Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 1 of 29UNITED STATES DISTRICT COURTDISTRICT OF CONNECTICUTUNITED STATES OF AMERICAv.OKPAKO MIKE DIAMREYAN,Defendant.:::::::No. 3:09 Cr. 260 (JCH)April 30, 2010GOVERNMENT'S MEMORANDUM IN AID OF SENTENCINGFor defendant Okpako Mike Diamreyan, America is a landof opportunity -- opportunity to commit fraud.We are sheep,waiting to be shorn; we are "mugu."*The defendant began committing advance-fee fraud inNigeria and Ghana no later than 2004.In 2008, he came to theUnited States, where he married a young woman who supported himby working two jobs and going to school at night.Instead oftaking advantage of this opportunity to start a new life, thedefendant continued participating in the fraud scheme and, infact, used his presence in the United States to further thefraud.The defendant made no effort to become a productivemember of society; instead, he hoped to reap a fortune in crime.As the defendant told an accomplice:"i want to forget americaand come back home . . . once i take like 1m or half m i don*The term "mugu" is used throughout the defendant'semail messages and Internet chats to refer to victims. InNigerian pidgin, it means "fool." Seehttp://en. (last visited April 28, 2010).

Case 3:09-cr-00260-JCH Document 69forget this place."Filed 04/30/10 Page 2 of 29See Declaration of Christopher Mehring,dated Apr. 30, 2010 ("Mehring Decl."), at B-13; see also id. atB-16 ("i want take 1 m or half m . . . 1m dollar").The defendant's crimes demand a substantial punishment,one that fully reflects the suffering caused by the defendant tohis many victims.BackgroundThe defendant is a Nigerian citizen who immigrated tothe United States on May 30, 2008.See Pre-sentence Report,dated Apr. 21, 2010 ("PSR") ¶¶ 42 & 65.He was arrested onAugust 27, 2009 and convicted by a jury of three counts of wirefraud on February 16, 2010.A.The Offense Conduct1.The Advance-Fee Fraud SchemeStarting no later than August 2004, and continuinguntil his arrest in August 2009, the defendant participated in anadvance-fee fraud scheme.The scheme involved:(a) sendingemail messages to potential victims about large sums of money orother assets; (b) making false and fraudulent representationsabout advance fees that the victims had to pay to obtain themoney or assets; (c) posing as government or bank officials topersuade the victims to pay the advance fees; (d) providing falseand fraudulent documents to the victims; and (e) causing the2

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 3 of 29victims to transfer money to pay the advance fees, usually byWestern Union or MoneyGram.The defendant was involved in all aspects of thescheme.His email account, "[email protected]," containsnumerous solicitation emails, sent to induce potential victims torespond.See, e.g., Mehring Decl. at A-1 & A-4.In one suchemail, the defendant claimed to be in a refugee camp in Ghana,trying to move a consignment worth 23.4 million out of thecountry.See id. at return.The defendant offered 20% of the moneySee id.While most people receiving such a solicitation wouldnot respond, the scheme worked by sending the message to largenumbers of potential victims via the Internet, in order to findthe few who were sufficiently gullible, sufficiently desperate,or even just sufficiently curious to respond.Again, this wasseen in the defendant's email account, where nearly identicalsolicitation emails were sent to many people; it was alsocaptured in an Internet chat between the defendant and anaccomplice, in which the defendant instructed his accomplice tosend an email message to multiple recipients using "bcc" (blindcarbon copy).See id. at B-3 ("you fit send 10 10 with bcc").The scheme also worked by repeatedly fleecing victimswho were known to be susceptible to such solicitations.defendant and his accomplices were constantly exchanging3The

