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United States v. Chetiwal

United States District Court, E.D. Wisconsin

July 23, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
NAKUL CHETIWAL Defendant.

          STATEMENT OF REASON MEMORANDUM

          LYNN ADELMAN DISTRICT JUDGE

         In this case, members of an impersonation scheme located in India called individuals in the United States and made misrepresentations to them (typically, that they owed taxes or other debts), inducing the victims to wire money to locations directed by the callers. Defendant Nakul Chetiwal acted as a “runner” for the scheme, using fraudulent identification cards to pick up fraud proceeds, which he then forwarded (after receiving a 7% cut) to others in the conspiracy. Over a three month period, defendant picked up about $140, 000 from 139 different victims.

         Defendant pleaded guilty to conspiracy to commit wire fraud, 18 U.S.C. §§ 1343, 1349, and I set the case for sentencing. In imposing sentence, the district court must first calculate the advisory sentencing guideline range, then consider the arguments of the parties and the factors set forth in 18 U.S.C. § 3553(a), making an individualized assessment based on the facts presented. United States v. Pankow, 884 F.3d 785, 793 (7th Cir. 2018). After settling on the appropriate sentence, the court must adequately explain the chosen sentence. Id. This memorandum sets forth reasons for the sentence imposed on defendant Chetiwal.

         I. GUIDELINE CALCULATION

         Defendant's pre-sentence report (“PSR”) set a base offense level of 7, U.S.S.G. § 2B1.1(a)(1); added 8 levels based on a loss amount between $95, 000 and $150, 000, U.S.S.G. § 2B1.1(b)(1), 2 levels because the offense involved more than 10 victims, U.S.S.G. § 2B1.1(b)(2)(A), and 2 levels because a substantial part of the scheme was committed from outside the United States, U.S.S.G. § 2B1.1(b)(10); then subtracted 3 levels for acceptance of responsibility, U.S.S.G. § 3E1.1, for a final level of 16. Defendant had no prior record, so the PSR set the criminal history category at I, producing an imprisonment range of 21-27 months.

         Defendant argued that he should received a reduction for mitigating role in the offense pursuant to U.S.S.G. § 3B1.2. That guideline provides for a 4-level reduction for “minimal participants, ” U.S.S.G. § 3B1.2(a), a 2-level reduction for “minor participants, ” U.S.S.G. § 3B1.2(b), and a 3-level reduction for cases falling in between. It thus “provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A).

         The minimal participant reduction is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant. U.S.S.G. § 3B1.2 cmt. n.4. The minor participant reduction applies to a defendant who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal. U.S.S.G. § 3B1.2 cmt. n.5. In determining whether to apply a 4- or 2-level reduction, or an intermediate adjustment, the court should consider the degree to which the defendant understood the scope and structure of the criminal activity; the degree to which the defendant participated in planning or organizing the criminal activity; the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and the degree to which the defendant stood to benefit from the criminal activity. U.S.S.G. § 3B1.2 cmt. n.3(C). The defendant bears the burden of proving by a preponderance of the evidence that a role adjustment is warranted. See United States v. Sandoval-Velazco, 736 F.3d 1104, 1107 (7th Cir. 2013).

         In arguing for a reduction in his case, defendant indicated that he had little understanding of the scope and structure of the scheme, played no part in planning or organizing it, and acted as a simple courier, at the direction of others, and for limited gain. The government opposed the reduction, noting that defendant's role in the scheme was essential to its success, as this kind of fraud cannot succeed without individuals in the United States who pick up the proceeds and send them on to others outside the country. The government further noted that defendant's conduct was repetitive in nature, that he must have known the victims wired the money based on misrepresentations, that he appeared to have some discretion in the manner in which he conducted the pick-ups, and that his 7% cut amounted to almost $10, 000 over a three month period.

         I found the issue debatable. Defendant did appear to serve a menial role in a scheme devised by others. Further, as indicated in the application notes, the fact that a defendant performs “an essential or indispensable” task is not determinative. “Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(C). Similarly, a defendant who is held accountable for a loss amount “that greatly exceeds the defendant's personal gain from a fraud offense or who had limited knowledge of the scope of the scheme may receive an adjustment under this guideline.” U.S.S.G. § 3B1.2 cmt. n.3(A).

         On the other hand, identifying the “average participant” in this criminal activity was difficult, as the defendants charged in the instant indictment occupied similar roles as couriers, and the record did not contain a detailed description of the roles of the others not charged in this case (including the ostensibly more culpable parties who operated from India). While the fact that couriers are essential to the success of a scheme like this does not bar a reduction, the cases suggest that couriers are not, without more, entitled to a reduction. See, e.g., United States v. Covarrubias, 678 Fed.Appx. 415, 417 (7th Cir. 2017).[1]

         The Seventh Circuit has encouraged district judges to bypass debatable issues in the calculation of the guidelines if the issues turn out not to matter, and to state on the record whether the sentence would have been the same if the debated issue had come out the other way. See United States v. Hawkins, 777 F.3d 880, 885 (7th Cir. 2015). I followed that course here, considering defendant's role in the offense in imposing an appropriate sentence under § 3553(a).

         II. SECTION 3553(a)

         A. ...


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