IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA UNITED STATES OF AMERICA * * vs. * * CRAIG STANFORD EURY, JR., * * DEFENDANT. * ******************************* Case No. 1:14CR39-1 Winston-Salem, North Carolina September 24, 2015 EXPEDITED TRANSCRIPT OF SENTENCING HEARING BEFORE THE HONORABLE JAMES A. BEATY, JR. UNITED STATES SENIOR DISTRICT JUDGE APPEARANCES: For the Government: FRANK J. CHUT, JR., ESQUIRE Office of the United States Attorney 101 S. Edgeworth Street, 4th Floor Greensboro, North Carolina 27402 For the Defendant: KEARNS DAVIS, ESQUIRE WES J. CAMDEN, ESQUIRE Brooks Pierce McLendon Humphrey & Leonard, LLP Post Office Box 2600 Greensboro, North Carolina 27420-6000 Court Reporter: Lori Russell, RMR, CRR P.O. Box 20593 Winston-Salem, North Carolina 27120 Proceedings recorded by stenotype reporter. Transcript produced by Computer-Aided Transcription. 9/24/15 - USA v. EURY - SENTENCING HEARING 2 1 P R O C E E D I N G S 2 (Defendant present.) 3 MR. CHUT: The next matter would be United States of 4 America versus Craig Stanford Eury, Jr., 1:14CR39-1. 5 is represented by Mr. Davis and Mr. Camden. 6 7 THE COURT: Mr. Eury Mr. Davis, Mr. Camden, you represent the defendant Craig Stanford Eury? 8 MR. DAVIS: Yes, Your Honor. 9 THE COURT: I believe he's subject to sentencing for 10 Count One -- Count One, Section ii of Object One, that charge 11 being conspiracy to obstruct government functions. 12 subject to sentencing with respect to Count Eleven, Object 13 Four, of conspiracy to defraud the United States. 14 15 He's also Is that your understanding of the matters that are before the Court for sentencing? 16 MR. DAVIS: Yes, Your Honor. 17 THE COURT: Have you had an opportunity to review the 18 presentence report that was filed in this case? 19 MR. DAVIS: We have, Your Honor. 20 THE COURT: And are there any outstanding objections 21 22 23 24 25 at this time? MR. DAVIS: There are and Mr. Camden will address those, Your Honor. THE COURT: All right, sir. Let me be sure as we start what position the Government is 9/24/15 - USA v. EURY - SENTENCING HEARING 3 1 taking in this case with respect to any of the objections that 2 are made or specific offense characteristics. 3 part of the pleadings the Government has filed you do agree 4 that there should not be a two-point assessment that's applied 5 in determining the offense level with respect to whether or not 6 there was a bribe. 7 MR. CHUT: I notice as a Is that correct? Yes, that's correct, Your Honor. I 8 discussed that with probation as well. 9 this guideline is not going to apply that broadly based on the I think, Your Honor, 10 United States' review of the law. 11 that objection, Your Honor, it should not apply. 12 THE COURT: I agree with the defense on So what that does -- and I don't know 13 whether probation has made any attempt to try to modify the 14 guideline calculations. 15 as the Court hears the other objections, does it have affect 16 upon the presentence report as filed and revised 17 September 17th, 2015, because at this point, in terms of 18 paragraph 91 and thereafter, the calculation results in a base 19 offense level of 11 with additional special specific offense 20 characteristics and an adjustment for role in the offense, but 21 that seems to be unrelated to the determination of the 22 applicable guidelines under paragraphs 89 and 90? 23 before we get started with their objections, would there be any 24 modifications that probation would suggest in terms of where we 25 are with the Government's concession? But with that agreement at this point, So just 9/24/15 - USA v. EURY - SENTENCING HEARING 4 1 2 3 4 PROBATION OFFICER: No, Your Honor, there would be no modifications. THE COURT: Are you saying that because of the cross reference the total offense level would still result in 24? 5 PROBATION OFFICER: 6 THE COURT: Yes, Your Honor. And that's without relation to the 7 calculations made in 91, 92, and 94? 8 PROBATION OFFICER: 9 THE COURT: 10 Those calculations would appear to be independent of what the cross reference would result in. 11 PROBATION OFFICER: 12 THE COURT: 13 Yes, Your Honor. Yes, Your Honor. Because the cross reference number is higher than what the guideline ranges would be? 14 PROBATION OFFICER: 15 THE COURT: Correct, Your Honor. Is it my understanding that the guideline 16 ranges without the cross reference for Count One, Section ii, 17 Object One, and Count Eleven, Object Four, based upon 18 calculations there, would have been 16? 19 PROBATION OFFICER: 20 THE COURT: 21 22 23 Is that correct? Yes, Your Honor. I just wanted to make sure I'm starting at the right point. Mr. Camden, I'll hear from you. MR. CAMDEN: Your Honor, as you know, the objections 24 have been thoroughly briefed and so I'm going to be brief with 25 my comments today. 9/24/15 - USA v. EURY - SENTENCING HEARING 5 1 We made a number of objections to the offense conduct and 2 how it was described in the presentence report, specifically 3 paragraphs 70 to 75 and then 82 to 85. 4 position to that in the papers. 5 relevant conduct, that it's not germane to the sentencing 6 calculation, and as such it should be excluded. 7 don't want to be heard any further on that. 8 THE COURT: 9 MR. CAMDEN: We've laid out our We believe that it's not Beyond that we All right, sir. Your Honor has already addressed the 10 other point I was going to cover with respect to the two-point 11 enhancement for bribery or extortion. 12 now with the application of the cross reference that that would 13 not apply. 14 would, of course, result in a two-point reduction. 15 Government is in agreement with us on that position. 16 So I'll direct the balance of my comments to the I agree that as we sit However, if the cross reference did not apply, that The 17 application of 2C1.1(c)(1) to move over to the other offense 18 and the guideline language -- 19 THE COURT: That's where -- just so that I'm clear, 20 that's where it would result in the 24 total offense level 21 separate and apart from the calculations that are in paragraphs 22 91 through 94. 23 MR. CAMDEN: 24 correct. 25 reference over to 2L. That's correct, Your Honor. That's That's what's driving the sentence here is the cross 9/24/15 - USA v. EURY - SENTENCING HEARING 6 1 THE COURT: 2 MR. CAMDEN: All right, sir. And so our objection the Government I 3 think characterizes fairly. 