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 4 of 29information about old victims (whom they referred to as "oldwork").See, e.g., id. at A-17 (email message from defendant toaccomplice with subject line "Old work" that contains informationabout Pandelos, Bender, Victim Nos. 42 and 55, and many others);see also id. at A-6 to A-7 (trading information about "magas");id. at A-9 to A-10 (forwarding victim information from oneaccomplice to another with instruction to "try this ones first").Once a potential victim responded to the scamsolicitation, the defendant and his accomplices used phonydocuments and false identities to persuade the victim that thepromised rewards really existed.They also exerted considerablepressure on the potential victim, both by email and on thetelephone.For example, telephone records show that thedefendant called Mitchell Bender nearly 1,200 times during a twoyear period.See id. ¶ 23.To avoid the defendant and hisaccomplices, victims have had to disconnect their phone lines andInternet service.See, e.g., Trial Transcript, dated Feb. 11,2010 ("Tr."), at 131.In 2008, the defendant came to the United States.only did the defendant continue to participate in the fraudscheme, he actually used his presence in the United States toperpetuate the scheme.For example, the defendant offered topick up money anywhere in the United States on behalf of anaccomplice:4Not

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 5 of 29[accomplice]: so if any mugu send money go anywherefor states u fit pick am ehmilkymyx:milkymyx:milkymyx:milkymyx:milkymyx:Id. at i have explain to u beforeyesand it has to be in money gramand the amount have to be very highfrom 1600 upwardAllowing accomplices to direct victim money withinthe United States served two purposes:first, it allowed thescheme to be more realistic, so that the victim could be led tobelieve that a purported consignment had actually reached theUnited States (where it would undoubtedly then be stuck until afee was paid to somebody in the United States); second, itallowed the defendant and his accomplices to defraud individualswho were less wary of sending money domestically than overseas.The defendant also supplied communication equipment andservices to his accomplices that were evidently not available tothem overseas.For example, the defendant provided oneaccomplice with a MagicJack, i.e., a device for making telephonecalls over the Internet, "so that you . . . call america any howas u likke for free."Id. at B-24.The defendant providedanother accomplice with the ability to make it appear to thevictim on a telephone call that the accomplice was in the UnitedStates:"when mugu call u e go be like say you dey america."Id. at B-34.Indeed, the defendant offered to make it appear asif the accomplice was "any where [in] the world," an obviouslyvaluable capability given the nature of the scheme.5See id. at

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 6 of 29B-21 (stating to accomplice that he will call victim's cell phoneto show victim he is in United States).2.The Jointly Undertaken Criminal ActivityAs already indicated, the defendant had manyaccomplices in executing the scheme to defraud.For the schemeto be successful, victims had to be given a realistic impressionthat there were people around the world who were trying to move aconsignment or reward from one place to another.Therefore, thedefendant relied on accomplices throughout his involvement in thescheme.See, e.g., id. at A-2 (email dated Aug. 11, 20004 inwhich defendant exhorts accomplice to "work with this[victim] . . . to believe what even i tell him he should followit accordily"); see also id. at A-5 ("i want you . . . to workthe same on the woman she is stuborn is time for her to pay memoney but she is hesitating please i want you to also work hardon her").The defendant and his accomplices constantly sharedinformation about the victims of the scheme, in order to presenta consistent story in their dealings with each victim.This canbe seen in the defendant's emails, see, e.g., id. at A-12 (emailfrom defendant to accomplice with subject line "details of theMugu"), A-14, A-26, A-27, & A-39; as well as his Internet chats,see, e.g., id. at B-21 (getting details from accomplice aboutwhat to tell victim) & B-39 (instructing accomplice on what to6

