On May 1st 2012 I was sentenced to 41 months of incarceration for my role in a mortgage fraud scheme. Prior to the sentencing, the prosecutors compared me to a co-defendant and they detailed how we were similarly situated and guilty of similar conduct. Their facts, however, would show that co-defendant, Maurizio Lancia was more involved and profited more than me. I couldn’t fathom how I could be said to be AS responsible when Lancia was in fact much more involved and a ring leader of the fraud ring. I owned a mortgage company for which Jose Guzman was employed. Guzman, Lancia and others had real estate agencies and shell companies through which they would use inflated appraisals to retrieve equity from the sale or refinance of properties. Only in the last year of their 4 year conspiracy was Guzman employed with my company. Prior to that he worked for Lancia’s mortgage company. Lancia was also the real estate closing attorney and partners in shell companies through which they funneled the excess funds from the real estate transactions.
During my sentencing hearing, my main concern was my children who were 1 and 3 at the time. I was the sole caregiver to those boys and wanted their well being to be considered, as per the Federal Sentencing Guidelines they should have been. The prosecutors did not address the boys at all, but rather spoke extensively on how even though they originally said my guideline range should be 41-51 months, they admit it is too high given my role. They went on to say that my role is comparable to Lancia and they would support a sentence in line with his – 27 months – to avoid unwarranted sentencing disparity, which is a sentencing factor that the court must consider when fashioning a sentence.
Judge Alfred Covello did not even acknowledge my personal characteristics as a mother, or the fact that the crime occurred years before I was married and had children. He did not acknowledge that after the year I was involved in the conspiracy I had a successful banking career with Bank of America. What he did do, which still shocks me to recount, was state reasons why he did not have to consider sentencing disparity between myself and Lancia. The unfortunate thing is that the cases he used to support his decision to sentence me to 41 months were not properly used.
Lancia and I were both first time offenders, both pled guilty and neither of us chose to cooperate with he government, which typically gives a 20% reduction in your sentence ( although Guzman received nearly 50% off his sentence guideline, which is the topic of another up and coming blog). Our roles factually were not similar in that Lancia was much more involved in numerous aspects of the conspiracy where my involvement was limited to employing Guzman. Still, the prosecutors asserted that we were similarly situated and I was not 14 month more culpable than Lancia.
Judge Covello cited three cases to support NOT considering disparity in handing me down a 41 months sentence. The first of these cases is US vs., Crisostomo (392 Fed app 894). He quotes that courts may consider avoiding unwarranted sentencing disparity “in the exercise of its discretion, it is not compelled to do so”. In this case, however, the court had found that Crisostomo and his co-defendant were not similarly situated. Crisostomo had actually “hampered the overall investigation” and did not fulfill his obligation to cooperate – which distinguished him from his codefendant Fatima Henriquez Diaz who received a lesser sentence. Even in this case, however, Crisostomo received a sentence 4 months below the guideline. I received no variance from the guideline and I am in no way differentiated from Lancia.
The second case he used was US vs. Frias (521 F3rd 229) where he quotes the judges must “consider nationwide sentencing disparities” not intra conspiracy disparity. Unfortunately Frias and his codefendant Roberto Martinez-Martinez were not similarly situated. Both Lancia and I pled guilty while Frias went to trial and his codefendant pled guilty to a charge that had a statutory maximum of 25 years. Frias was sentenced to life for murder after being found guilty by a jury.
The third case is United States v Mitchell. Mitchell had codefendants who received reduced sentenced under the new crack disparity guidelines whereas Mitchell did not. Mitchell appealed claiming it was unwarranted sentencing disparity and my judge quoted from this case that Mitchells codefendants “pled guilty pursuant to a plea agreement which dramatically reduced his guidelines exposure.” Judge Covello used this quote to justify why Lancia received a lower sentence.. because he received a lower plea. My plea, however, should have never been higher than his. In Mitchells case, he pled to a higher guideline because he was charged as a career criminal where the others in his case were not. I have no prior criminal record to support such a variance.
How then could Judge Covello use these cases where upon examination the codefendants involved in each case were clearly not similarly situated? He clearly pulled out of context quotes which supported his desire to not sentence me according to the sentencing factor which requires him to consider unwarranted sentencing disparity.
On top of this if he had in fact considered nationwide disparity, he would have seen that women who committed white collar offenses are sentenced at a rate of up to 300% higher than similarly situated males ( see www.womenoverincarcerated.org for the study conducted by CultureQuantiX).
Now the question becomes how does this get fixed? My case is currently in appeal, but despite agreeing that my sentence is excessive, the prosecutors are trying to prevent the appeal from being heard. The motion filed by Assistant United States Attorney Michael McGarry to dismiss the appeal is on the calendar to be reviewed by the Appeals Court of the Second Circuit in New York, New York on January 14.
reg # 17986-014
FEDERAL CORRECTIONAL INSTITUTION
DANBURY, CT 06811
United States of America