4 the question is how does the cross reference work. 5 that if you look at the cross reference, particularly if you 6 look at it in the overall context of the guideline, you have a 7 statutory index that states clearly that if you have an offense 8 under 371 that involves, you know, defrauding the government in 9 its operations that you come over to 2C1.1, so that's how we 10 11 Our objection is a legal one and We believe get here. Once we're here, it has a very high base offense level, 12, 12 so you're sort of starting at a high level and then you're 13 working your way through this analysis. 14 whole clearly contemplates bribery or extortion of some form, 15 and so as you're analyzing it -- and the fact that that's not 16 here, that's why a lot of these specific offense 17 characteristics do not apply. 18 But the guideline as a But then you get down to this cross reference and it says 19 if the offense -- and presumably that means the bribe offense. 20 And certainly we're aware of the fact that the guideline was 21 modified to move the language from "bribe" to "offense." 22 think if you drill down on the reason why that was done and the 23 justification that was given at the time was that there were 24 certain offenses that sort of looked and felt like bribes but 25 didn't necessarily meet the elements of the offense federally I 9/24/15 - USA v. EURY - SENTENCING HEARING 7 1 for bribes and so you move it to "offense" to expand that scope 2 so you don't get into that type of analysis. 3 But nonetheless, I think the gravamen of that cross 4 reference is it anticipates a bribe being done or extortion 5 being done in furtherance of another offense and it, in fact, 6 says "another offense." 7 You see it applied in -- consistent with, frankly, the example 8 that's provided in the guidelines. 9 THE COURT: And so where do you see it applied? You have -- Are you suggesting though, just so that 10 I'm clear, that the offense as charged in Count One, conspiracy 11 to obstruct government functions, that's where you're asserting 12 the conduct that's thought to be addressed as bribery or 13 extortion? 14 MR. CAMDEN: No, Your Honor. I think we're in the 15 right guideline. 16 of conviction, if you look at it, it takes us over to 2C1.1 and 17 I think the guidelines are explicit about that. 18 I think the statutory index for the offense The only point I'm making is that if you look at the way 19 the guideline generally operates it generally is talking about 20 bribery and extortion offenses, and I think the notes and 21 commentary suggest that, but that's not to say that it 22 exclusively applies to that. 23 We believe that it does apply -- the 2C1.1 does apply to 24 this offense and that's precisely the guideline that should be 25 used to calculate Mr. Eury's sentence in this case and that it 9/24/15 - USA v. EURY - SENTENCING HEARING 8 1 should not cross-reference out to some other guideline where we 2 end up at 2L. 3 So what we've done here is we've taken the conduct at 4 issue, which is interfering with the government's ability to 5 administer the guest worker program through the filing of 6 certain documents, and so you have an offense there and so 7 this -- of course, this cross reference is contemplating two 8 offenses. 9 another offense. 10 There's an offense and then it's done in support of Here there isn't another offense. There's the offense of 11 obstructing the government and then certainly visas are issued. 12 There's no question that that happens, but those visas were 13 issued. 14 government employees who issued those visas did anything 15 unlawful in the course of doing that. In fact, they -- they 16 did what they thought was appropriate. Now, they did that 17 based on information that may have led them astray, but they 18 did what they thought was right. There's -- no one is suggesting at all that the 19 And so I was actually struck by -- if you look at the 20 Solomon case that the Government cites to in its papers, the 21 Solomon case, I think it's on page 364 of the opinion, goes 22 through and it analyzes this concept of one offense in support 23 of another offense. 24 see in almost every single one of the cases that apply this 25 cross reference, you've got a police officer who is taking a And so there again in Solomon, like you 9/24/15 - USA v. EURY - SENTENCING HEARING 9 1 2 bribe in support of some sort of illegal drug conspiracy. His argument in that case was: Well, we found out later on 3 that it was a sting and so there were law enforcement officers 4 and so I couldn't have conspired with them under the law and so 5 this cross reference shouldn't apply. 6 And the Court said: No, no, that's not right. The 7 question is what was your purpose and your purpose was to 8 further that drug conspiracy and so the cross reference does 9 apply. 10 But in reaching that conclusion, it goes through an 11 analysis in which it talks about what it means to say there's 12 an offense in support of another offense, and it applies it 13 obviously to the facts of that case, but then it makes a note 14 about what it calls sort of double -- doubly corrupt purposes. 15 The doubly corrupt purposes is where you apply the guideline 16 and it apposes it to -- it doesn't say this, but basically a 17 singly corrupt purpose. 18 public official who accepted a bribe for some reason and then 19 went and did an act that it was totally lawful for that public 20 official to do. 21 but you don't have that second offense. 22 And the example that it uses is a And so you have the offense on the front end, And our position is if you look at what's occurring here, 23 it's the same dynamic. 24 for lack of a better way of putting it or to borrow from the 25 language of Solomon, where you have certainly an obstruction You have the singly corrupt offense, 9/24/15 - USA v. EURY - SENTENCING HEARING 10 1 with the -- with the guest worker program -- with the 2 administration of the guest worker program, but there isn't 3 another offense that follows on top of that. 4 in furtherance of another offense. 5 occurs and then there's a consequence. 