Case 3:09-cr-00260-JCH Document 69tell victim).Filed 04/30/10 Page 7 of 29The defendant and his accomplices also discussedamounts that victims had previously paid.See, e.g., id. at B-18(discussing "mugu" who previously sent more that 75,000 toLondon).Beyond just sharing information, the defendant and hisaccomplices shared their victims.For example, in one Internetchat, the defendant explicitly gave "fresh work" to anaccomplice:"take this fresh work e go pay you."Id. at B-28.The defendant then provided the name and email address of asecond victim, saying "fresh work . . . she pay us last year."Id.With respect to a third victim, the defendant wrote:"thatguy now work . . . the guy can dey give u 7, 8, 10, 12, kupward . . . big mugu with money."Id.Finally, the defendantasked for victim information in return:"u tell me say u getsome for email when u go give me"?The accomplice obliged aId.short while later, providing the names and telephone numbers offive other victims in the United States.See id.Although there does not appear to be a stricthierarchy, nor any single leader, among the defendant and hisaccomplices, the defendant clearly enjoyed a position ofresponsibility and him as "chairman."Two different accomplices referredSee id. at B-41 ("you be my chairman") &A-39 (referring to defendant as "chairman" in email fromaccomplice asking defendant to call Victim No. 53).7More

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 8 of 29concretely, there were instances where the defendant gavespecific instructions to an accomplice on what to do.See, e.g.,id. at B-3 (instructing accomplice on sending emails); id. at B30 (instructing accomplice to create fraudulent document); id. atB-32 (instructing accomplice to call victim).There was even anoccasion when the defendant, immediately before his return visitto Ghana, instructed an accomplice to clean his room, wash thewindows and sheets, and clean the refrigerator.B.See id. at B-26.Impact of the Offense on VictimsFor the purpose of computing a Guidelines offenselevel, sixty-seven victims have been identified from the UnitedStates and around the world.See Mehring Decl. ¶¶ 15-170.Manyof the victims have suffered losses measured in the hundreds ofthousands of dollars.The victims have suffered more than pecuniary loss;they have suffered injury to their health, see id. at C-1;emotional well-being, see id. at C-5 & C-6; and financialsecurity, see id. at C-1 & C-5.Victims have also reporteddevastating damage to their personal relationships:"After some63 years of marriage [my wife] is ready to leave me and has eventhreatened suicide."C.Id. at C-13.Background of the DefendantThe defendant has reported a difficult childhood inNigeria.See PSR ¶¶ 34-35 (describing conflicts with half-8

Case 3:09-cr-00260-JCH Document 69siblings).uncle.Filed 04/30/10 Page 9 of 29From the age of 12, the defendant lived with anSee PSR ¶ 36.In addition to going to school, where heplayed soccer and sang in the choir, the defendant helped withthe farming.See PSR ¶ 37.At the age of 20, the defendant began attending anearby university.See PSR ¶ 38.with no financial resources.2004.See PSR ¶ 50.He was homeless for a period,See id.He left the university inHe immigrated to the United States on May30, 2008, and he married Martine Janvier on June 19, 2008.SeePSR ¶ 42.The defendant reported the following employment inNigeria:agricultural work, bricklaying, selling clothes andhousehold items, cleaning, and begging on the streets.¶¶ 39 & 41.See PSRThe defendant reported the following employment inthe United States:working at a library and shoveling snow.SeePSR ¶ 51.There is nothing in the defendant's background toexplain why people from the United States and around the worldwere sending him money -- except for fraud.ARGUMENTI.The Guidelines Recommend a Term of151 to 188 Months' ImprisonmentThe Government respectfully submits that the followingGuidelines computation applies in this case:9

