the Government had established on its

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 7 of 12
direct case. Griffiths, however, claimed that whatever the Board
Minutes said had transpired at those two Board meetings had in
fact happened, and that the Board members had reviewed certain
documents at those meetings. (Tr. 913). The Court, who, along
with the jury, was able to assess Griffiths’s credibility,
clearly did not find his testimony persuasive. Griffiths further
claimed that, at the time he submitted the Questionnaire, he did
not believe that NETS or he had been the subject of a criminal or
civil investigation or subject to any tax liens or judgments.
(Tr. 932). The Government’s evidence, however, demonstrated that
this testimony simply was not credible.

In addition, the defense called several character witnesses,

but none of them had any knowledge of the facts underlying the
charged crimes. Indeed, both witnesses admitted that they did
not know Griffiths worked at NETS and had no knowledge of the
Board Minutes or the Questionnaire. (Tr. 712, 721).
Accordingly, their testimony was of limited, if any, value.
C.

The Probation Office’s Guidelines Calculation and
Sentencing Recommendation
The Probation Office calculated a total Guidelines offense
level of 24, just as the Government had calculated in the
Pimentel letter it sent to the defendant prior to trial. (PSR ¶
24.) This calculation was based on (1) a base offense level of
14 for false statements and obstruction of justice as charged in
Counts One and Two; (2) a two-level increase based on the
fabrication of an especially probative record; (3) a two-level
increase based on Griffiths’s abuse of a position of private
trust and use of a special skill in a manner that significantly
facilitated the commission of the offenses; (4) a one-level
increase based on a multiple count adjustment for the mail fraud
charged in Count Three. (PSR ¶¶ 21-43). The Probation Office
calculated that the defendant’s Criminal History Category was I,
yielding a Guidelines range of 51 to 63 months’ imprisonment.
(PSR ¶ 50 and at 25).

Griffiths contests two components of this calculation.
First, Griffiths challenges the two-level enhancement under
Section 2J1.2(b)(3)(B) for “the fabrication of an especially
probative record.” (PSR ¶ 26). According to Griffiths, “there
was no evidence at trial to even suggest that Mr. Griffiths
destroyed or altered documents to thwart the investigation.”
(Def. Mem. at 3). Griffiths has it exactly backward. The basis
for his obstruction of justice conviction was his alteration and

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 8 of 12
fabrication of the Board Minutes in order to justify his
compensation and other financial irregularities at NETS.
Griffiths created those documents in order to deceive the FBI
into believing that nothing was amiss at NETS. Under the
circumstances, this enhancement is entirely appropriate.

Second, Griffiths believes that he did not abuse a position
of private trust under Section 3B1.3 because he “did not occupy a
position of trust with the government.” (Def. Mem. 3). That
argument misses the mark entirely, because it was a position of
private trust in connection with his work a NETS that Griffiths
abused by covering up his attempts to obtain NETS’s funds through
deception. Griffiths did not need to occupy a position of trust
in relation to the Government in order to receive this
enhancement. Griffiths’s alternative argument that the
enhancement is already included in the underlying offense, (Def.
Mem. at 3-4), equally is misplaced, as Griffiths’s false
statement and obstruction of justice offenses do not inherently
require that a defendant occupy a position of trust within a
private entity. Accordingly, this enhancement also was proper.

Based on a Guidelines range of 51 to 63 months’

imprisonment, the Probation Office recommends a sentence at the
bottom of the Guidelines range of 51 months’ imprisonment on each
count to run concurrently; one year of supervised release; no
fine; no forfeiture; and a $300 mandatory special assessment.
(PSR at 25).

For the reasons set forth below, the Government respectfully
submits that a sentence within the Guidelines range of 51 to 63
months’ imprisonment is sufficient but not greater than necessary
to serve the legitimate purposes of sentencing.

DISCUSSION

The Probation Office’s recommendation of a bottom of the
Guidelines sentence of 51 months’ imprisonment is based on the
seriousness of Griffiths’s offenses and his lack of any
compelling personal circumstances that would warrant a below-
Guidelines sentence. (PSR at 26). The defendant argues for a
non-custodial sentence of time served and community service based
on his claim that he has been punished enough by the shame and
grief “visited” upon him as a result of this case, (Def. Mem. at
7), and his personal circumstances, namely his 17 and 14 year old
daughters who depend on him and a stroke he suffered from more
than five years ago. The defense further argues that any

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 9 of 12
custodial sentence would be greater than necessary and serve no
legitimate sentencing goal based, in part, on his claim that
there is no need for specific deterrence. (Def. Mem. at 1, 6).

Contrary to defense claims, a Guidelines sentence of 51
months imprisonment is appropriate here especially given the
nature and seriousness of Griffiths’s offenses. Moreover, unlike
many defendants who appear before this Court, Griffiths has no
compelling personal circumstances that warrant a non-Guidelines
sentence. In addition the need for specific and general
deterrence support a Guidelines sentence as well.

Griffiths was entrusted with public funds to run a not-for-
profit corporation in the Bronx that was supposed to help elderly
individuals and children in the community. While serving in such
position of trust, Griffiths abused that trust and created false
Board Minutes in an attempt to obtain compensation to which he
was not entitled. By producing those false minutes to the FBI,
Griffiths obstructed a federal investigation thereby corrupting
the Government’s search for truth. Compounding those lies,
Griffiths attempted to obtain state funds by lying about the
FBI’s criminal investigation and claiming that it did not exist.
By engaging in such conduct, Griffiths again violated his
position of trust at NETS and attempted to defraud a state
agency.