6 So it's not done There's an event that I would certainly concede that there's a consequence to 7 that, but I don't think that it satisfies the language of the 8 cross reference to say that it's done in furtherance of another 9 offense and it certainly is inconsistent with how this cross 10 11 reference has been utilized in practice. If the Court goes to the -- to look at the cases -- and 12 there aren't a number of them. 13 cross reference has been put into play and it's very clear in 14 all of those cases that you have a clear crime and in all of 15 them it was either a bribe or an extortion and it was done in 16 connection with another clear crime. 17 them were drug offenses where you have a law enforcement 18 officer being paid to look the other way. 19 where you had judicial officers, you know, accepting bribes to 20 throw cases. 21 throw cases, but those were the minority. 22 I found about 22 where this Again, the majority of There were some You had lawyers who were accepting bribes to THE COURT: But you always -- Is the conduct in Count Eleven tied to 23 this to the extent that Count One charges the obstruction and, 24 as you would say, the consequence or the Government would say 25 the purpose then would be what took place in Count Eleven? Is 9/24/15 - USA v. EURY - SENTENCING HEARING 11 1 2 that the argument at all? MR. CAMDEN: I don't believe so. I believe that we're 3 dealing with the one count that addressed the issuance of the 4 visas and that's related to the ILMC case and so I think we're 5 sort of cabined to that area right now. 6 sort of ASAP side of this, for lack of a better way to put it, 7 sort of bleeds over into the ILMC side. 8 in the ILMC side. 9 information that are being sent in to the government and then I don't think that the I think we're squarely So you've got documents with inaccurate 10 visas are certainly issued as a byproduct of that, but the 11 offense of conviction is doing that. 12 and, you know, our view is simply that that's the end of it and 13 so you don't have this other offense lying out there. 14 He's pled guilty to that Another way to think about it that occurred to me is -- and 15 you've seen this in the money laundering context and a few 16 other context. 17 is not -- this is not the analysis that I think applies 18 squarely here, but I think it's relevant is the merger analysis 19 that you see when you go through sort of a Santos-type analysis 20 is, you know, is the Government basically taking one set of 21 facts and using it to splinter off and cover two crimes. 22 you have that moment, you get this merger problem and you have 23 to unpack that. It's -- I want to be clear with the Court this When 24 I think that's -- I think that's what's happening here. 25 think it's one course of conduct being used to satisfy both I 9/24/15 - USA v. EURY - SENTENCING HEARING 12 1 prongs of the cross reference when the cross reference even on 2 its own terms clearly contemplates an offense and then another 3 offense. 4 consequences which satisfy both ends of it. 5 It doesn't contemplate an offense that has two We believe that's consistent with the reading of the 6 language. 7 structure of the guideline and we certainly believe that that's 8 consistent with the way that the guideline has been applied in 9 the cases. We believe that's consistent with the overall I was unable to find any case that's taken the 10 position that has been adopted or has been put down in the 11 presentence report so far; and as such, we ask that the Court 12 not apply the cross reference because it is not legally 13 supported in this case. 14 THE COURT: You made some reference to the presentence 15 report, and I assume you're talking about at least in paragraph 16 89 where it would describe the additional offense being that to 17 encourage and induce aliens to reside in the United States, and 18 it cites 8 U.S.C. 1324. 19 MR. CAMDEN: 20 THE COURT: It does, Your Honor. Is that the object or the purpose that is 21 tied -- at least for presentence purposes, is that the object 22 that's tied to the conspiracy itself? 23 24 25 MR. CAMDEN: I believe that that's what the presentence report contemplates, yes, Your Honor. THE COURT: Yes, sir. All right, sir. 9/24/15 - USA v. EURY - SENTENCING HEARING 13 1 Does the Government wish to be heard on this point? 2 MR. CHUT: Yes, Your Honor, and I won't be long. It 3 has been thoroughly briefed, and Mr. Camden and I discussed 4 this point at some length fulfilling our duty under Rule 32 to 5 discuss the objections. 6 First, Your Honor, there is two crimes and this is 7 reflected in the factual basis, which is also reflected in 8 paragraphs 59 and 60 of the PSR. 9 second -- two other paragraphs that pick up the factual basis. 10 To address the Winterscapes issue, which is part of the 11 factual basis for the Count One plea, there's two crimes here. 12 There's an agreement that Mr. Eury's company at his direction, 13 the direction of the president who works at his direction, 14 would prepare false I-129 petitions for Scott Porter falsely 15 stating that numerous Mexican workers were intended to work as 16 snowmakers or out-of-door janitors for the ski resorts in 17 North Carolina mountains when, in fact, the intention all along 18 was for Mr. Porter then to bring the workers into the country 19 under that false pretense and then on those visas transfer them 20 to different employers in Georgia and South Carolina working at 21 golf courses. 22 guilty, Your Honor. 23 crimes. 24 Mr. Porter pled guilty to visa fraud for this conduct. 25 Mr. Eury's conduct in conspiring facilitated Mr. Porter's I also believe there's a So this is a setup for Mr. Porter, who pled These aren't really very hypothetical They are crimes that people have pled guilty to. 9/24/15 - USA v. EURY - SENTENCING HEARING 14 1 crime, which he's pled guilty to. 2 Our objection to the application was to add not only the 3 Title 8, which it did properly induce, but also that it induced 4 obtaining visas by false pretense under 18 U.S.C. 1546(a). 5 there are double crimes, Your Honor. 6 he's -- 7 8 9 THE COURT: application. So In fact, this crime that You said your objection to the Did you misstate that? MR. CHUT: No, Your Honor. We asked probation to also 10 add to the PSR that the conspiracy facilitated visa fraud, as 11 well as having -- inducing aliens into the United States on the 12 false visas. 13 So there are two crimes, Your Honor. It makes no sense for 14 the second crime. 