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 10 of 29Base offense level, § 2B1.1(a)(1)Loss amount, § 2B1.1(b)(1)(I)Number of victims, § 2B1.1(b)(2)(B)Substantial part of scheme committedoverseas, § 2B1.1(b)(9)(B)Vulnerable victims, § 3A1.1(b)(1)Leadership role, § 3B1.1(b)TOTAL:7 16 4 2 2 334The above computation is identical to the Guidelines calculationin the Pre-sentence Report, except for the inclusion of an upwardadjustment for vulnerable victims.See PSR ¶¶ 19-29.Based on acriminal history category of I, the Sentencing Guidelinesrecommend a term of imprisonment of 151 to 188 months.A.The Loss from the Offense Exceeded 1,000,0001.Applicable LawUnder the Sentencing Guidelines, the defendant isresponsible for the "actual loss" resulting from his offense,i.e., for "reasonably foreseeable pecuniary harm."U.S.S.G.§ 2B1.1 n.3(A) (2009).In determining the actual loss, the relevant conductincludes, in this case:(a) all acts and omissions committed,aided, or abetted by the defendant; and (b) all reasonablyforeseeable acts and omissions of others in furtherance of thescheme to defraud.See U.S.S.G. § 1B1.3(a)(1) (2009).Becausethe offense is "of a character . . . which . . . would requiregrouping," the relevant conduct also includes all such acts andomissions "that were part of the same course of conduct or commonscheme or plan" as the charged conduct.10See id. § 1B1.3(a)(2).

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 11 of 29In particular, the defendant is responsible for thereasonably foreseeable acts and omissions of his accomplices,even though he was neither charged nor convicted of conspiracy.See id. § 1B1.3(a)(1)(B) (imposing liability for jointlyundertaken criminal activity "whether or not charged as aconspiracy").In this regard, the Court must first determine thescope of the criminal activity the defendant agreed to undertakejointly, i.e., the scope of the conduct and the § 1B1.3 n.2.SeeIn doing so, the Court may consider "anyexplicit agreement or implicit agreement fairly inferred from theconduct of the defendant and others."See id.The requirement of reasonable foreseeability appliesonly to the acts and omissions of the defendant's accomplices; itdoes not apply to conduct in which the defendant was personallyinvolved.See U.S.S.G. § 1B1.3(a)(1) & n.2 (2009); United Statesv. Maaraki, 328 F.3d 73, 75-76 (2d Cir. 2003) (defendant who soldstolen calling card numbers was liable for calls made bypurchasers without regard to reasonable foreseeability);see also United States v. Paulino, 873 F.2d 23 (2d Cir. 1989)(defendant who acted as lookout with minimal knowledge oftransaction and minimal control over its execution wasresponsible as aider and abetter for entire quantity of drugssold).11

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 12 of 29Once the Government establishes, by a preponderance ofthe evidence, the existence of jointly undertaken criminalactivity, the burden rests on the defendant to prove that theacts or omissions of his accomplices was not reasonablyforeseeable to him.See United States v. Martinez-Rios, 143 F.3d662, 677 (2d Cir. 1998) (citing cases); see also United States v.Firment, 296 F.3d 118, 122 (2d Cir. 2002).Finally, "[t]he court need only make a reasonableestimate of the loss."U.S.S.G. § 2B1.1 n.3(C) (2009); seeUnited States v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009) ("[T]hecourt need not establish the loss with precision but rather needonly make a reasonable estimate of the loss, given the availableinformation." (internal quotation marks omitted)).In particular, determining loss is not a merelyarithmetical task of adding together the loss from individualtransactions; the Court can and should look to the overallpattern of criminal conduct established by the evidence.SeeUnited States v. Wilson, 11 F.3d 346, 356 (2d Cir. 1993) ("Evenif the specific transactions identified in the record do nottotal five kilograms, they are merely examples of a course ofconduct that continued unabated for an entire year . . . ."); seealso U.S.S.G. § 2B1.1 n.3(C)(vi) (2009) (including "scope andduration of offense" as factor that may be considered indetermining loss).12