Griffiths argues that he devoted a “substantial amount of
time and effort for very little compensation” (Def. Mem. at 5) to
NETS but the evidence at trial simply does not support such a
claim. To the contrary, the records demonstrated that the
defendant kept no time records of his work at NETS although all
other employees did so and was working for other companies and a
law firm as well as running several political campaigns at the
same time that he supposedly was working full-time at NETS. In
addition, Griffiths unilaterally authorized a salary for himself
at various points during his tenure and authorized $35,000 in
payments to himself allegedly as a “loan.” Indeed, it is hard

2

2

In light of the jury’s verdict, the Government no longer
merely “alleges” that Mr. Griffiths “sought some compensation for
himself,” (Def. Mem. at 6), because those facts were proven at
trial. Accordingly, the defense’s related claim that Griffiths
did not “unduly enrich” himself, (Def. Mem. at 6), equally is
flawed. The motive for his crimes was to line his own pockets.
Griffiths’s lies in the Board Minutes about Board approval of his

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 10 of 12
to credit Griffiths’ claim that he cared so much about the Bronx
residents, for whom he was entrusted with public funds, when it
was his own misdeeds that caused NETS to become defunct. As a
direct result of Griffiths’ misconduct, NETS ceased to function
and those residents no longer have the services the State tried
to provide to them through funding NETS. Accordingly,
Griffiths’s service to NETS actually is an aggravating sentencing
factor rather than a mitigating one.

In addition, Griffiths’s claims that his “life history

reveals respect for the law” and that he is “trustworth[y] and
reliab[le],” (Def. Mem. at 5), simply are not true. The defense
submission and all the letters, even those written by his former
law partners and clients, all conveniently omit the critical fact
that Griffiths was suspended from the practice of law for lying
to clients and misusing their funds. In addition, Griffiths was
found guilty of multiple lies committed at different times
thereby belying his claim that his criminal conduct was somehow
an aberration. (Def. Mem. at 6-7). Further, Griffiths testified
at trial and his testimony clearly was rejected as not credible
by the jury. Accordingly, the defense claim that Griffiths does
not need to be deterred from future criminal conduct (Def. Mem.
at 6) is suspect, at best. Moreover, Griffiths’s lack of
criminal history already has been taken into account in the
Guidelines calculation as he has zero criminal history points and
thus is in Criminal History Category I.

With respect to Griffiths’s purported “health issues,” (Def.
Mem. at 7), the defense does not submit any medical information
or records to support any claim that he currently suffers from a
medical condition that the Bureau of Prisons would be unable to
address adequately. Similarly, the defendant’s family
circumstances, namely a teenage daughter in high school and
another daughter who is graduating high school, are by no means
unique, and, in some ways, are less sympathetic than other

salary both retroactive and prospective as well as his lies to
the Dormitory Authority were designed to ensure that NETS
continued as a viable operation and could obtain its previously
withheld member funds, which he intended to take as his
supposedly approved retroactive salary as well as a salary on a
going forward basis. The fact that Griffiths did not succeed in
his efforts because the FBI and the Dormitory Authority did not
believe his lies does not in any way lessen his crimes or run the
risk that they will be “overdramatized.” (Def. Mem. at 6).

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The Honorable Alvin K. Hellerstein
May 9, 2013
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defendants. Unlike many defendants who appear before this Court,
Griffiths had a law license and worked in a number of
professional jobs, including at NETS, and thus had many
advantages that a lot of defendants do not have in this society.
Indeed, as shown by the letters submitted by the defendant,
Griffiths’s wife is employed as a real estate salesperson and has
a supportive group of family, friends, community members, and
clergy all of whom can assist his family during any period of
incarceration.

In addition to recognizing the nature and seriousness of the
offenses, a Guidelines sentence also would serve the purposes of
affording adequate general deterrence. See 18 U.S.C. § 3553
(a)(2)(B). All too often, not-for-profits funded with government
money are misused by those entrusted to run the organization. A
non-custodial sentence here would send the wrong message to the
public and essentially be a slap on the wrist for conduct that
caused real harm and is a serious problem throughout this State.
Finally, and more generally, the Guidelines, are by no means
arbitrary; rather, they are the product of deliberate, evolving,
and thoughtful consideration of crime and appropriate
punishments. Because the Guidelines are “the product of careful
study based on extensive empirical evidence derived from the
review of thousands of individual sentencing decisions,” Gall v.
United States, 128 S. Ct. 586, 594 (2007), district courts must
treat the Guidelines as the “starting point and the initial
benchmark” in sentencing proceedings. Id. at 596. See also
United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005) (“[I]t
is important to bear in mind that Booker/Fanfan and Section
3553(a) do more than render the Guidelines a body of casual
advice, to be consulted or overlooked at the whim of a sentencing
judge.”).

In sum, the Guidelines remain a fundamental starting point
for determining a defendant’s sentence; they should not be
disregarded particularly where, as here, the remaining factors
under 18 U.S.C. § 3553(a) demonstrate that a Guidelines sentence
is appropriate.

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The Honorable Alvin K. Hellerstein
May 9, 2013
page 12 of 12

CONCLUSION

For the reasons set forth above, the Government respectfully
requests that the Court impose a sentence on the defendant within
the applicable Guidelines range, as such a sentence would be
sufficient but not greater than necessary to serve the legitimate
purposes of sentencing.

Respectfully submitted,
PREET BHARARA
United States Attorney

By: /s/

Carrie H. Cohen/Justin Anderson
Assistant United States Attorney
Tel.: (212) 637-2264/1035


cc: Donald D. DuBoulay, Esq. (by ECF and e-mail)

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