15 government, whether it being an agreement with Mr. Porter to do 16 the Winterscapes scam, which brought hundreds of Mexican 17 workers to the United States with H-2B visas that falsely 18 described them as snowmakers, quite frankly, and sent them to 19 different places outside of where they could legally be, but 20 also just the -- the pattern which is reflected in the factual 21 basis of forging employers' signatures on certificates they had 22 reviewed the petition, all of this only makes sense as 23 facilitating visa fraud, obtaining visas falsely, and then 24 having aliens -- inducing aliens to enter the United States on 25 falsely-obtained visas. Mr. Eury's act in obstructing the 9/24/15 - USA v. EURY - SENTENCING HEARING 15 1 THE COURT: Separate for me what you say the conduct 2 is and the crime that was being purposefully done because of 3 the underlying conduct. 4 MR. CHUT: The conduct, Your Honor, was, one, as laid 5 out in the PSR, the violation of Title 8, inducing aliens to 6 come to the United States in reckless disregard that that was 7 illegal, i.e., they're coming in as snowmakers to work in 8 Boone, North Carolina -- or, excuse me, Banner Elk and then -- 9 THE COURT: Isn't that just a consequence of the 10 initial action, as Mr. Camden would say? 11 then certainly the second one is going to happen. 12 MR. CHUT: No. If you do the one, Mr. Porter needs to act, Your Honor, 13 to have people cross to come over to his business and be sent 14 to different places, and this conduct facilitates it. 15 facilitates Mr. Porter going through the final steps of 16 bringing the people in and obtaining the visas at the 17 consulate. 18 the crimes can happen, so there's very clearly -- 19 It also What Mr. Eury has agreed to do is set the stage so THE COURT: So you're not suggesting it's an 20 additional or a secondary crime that Mr. Eury created, but 21 rather you're making reference to some crime that it 22 facilitated Mr. Porter to do. 23 MR. CHUT: 24 THE COURT: 25 MR. CHUT: Mr. Eury facilitated Mr. Porter's crime. That's what I'm saying. And that is the key fact based on the cases 9/24/15 - USA v. EURY - SENTENCING HEARING 16 1 for application of the cross reference and the Solomon case is 2 very clear. 3 of the defendant be to facilitate another crime, another 4 criminal offense. 5 company that applies for visas, is facilitating the fraud of -- 6 this second fraud, which is bringing the workers into the 7 country under false pretense and sending them a place where 8 they're not supposed to be. 9 THE COURT: The plain language only requires that the purpose Here Mr. Eury, as somebody who operates a So describe his action then in context of 10 what you're saying are the two separate things that the Court 11 is considering. 12 His conduct being to falsify the applications? MR. CHUT: Correct, Your Honor, to agree, as set forth 13 in the factual basis, to direct the ILMC employees to prepare 14 false I-129 petitions describing these Mexican workers as 15 snowmakers who were going to work in Banner Elk or Boone when, 16 in fact, they all knew Mr. Porter then was going to cross them 17 into the country and send them someplace else. 18 States would contend, yes -- 19 THE COURT: So the United So you're saying, in terms of Mr. Porter's 20 action, then his conduct in and of itself was a different 21 crime? 22 23 24 25 MR. CHUT: his conduct. Correct. He pled guilty, Your Honor, to Mr. Eury made that conduct possible. THE COURT: Was that a necessary result of what Mr. Eury may have done and this helped him? 9/24/15 - USA v. EURY - SENTENCING HEARING 17 1 MR. CHUT: Yes, Mr. Eury facilitates that by obtaining 2 the visas for him under the false pretense. 3 facilitates Mr. Porter's crime by having his company under his 4 direction participate in the scam. 5 THE COURT: 6 MR. CHUT: 7 8 9 Mr. Eury All right, sir. Your Honor, just very briefly, we agree that the guidelines are the appropriate guideline. I would just point -- there's not a lot of cases, Your Honor. They do uniformly state that the Court should focus on 10 the intent and purpose of the crime, that the plain language -- 11 and, Your Honor, it's very important for the Court to note that 12 the cross reference does not say "bribe." 13 says "offense" and it was changed to remove the word "bribe" 14 from it, Your Honor. 15 The cross reference This is a guideline that is titled, among other things, 16 "Conspiracy to Defraud by Interference with Governmental 17 Functions." 18 371, conspiracy to obstruct government function cross -- it 19 references this guideline. 20 looking at it on its face, the term "offense" it 21 cross-references cannot be limited just to bribe. 22 It is cross-referenced in the appendix 18 U.S.C. It's the appropriate guideline. In So, Your Honor, the plain intent was to facilitate the 23 obtaining of the visas, the inducing of aliens to come 24 improperly into the country; and it does apply, Your Honor. 25 ask the Court to apply it. We 9/24/15 - USA v. EURY - SENTENCING HEARING 18 1 Thank you. 2 THE COURT: I'm a little concerned and I'm not sure 3 what the intent of the Defendant's memorandum is when it says 4 that the Government has agreed that the Defendant has a 5 guideline of 12 to 18 months and you would agree on behalf of 6 the Government to a sentence of 16 months. 7 MR. CHUT: Your Honor, we were discussing the initial 8 guidelines prior to the change of plea. 9 the parties where the guidelines would come out. That was the belief of Once the PSR 10 was issued, after discussion with the defense, the United 11 States supported the guidelines. 12 of the guidelines came out in that range and the position of 13 the United States was a middle-of-the-guideline sentence would 14 be appropriate. 15 reviewing it, it appeared that the cross reference was 16 appropriate; and after discussion with the Defendant's counsel, 17 we at the United States supported the cross reference, Your 18 Honor. 19 the guideline would fall. 20 reference. 21 appropriate, Your Honor. 22 Basically, my first reading However, following the PSR coming out and My initial reading of the guidelines was that's where Probation applied the cross On review, the United States believes it's THE COURT: Mr. Camden, anything further? I was 23 concerned about that. 24 that seems to have been prior to the presentence report being 25 finally completed and revised. I read that in your position paper, but 9/24/15 - USA v. EURY - SENTENCING HEARING 19 1 MR. CAMDEN: That's correct, Your Honor. That's -- to 2 be clear, you know, that was what we contemplated prior to the 3 presentence report and I believe I can fairly state that the 4 Government even after the presentence report has taken the 5 position that it believes the cross reference applies, but also 6 believes that a sentence of 16 months would be sufficient, but 7 not greater than necessary, to meet the purposes of sentencing 8 under 3553(a). 