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United States of America v. Daniel Gillen

February 9, 2011

UNITED STATES OF AMERICA,
v.
DANIEL GILLEN DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to enforce stipulations (ECF No. 79)*fn1 filed by the government on January 12, 2011. Defendant Daniel Gillen ("defendant") filed a response dated January 30, 2011 (ECF No. 80) and a motion to postpone sentencing (ECF No. 83) dated February 4, 2011. Defendant‟s sentencing is scheduled to take place on February 10, 2011 at 3:00 p.m.

The government argues in its motion that the court should enforce the stipulated loss amounts in the plea agreement at the time of sentencing by precluding defendant from introducing evidence of a loss lower than the amount to which defendant stipulated. In the alternative, the government asserts the court should construe defendant‟s arguments for being able to introduce evidence of lower loss amounts or to object to the stipulated loss amounts as a breach of the plea agreement.*fn2 Defendant responds that information relevant to loss amounts was not available to him when he entered into the plea agreement with the government, and he believes the loss values are incorrect. Defendant argues U.S.S.G. § 6B1.4(d) permits the court to look at facts outside the stipulations in a plea agreement to determine the appropriate sentence.

I. Background

On April 6, 2010, defendant pleaded guilty to count one and two of the indictment at criminal no. 08-47 respectively charging him with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343, and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Defendant also pleaded guilty to count two of the indictment at criminal no. 09-37 charging him with filing a false tax return in violation of 26 U.S.C. § 7201. On April 6, 2010, defendant entered into a plea agreement with the government. (ECF No. 58.) The parties do not dispute the validity of the plea agreement.

The relevant portions of the plea agreement are set forth as follows:

B. In consideration of and entirely contingent upon the provisions of Parts A and C of this agreement, the United States Attorney for the Western District of Pennsylvania agrees to the following: . . .

2. The United States Attorney retains the right of allocution at the time of sentencing to advise the sentencing Court of the full nature and extent of the involvement of Daniel Gillen in the offenses charged in the Indictments and of any other matters relevant to the imposition of a fair and just sentence. . . .

C. Daniel Gillen and the United States Attorney further understand and agree to the following: . . .

4. The parties further agree that the base offense level for Count One of Criminal No. 08-47 is 7, and that the base offense level is raised 16 levels pursuant to section 2B1.1(b)(1)(I) (loss amount between $1,000,000 and $2,500,000). The government intends to seek a two-level enhancement pursuant to § 3B1.1 (Abuse of Position of Trust or Special Skill), and the defendant intends to oppose that enhancement. Other than the enhancements pursuant to §§ 2B1.1(b)(1)(I) and 3B1.1, the government stipulates that no other enhancements to the offense level apply based solely on the conduct charged in Count One of Criminal No. 08-47.

5. Pursuant to § 2S1.1(b)(2)(B) of the sentencing guidelines, the parties agree that the offense calculated by the Court based on the conduct charged in Count One of Criminal No. 08-47 will be increased two levels based on the conduct charged at Count Two of Criminal No. 08-47. The government stipulates that no other enhancements to the offense level apply based solely on the conduct charged in Count Two of Criminal No. 08-47.

6. With respect to Count Two of Criminal No. 09-37, pursuant to §§ 2T1.1(a)(1) and 2T4.1(F) of the sentencing guidelines, the parties agree that the base offense level is 16 (tax loss between $80,000 and $200,000), which is raised two levels pursuant to § 2T1.1(b)(1) (criminal activity source). The government stipulates that no other enhancements to the offense level apply based solely on the conduct charged in Count Two of Criminal No. 09-37.

7. The parties further agree that nothing in this letter should be construed as limiting Daniel Gillen‟s right to seek a downward departure ...


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