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 13 of 29Although determining loss may be "no easy task, someestimate must be made for Guidelines' calculation purposes, orperpetrators of fraud would get a windfall."United States v.Rigas, 583 F.3d 108, 120 (2d Cir. 2009) (internal quotation marksomitted).2.The Loss Exceeded 1,000,000Starting in August 2004, the defendant indisputablyengaged in jointly undertaken criminal activity.As to the scopeand objectives of that joint undertaking, the evidence shows thatthe defendant and his accomplices were using fraudulent emailmessages, documents, and telephone calls to extract as much moneyas possible from their victims -- put more bluntly, to take thevictims for all they were worth.Accordingly, the defendant should be held responsiblefor all losses suffered by all victims of his accomplices, fromAugust 2004 through August 2009, excluding only those losses thatthe defendant can prove were not reasonably foreseeable to him.As a practical matter, however, the Government has notidentified all of the defendant's accomplices, nor has itidentified all of their victims.Instead, the Government offersa more conservative measure of loss in this case:(1) the losssuffered by victims who are known either to have sent money tothe defendant or to have some connection to the defendant, where(2) the loss has been documented by third-party records and is13

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 14 of 29not based solely on the victims' own estimates.Using this moreconservative yardstick, the loss in this case is still greaterthan 1 million.See Mehring Decl. ¶ 8.*The defendant places mistaken reliance on two casesthat deal with securities fraud, United States v. Rutkoske, 506F.3d 170 (2d Cir. 2007), and United States v. Olis, 429 F.3d 540(5th Cir. 2005), to argue that there is no evidence that thedefendant caused the losses claimed by the Government.Thedefendant's argument is mistaken, as a matter of fact and as amatter of law.First, as a factual matter, the victims identified bythe Government reported that they were victims of an advance-feefraud scheme and that they lost money as a result of the scheme.Also, each victim either sent money to the defendant or wasconnected in some other way to the defendant, who was engaged inadvance-fee fraud.Finally, in the context of advance-fee fraud(unlike securities fraud), there is no "innocent" cause for aloss that must be excluded from the loss calculation.Therefore,there is a sufficient basis for the Court to conclude that the*The defendant complained, by letter dated March 24,2010, that the Government's loss calculation "far exceeds" anyamount contained in the discovery materials or made known attrial. In fact, the Government twice advised the defendant, byemail messages dated October 2, 2009 and October 7, 2009, that itexpected to claim a loss amount over 1 million.14

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 15 of 29losses identified by the Government were in fact caused by anadvance-fee fraud scheme.Second, the legal question is not whether the defendanthimself caused the loss suffered by each victim, but whether thedefendant is responsible for losses caused by his accomplices inthe course of jointly undertaken criminal activity.As to that,the defendant should be held responsible under both prongs ofU.S.S.G. § 1B1.3(a)(1).Under § 1B1.3(a)(1)(A) -- concerning acts and omissionscommitted, aided, or abetted by the defendant -- the defendantshould be held responsible because the victims identified by theGovernment were limited to those victims who sent money to thedefendant or were otherwise connected to the defendant.Becauseof the defendant's direct participation in defrauding thosevictims, he should be held responsible for the full fraud loss ofeach victim, regardless of reasonable foreseeability.See, e.g.,United States v. Boothe, 994 F.2d 63, 71 (2d Cir. 1993).Under § 1B1.3(a)(1)(B) -- concerning acts and omissionsof accomplices -- the defendant should be held responsiblebecause he cannot carry his burden of disproving reasonableforeseeability.The evidence conclusively demonstrates that thedefendant and his accomplices were continually exchanginginformation about their victims, in order to continue existingscams and to perpetrate new ones.15Therefore, it would be

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 16 of 29reasonably foreseeable to the defendant that victims would havesuffered losses caused by his accomplices, both before thedefendant's involvement and after.Indeed, the defendant expressly intended to clear halfa million to a million dollars from participating in the fraudscheme.See Mehring Decl. at B-13 ("once i take like 1m or halfm") & B-16 ("i want take 1 m or half m").The defendant'sexpressly stated intent not only demonstrates reasonableforeseeability, but actual knowledge by the defendant as to thescope of the criminal enterprise.The defendant intended toclear that amount personally, in a scheme where he knew that manyothers would be involved and would be entitled to a share of themoney.Thus, the defendant plainly understood that he wasinvolved in a scheme where the victims were losing millions ofdollars.See also Mehring Decl. ¶ 11 (describing defendant'sstatement to informant that he and his accomplices madeapproximately 5 million a year for Nigerian "syndicate").Finally, as argued previously, the loss claimed by theGovernment in this case is conservative, because it does notinclude victims of known accomplices if the victims had no directcontact with the defendant.Accordingly, there is a sufficientevidentiary basis for the Court to find, as a reasonable estimateand by a preponderance of the evidence, that the actual loss wasgreater than 1 million.16