9 THE COURT: That's a little different argument than 10 what Mr. Chut was saying. 11 to the extent that if the Court is considering 3553 factors 12 that's where Mr. Chut would come out, but I haven't heard him 13 say that yet. 14 MR. CAMDEN: I know you're making that statement That's correct, Your Honor. And I 15 certainly do not want to get out over my skis and I don't want 16 to steal Mr. Davis's thunder because that's what he's going to 17 be discussing with the Court. 18 THE COURT: 19 I'll leave that to when Mr. Davis addresses that point. 20 MR. CHUT: Yes, Your Honor. 21 THE COURT: 22 further with respect to that? 23 MR. CAMDEN: But in terms of legal argument, anything Very briefly. I think the Government 24 accurately says, you know, this is the right guideline and this 25 is the one that we go to and it cross-references under 371, but 9/24/15 - USA v. EURY - SENTENCING HEARING 20 1 I think that highlights the problem with the particular 2 interpretation that is being applied in this presentence report 3 because if that's true, if it's a conspiracy, the crime is the 4 conspiracy and then there's -- it's always a conspiracy to do 5 something, which means that there would always be a subsequent 6 offense, which means there would be a statutory index that 7 specifically directs you to take a conspiracy offense, go to 8 this guideline that by operation of this cross reference will 9 definitionally take you out to some other guideline. 10 would -- it would never apply. 11 2C1.1, but we would never actually apply 2C1.1. 12 yields an absurd result. 13 14 15 THE COURT: So it We would be told to go to I think that That may just be the nature of the guidelines because it's not just that section that it occurs. MR. CAMDEN: Certainly cross references occur 16 throughout the guidelines, but I think -- I'm not aware of any 17 other section of the guidelines where you would create this 18 sort of definitional loop where you would be looping into a 19 guideline by direction and then definitionally in every case 20 looping back out to something else, and I think that's 21 what's -- that's what this particular interpretation of the 22 guideline yields. 23 THE COURT: Would you argue that the conduct of 24 Mr. Porter, in terms of what he did, would be independent of 25 what your client had and his company did? 9/24/15 - USA v. EURY - SENTENCING HEARING 21 1 MR. CAMDEN: 2 THE COURT: Then that's separate crimes, isn't it? 3 MR. CAMDEN: I think they are absolutely separate Yes. I think it's absolutely -- 4 crimes and I think that there were acts that needed to occur 5 after those applications were submitted for those workers 6 ultimately to cross, which is the violation of 8 U.S.C. 1324, 7 and also for the visas ultimately to be issued and the person 8 who was authoring that conduct was Mr. Porter and it wasn't 9 Mr. Eury. 10 11 THE COURT: front end, could Mr. Porter's conduct have occurred? 12 13 MR. CAMDEN: Well, certainly Mr. Porter could have submitted his own request. 14 15 Well, without Mr. Eury's conduct on the He didn't submit his own request. THE COURT: But then you wouldn't need ILMC at that MR. CAMDEN: Correct, he wouldn't need ILMC at that point. 16 17 point. 18 that there's no connection between these two. 19 that there's not a sufficient connection to justify and warrant 20 the application of this guideline in this case. He certainly retained them to do that. 21 THE COURT: 22 MR. CAMDEN: 23 THE COURT: I'm not saying I'm just saying All right, sir. Thank you, Your Honor. Anything from probation at this point in 24 terms of the application of the guidelines other than what's 25 presented in the presentence report? 9/24/15 - USA v. EURY - SENTENCING HEARING 22 1 PROBATION OFFICER: 2 THE COURT: 3 4 5 Your Honor, may I approach? Yes. (Discussion at the bench between the Court and the probation officers, not recorded.) THE COURT: Taking into account the arguments that 6 have been made -- and I'll share with you the discussions there 7 that probation feels that in considering the guidelines and the 8 arguments that have been made that Mr. Chut's objection should 9 have been taken into account; that in addition to the object 10 offense being to encourage and induce aliens to reside in the 11 United States, in violation of 18 (sic) U.S.C. 1324, that 18 12 U.S.C. 1546, the fraud with respect to the visas, should have 13 been included in order to have a proper reading of the 14 guidelines. 15 the guidelines; but to be clear in terms of supporting the 16 Court's ultimate finding, that as well would be an object and 17 that seems to cover Mr. Porter's conduct, to make it clear. That doesn't change the ultimate result reached in 18 To that extent, the Court would find that the guidelines 19 were appropriately applied in this case taking into account the 20 objections that were made; that the cross reference does 21 appropriately apply; that the conduct all within Count One 22 involving the ILMC conduct that led and provided a means for 23 the violation of both 8 U.S.C. 1324 and 18 U.S.C. 1546 result 24 in a correct application of the guidelines in this case so that 25 the cross reference guideline that results of 24 would be the 9/24/15 - USA v. EURY - SENTENCING HEARING 23 1 total offense level that the Court would apply -- or the 2 adjusted offense level the Court would apply in this case. 3 Based upon those findings and considering as well the 4 acceptance of responsibility as stated in paragraphs 98 and 99 5 of the presentence report, the Court will just note for the 6 record at this point that the total offense level would result 7 of 21. 8 9 10 Solely as to that finding, do you wish to be heard further as to the Court's finding itself, other than noting your exception for the record? 11 MR. CAMDEN: 12 THE COURT: Not beyond that, Your Honor. All right, sir. Beyond that finding, and 13 those objections, are there any other objections the Court 14 would need to address in determining the advisory guideline 15 range? 16 MR. CAMDEN: 17 MR. CHUT: 18 19 No, Your Honor, none from the defense. No, Your Honor, none from the United States. THE COURT: In that regard then, the Court, having 20 made findings to support the correct application of the 21 advisory guideline ranges in this case and taking into account 22 acceptance of responsibility, would find that the total offense 23 level in this case is 21, criminal history category of I, 24 imprisonment range of 37 to 46 months, supervised release range 25 as to Count One 1 to 3 years and Count Eleven 1 to 3 years as 9/24/15 - USA v. EURY - SENTENCING HEARING 24 1 2 well, a fine range of 7,500 to $75,000. With that determination of the advisory guidelines, I'll 3 hear from counsel as to any other factors you would like to 4 present on behalf of your client. 5 6 MR. DAVIS: Thank you very much, Your Honor. If I may, Your Honor, I'd first like to introduce a few 7 members of Mr. Eury's family who are here with us. 8 wife, Susan, of 38 years; his oldest daughter, Sarah Farrell, 9 who is sitting next to Susan; his son, Craig, who is on the First his 10 other side of Susan; and their sister, Rachel, who is here in 11 the back, Your Honor, next to the door. 12 Sarah's husband, Mr. Eury's son-in-law, Dan Farrell. 13 raising his hand right here, Your Honor. 14 Dr. Susie Abernathy; his brother-in-law, the Reverend Dean 15 Abernathy; their children, Kristen and Judson; and his mother, 16 Lelia Eury. Also with us today are Dan is Mr. Eury's sister, 17 Your Honor, as you can see, I've introduced his immediate 18 family members, and I've stopped there because there are also 19 more extended family and friends and professional colleagues 20 here than I could begin to introduce. 21 them, I believe, in the wonderful letters that many of them 22 have written and submitted. 23 The Court has heard from Your Honor, consistent with the discussion a few minutes 24 ago, we will request a variance under Section 3553. 25 discussed a moment ago, these issues were discussed at great As was 9/24/15 - USA v. EURY - SENTENCING HEARING 25 1 length before the change of plea in the case, Your Honor, 2 which, of course, was before the PSR. 3 the application of the cross reference -- and at the time we 4 all believed that it would not apply -- but we also discussed 5 what the appropriate sentence would be. 6 We discussed not only And at that time, believing that the guideline range would 7 be the 12- to 18-month range, we discussed the fact that the 8 Government's position would be that the sentence -- an 9 appropriate sentence would be in -- toward the middle of that 10 range at 16 months and that we would request the low end of 11 that range, which, of course, is in Zone C. 12 range -- and I recognize the Court has found that we are not. 13 But were we in that range, the low end of Zone C would be a 14 split sentence. 15 So were we in that So our request remains the same, Your Honor. We believe that this is a very close question under the 16 guidelines but doesn't change what the sufficient, but not 17 greater than necessary, sentence ultimately is. 18 address that, but I understand his position on that has not 19 changed any more than ours has. 20 Mr. Chut will Your Honor, Section 3553 does require a sentence that is 21 sufficient, but not greater than necessary. 22 breath, it directs that the sentence must be no more than is 23 absolutely necessary to comply with the purposes of sentencing. 24 And so putting it differently, a prison sentence is -- it's 25 what's most commonly granted in the court, but it is the In the same 9/24/15 - USA v. EURY - SENTENCING HEARING 26 1 sentence of last resort. 2 other remedies will not accomplish the purposes of sentencing; 3 and when a prison sentence is imposed, it's authorized only to 4 the extent that is necessary to comply with purposes of 5 sentencing. 6 Statutorily it's authorized only when We would suggest, Your Honor, that a split sentence at the 7 bottom of the range accomplishes that here and I want to go 8 through each of the factors under Section 3553. 9 case, maybe not uniquely but very unusually, by going through 10 11 I think this the factors, illustrates exactly why that's the case. Your Honor, the first purposes, of course, that are listed 12 are the nature and circumstances of the offense and the history 13 and characteristics of the defendant. 14 far different from the conventional offenses that we generally 15 address here in this courtroom. 16 actual or threatened. The offenses here are They do not involve violence, They don't involve weapons. 17 THE COURT: Is the harm any less, Mr. Davis? 18 MR. DAVIS: Yes, Your Honor, absolutely. There is -- 19 the government is the victim here and the government has 20 suffered no loss. 21 Your Honor. 22 The harm is much less than in those cases, That does not change -- every criminal offense is serious, 23 Your Honor. 24 question is on the -- on the range of criminal offenses where 25 this falls. He has acknowledged responsibility, but the The question is not whether it's serious, but, as 9/24/15 - USA v. EURY - SENTENCING HEARING 27 1 one of the other factors addresses, it's the seriousness, how 2 serious. 3 And we have a situation here where we are in agreement with 4 the Government, that the government is the only victim and the 5 government did not suffer a loss here, Your Honor. 6 vastly different than a situation where we have actual harm to 7 someone or even theft in white-collar cases where something is 8 stolen by one means or another. 9 THE COURT: So it is We're still talking, though, by all 10 agreement, a loss of $3,200,000. 11 it a lesser amount of some $2 million -- $2,000,083, somewhere 12 in that -- $2,000,834, whatever the number might be? 13 are we talking about, if at all here? 14 15 MR. DAVIS: Is that still correct or is What loss We are not talking about a financial loss, Your Honor. 16 THE COURT: All right, sir. 17 MR. DAVIS: Even under the cross reference under 2L 18 we're talking about the number of visas, not any loss. 19 no alleged loss from the Government. 20 There's The gravamen of the offense is dishonesty in dealing with 21 the government and that is serious. 22 must be a consequence for it, but nothing about this case, Your 23 Honor, demands that that consequence be severe. 