Case 3:09-cr-00260-JCH Document 69B.Filed 04/30/10 Page 17 of 29There Were At Least 50 Victims in This Case1.Applicable LawUnder the Sentencing Guidelines, "victim" is defined tomean any person, company, or other entity that "sustained anypart of the actual loss," as determined in calculating loss underthe Guidelines.U.S.S.G. § 2B1.1 n.1 (2008).To constitute a"victim," an individual's loss must be included in the losscalculation.See United States v. Abiodun, 536 F.3d 162, 169 (2dCir. 2008).2.The Court Should Find that the Offense InvolvedAt Least 50 VictimsEach of the victims identified by the Governmentsuffered a loss cognizable under the Guidelines.The Courtshould reject the defendant's argument that the Government hasfailed to prove causation, see point I.A.2., supra, and the Courtshould accordingly find that there were more than fifty victims.C.The Victims of the Offense Were Vulnerable Victims1.Applicable LawUnder the Sentencing Guidelines, a two-level increasein the defendant's offense level is warranted if the defendant"knew or should have known that a victim of the offense was avulnerable victim."U.S.S.G. § 3A1.1(b)(1) (2009).A"vulnerable victim" is a victim who is "unusually vulnerable dueto age, physical or mental condition, or who is otherwise17

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 18 of 29particularly susceptible to the criminal conduct."Id. § 3A1.1n.2.In 2000, the guideline was amended to provide for anadditional two-level increase if the offense involved "a largenumber of vulnerable victims."Id. § 3A1.1(b)(2).The amendmentwas made in conformance with the Telemarketing Fraud PreventionAct of 1998, Pub. L. No. 105-184, § 6(c)(3), 112 Stat. 520, 521,which mandated "an additional appropriate sentencing enhancementfor cases in which a large number of vulnerable victims,including but not limited to victims described in section 2326(2)of title 18, United States Code, are affected by a fraudulentscheme or schemes."Section 2326(2) pertains to offenses that"(A) victimized ten or more persons over the age of 55; or(B) targeted persons over the age of 55 . . . ."§ 2326(2) (2006).18 U.S.C.Accordingly, ten or more vulnerable victimsconstitutes a "large number" for the purposes of this guideline.See United States v. Kaufman, 546 F.3d 1242, 1268-69 (10th Cir.2008) (interpreting "large number" to mean ten or more victims asa matter of law); see also 18 U.S.C. § 2326(2) (2006) (referringto "ten or more" victims).2.The Defendant Targeted a Large Number ofElderly Victims Particularly Susceptible to FraudThe vulnerable-victim adjustment applies in this case,because the defendant and his accomplices deliberately targetedindividuals who were known to have responded to earlier fraud18