24 25 The government -- there Closely tied, of course, to the nature and circumstances of the offense right in the language of the statute are the 9/24/15 - USA v. EURY - SENTENCING HEARING 28 1 history and characteristics of the defendant, and once again 2 the letters the Court has seen tell a firsthand story that if I 3 tried to summarize I would not be able to do accurately or 4 adequately or even helpfully. 5 those folks speak for themselves and extraordinarily well. 6 What they show is that he has lived an exemplary life of work 7 and service, adored by his family, admired by his professional 8 colleagues, trusted by his friends. 9 The Court has seen those, and He's been broken by this process over the last two years. 10 He's been publicly shamed, but this does not define him because 11 his life and his relationships, as the Court can see, are not 12 built on his professional identity and that's why you see what 13 we see here today, Your Honor. 14 they love him. 15 of what he means in each of their lives individually. 16 These people are here because They know what he did, but they're here because Your Honor, the next statutory factor that I've already 17 touched on is the seriousness of the offense, but again, the 18 Court must evaluate the relative seriousness of the offenses 19 before it. 20 did not suffer a loss. 21 The government was deceived. And this is important as well. That's wrong, but it To the extent -- when we 22 talk about visa fraud. 23 contributed to people entering the country who should not have, 24 those were still temporary visas and the workers returned home 25 just as they would have if the process had been followed To the extent that Mr. Eury's offenses 9/24/15 - USA v. EURY - SENTENCING HEARING 29 1 correctly. 2 where people come in and stay. 3 the kinds of sentences available make the necessary prison 4 sentence short. 5 This is not the conventional visa fraud case even A consequence is necessary, but Mr. Eury has lost a great deal. He's lost a company that 6 he owned and his daughter ran. 7 this court to misdemeanors and she lost her job. 8 hundreds of thousands of dollars to the government as it was 9 going under. His daughter has pled guilty in ILMC paid That was a direct loss to Mr. Eury, who owned the 10 company; and on top of that, he has already paid another 11 $600,000 as a part of this plea, Your Honor. 12 Court still has the ability to impose a fine and the PSR 13 authorizes supervised release of up to three years, which would 14 put Mr. Eury under the Court's supervision into his late 60s, 15 Your Honor. 16 Of course, the Your Honor, the next statutory factor is deterrence. 17 That's already been accomplished in this case. 18 of people who are involved in the federal guest worker program 19 is very small and this case has received wide publicity. 20 is not a single person involved in that industry who is not 21 very well aware of what this case has done to Mr. Eury, to his 22 business, and even to his family. 23 destroyed. 24 convicted of crimes. 25 consequence. The community He's a felon. There ILMC was His daughter, whom the industry also knows, was He's had a dramatic financial The message has been sent and the message has 9/24/15 - USA v. EURY - SENTENCING HEARING 30 1 been received with absolute clarity throughout the industry. 2 Anything more would be unnecessary for the statutory purpose of 3 deterrence, Your Honor. 4 Your Honor, the next factor is the need to protect the 5 public from further crimes of the defendant and there is -- 6 there's no such need here. Mr. Eury has no criminal history 7 other than traffic matters. There's not even the pattern of 8 civil or administrative penalties that often precedes a 9 prosecution that involves government agencies. The PSR 10 acknowledges that Mr. Eury has performed well in the nearly two 11 years now that he has been on pretrial release. 12 in this case are in the past and the victim was the government, 13 not the public. 14 him. 15 His offenses There's no need to protect the public from The next factor I think pretty plainly doesn't apply, the 16 need to provide the defendant with educational or vocational 17 training. 18 extensive professional and business experience and is 19 approaching the end of his career. This is a man who is college educated and has 20 Your Honor, I've also already touched on the kinds of 21 sentences available, which is the next factor, but that one is 22 worth revisiting. 23 If other means are sufficient to comply with the purposes of 24 sentencing, then a prison sentence is permitted only to the 25 extent it is necessary to comply with those purposes. The mandate of the statute is very plain. As the 9/24/15 - USA v. EURY - SENTENCING HEARING 31 1 PSR indicates, the remedies available to the Court include 2 probation. 3 argue that with great personal conviction, but I'm not. 4 this case, the deterrence of others is the primary purpose of 5 sentencing and that has already been accomplished in spades. 6 No more is necessary. 7 For all the reasons I've already discussed, I could In But, Your Honor, another available sentence is the split 8 sentence that I mentioned earlier and that segues very neatly 9 into the next statutory factor, which is the guidelines. The 10 guidelines under the range that we all believe would apply 11 specifically would contemplate a split sentence and the 12 availability of a split sentence is critically important here. 13 Mr. Eury going to prison for any length of time would generate 14 all the deterrent effect the Government wants and believes it 15 needs even beyond what has already been accomplished. 16 But Mr. Eury's family circumstances are truly unique, Your 17 Honor. 18 palsy, Your Honor. 19 is debilitating. 20 relies on him heavily. 21 going to suffer in this case has already occurred for the most 22 part. 23 will add to that. 24 but it will fall even more heavily on his family, Your Honor. 25 He's the primary caretaker for Rachel, who has cerebral His wife suffers from Lyme disease, which His 90-year-old mother lives next door and The fact is that the anguish he is He's suffered through stress and shame, worry. Prison The burden of being absent would be heavy, And it's very important to note here that the PSR actually 9/24/15 - USA v. EURY - SENTENCING HEARING 32 1 specifically notes that Mr. Eury's family circumstances and 2 other factors might warrant a downward variance. 3 officer, while we disagree about the application of the cross 4 reference, specifically noted that in her recommendation. 