Case 3:09-cr-00260-JCH Document 69solicitations.Filed 04/30/10 Page 19 of 29Moreover, of the 34 victims in this case whoseage is known, 41 are over the age of 55.This case is strikingly similar to United States v.O'Neil, 118 F.3d 65 (2d Cir. 1997), in which the defendants wereengaged in telemarketing fraud.Specifically, the defendantscalled people in the United States and Canada to tell them thatthey had won an automobile or large-screen 68-69.See id.In order to receive the prize, the victims were toldthat they had to pay a fee, to cover taxes, duties, or otherexpenses.See id. at 70.Once a victim actually paid money, heor she was contacted by a more experienced telemarketer, whoattempted to obtain more money by telling the victim that he orshe had won more valuable prizes and that more fees had to bepaid.See id. at 69.The court in O'Neil held that the vulnerable-victimadjustment applied, based on the age of the victims and thetargeting of individuals who were susceptible to fraud:[T]he victims of this scheme primarily were individualsin their sixties, seventies and eighties. Althoughbeing elderly is alone insufficient to render anindividual "unusually vulnerable" . . . , courtsfrequently have found elderly individuals to beunusually vulnerable to telemarketing fraud schemesvery similar to the one involved here. Moreover, . . .many of the leads given to the sales staff were thenames and phone numbers of individuals who previouslyhad done business with a telemarketing company,indicating their susceptibility to criminal conductthat utilizes telemarketing methods.Id. at 75 (citations omitted).19

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 20 of 29This case is indistinguishable from O'Neil.Inparticular, there are numerous instances where the defendant andhis accomplices shared information about individuals who hadvictimized previously.Therefore, the vulnerable-victimadjustment should be applied.II.The Court Should Impose a Guidelines SentenceA.Applicable LawAs the Court knows, the Sentencing Guidelines areadvisory.Gall v. United States, 128 S. Ct. 586, 594 (2007).Nevertheless, "[a]s a matter of administration and to securenationwide consistency, the Guidelines should be the startingpoint and the initial benchmark."Id. at 596."[A]fter giving both parties an opportunity to arguefor whatever sentence they deem appropriate, the [Court] shouldthen consider all of the § 3553(a) factors to determine whetherthey support the sentence requested by a party."Id.In doingso, the Court should "not presume that the Guidelines range isreasonable," but should instead "make an individualizedassessment based on the facts presented."Id. at 596-97If the Court concludes that a non-Guidelines sentenceis appropriate, the Court must then "consider the extent of thedeviation and ensure that the justification is sufficientlycompelling to support the degree of the variance."Id. at 597."We find it uncontroversial that a major departure should be20

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 21 of 29supported by a more significant justification than a minor one."Id."For even though the Guidelines are advisory rather thanmandatory, they are . . . the product of careful study based onextensive empirical evidence derived from the review of thousandsof individual sentencing decisions."B.Id. at 594.A Guidelines Sentence Is Appropriate Under § 3553The Government respectfully submits that the Courtshould impose a Guidelines sentence, to include a term of 151 to188 months' imprisonment.Such a term would be well-deserved inthis case.1.The Nature and Circumstances of the OffenseThe advance-fee fraud scheme perpetrated by thedefendant and his accomplices has been extensive, injuring anddeceiving victims around the world.The defendant participatedin the scheme for at least five years.The scope and duration ofthe defendant's criminal conduct plainly warrants a substantialsentence.Moreover, the scheme has a greatly disproportionateimpact on the elderly, who are more vulnerable to the lies andmore victimized by the losses.point:Michael Pandelos is a case inPandelos is a 78 year-old man who was gainfully self-employed his entire life.In retirement, he lives with his wifein a modest home on a fixed income; he cannot afford to lose thenearly 73,000 that he has, in fact, lost.21

Case 3:09-cr-00260-JCH Document 69Filed 04/30/10 Page 22 of 29Pandelos is one of many elderly victims with similarlysad stories.The sentence imposed on the defendant shouldreflect the suffering caused by the offense to this vulnerablesegment of society.2.The Need to Provide Just PunishmentThe sentence imposed must also reflect the need toprovide just punishment, where the offense caused both financiallosses to the victims as well as other important, but lesstangible, injuries.On the issue of financial loss, it is tragic that somevictims were so thoroughly deceived that they took out loans topay the

accomplice with a MagicJack, i.e., a device for making telephone calls over the Internet, "so that you . . . call america any how as u likke for free." Id. at B-24. The defendant provided another accomplice with the ability to make it appear to the victim on a telephone