5 The probation Next is the need to avoid unwarranted sentence disparities 6 among defendants with similar records who have been found 7 guilty of similar conduct. 8 reason. 9 sentenced are Mr. Eury's daughter, Sarah, and Scott Porter, who I cite the language in detail for a In this case, the other individuals who have been 10 we have already discussed. 11 misdemeanors and her sentence was probation. 12 actually committed and was convicted of the crime that we've 13 been discussing as the basis for the cross reference, visa 14 fraud, and was also convicted of money laundering, received a 15 12-month prison term which was later reduced to 5 months; and 16 he's due for release in about six weeks, according to the BOP. 17 Ms. Farrell pled guilty to two Mr. Porter, who A couple of points are important as to how the Court 18 considers those other sentences. 19 Mr. Eury has not been convicted of visa fraud, he's not been 20 convicted of money laundering; and that's very important 21 because the statutory factor itself in the language of 3553 22 applies by its terms to people who have been found guilty of 23 similar conduct. 24 visa fraud and money laundering. 25 Again, unlike Mr. Porter, He has not even been found guilty of that Now, also, as the Government -- we talked a moment ago 9/24/15 - USA v. EURY - SENTENCING HEARING 33 1 about what Mr. Eury did and used his name in talking about the 2 contribution to Mr. Porter's scheme. 3 Government has acknowledged in the factual basis and it's 4 mentioned in the sentencing memo as well, at the time of 5 Mr. Porter's crimes -- and he had been a client of ILMC for a 6 number of years. 7 Mr. Eury had relinquished leadership of ILMC to Sarah and was 8 not involved in the day-to-day activities anymore. 9 involvement in the larger business and policy issues at ILMC, 10 but when the -- when the documents talk about the connection 11 between Porter to ILMC, they don't use Mr. Eury's name. 12 talk about what ILMC knew about what Mr. Porter was doing. 13 In fact, as the At the time of this Winterscapes scheme, Why does that matter? Mr. Eury -- excuse me. He had some They Mr. Porter 14 was the architect of this scheme Winterscapes, an entire 15 business that was set up so that he could draw workers into the 16 country purportedly to do snowmaking in the mountains and, in 17 fact, ship them to do landscaping elsewhere. 18 Mr. Porter's doing. 19 in past years when he was not carrying out that scheme. 20 his sentence, Your Honor, where he's actually been convicted of 21 visa fraud and money laundering, being at 12 months, reduced to 22 5, is important. 23 That was He paid ILMC no more than he had paid them And so Your Honor, the final statutory factor is the need to 24 provide restitution to victims, which for the reasons we 25 discussed before does not apply here. 9/24/15 - USA v. EURY - SENTENCING HEARING 34 1 Your Honor, what's very clear about Section 3553(a) is that 2 it requires a particularized, personalized sentence. 3 with the nature and circumstances of the offense and the 4 history and the characteristics of the individual defendant. 5 And I repeat myself, but I can't repeat myself enough, that it 6 requires a sentence that is sufficient, sufficient, but not 7 greater than necessary, to comply with the purposes of 8 sentences -- sentencing. 9 defendant makes a lengthy prison term necessary. 10 It starts Nothing about this case or this The letters the Court has seen are among the most powerful 11 I've ever seen and they describe the man that I've come to know 12 over the last couple of years, a man that to know him and work 13 with him is to know his family, to be welcomed at his kitchen 14 table, to know Susan and Sarah and Craig and Rachel. 15 Mr. Eury's community will be harmed, not protected, by his 16 absence. 17 and his family, most of all his completely innocent and 18 disabled daughter, his ill wife, and his mother will be 19 devastated. 20 His employees will suffer. His workers will suffer Their lives will be fundamentally altered. The Court simply need not do that to accomplish the 21 purposes of sentencing in this case, Your Honor; and if it need 22 not do it under the plain language of the statute, it must not 23 do it. The deterrent message is loud and clear in this case. 24 Among the kinds of sentences available to the Court, a Zone 25 C split sentence will be more than sufficient to accomplish the 9/24/15 - USA v. EURY - SENTENCING HEARING 35 1 purposes of sentencing and so we respectfully request, Your 2 Honor, a split sentence and that that sentence be at the low 3 end of the 12- to 18-month range, Your Honor. 4 Thank you. 5 THE COURT: 6 MR. CHUT: 7 Does the Government wish to be heard? Yes, Your Honor. Your Honor, I agree that Mr. Eury has a -- is a good family 8 man, takes care of his family. 9 little. Besides that, I agree with very I think the low end of the guidelines is appropriate 10 as set forth in the PSR. 11 on the sentencing factors varies downwards, I ask it go no 12 further down than 16 months. If the Court in its discretion based 13 Let me start with disparity. 14 disparity cuts two ways, Your Honor. 15 requires a greater sentence than the other offense mentioned, 16 as well as his codefendants that just pled guilty to Count 17 Eleven. 18 One, Ms. Farrell. Mr. Eury's conduct -Mr. Eury's conduct Ms. Farrell is a 30-something-year-old 19 daughter of Mr. Eury who was trained by Mr. Eury and put in 20 charge of his company, of which he retained financial control. 21 He made millions of dollars through ILMC's fraud while she was 22 a salaried employee. 23 was trained in this job by Mr. Eury misdemeanors. 24 not mean his sentence should have any relationship to that. 25 Mr. Porter, before he got the 12 months, had already It is justice to give a 30-year-old who That does 9/24/15 - USA v. EURY - SENTENCING HEARING 36 1 received the benefit of a 5K motion. 2 defendant who cooperated with the United States and pled to a 3 fairly limited role of conduct as one of very many clients of 4 ILMC. 5 Count One and the ASAP conduct in Count Two. 6 which is why it should be no lower than 16 months in the 7 Government's opinion, Your Honor, needs to reflect the more 8 serious nature of his conduct. 9 So we're talking about a So the disparity -- Mr. Eury has the ILMC conduct in His sentence, I am bothered, Your Honor, by the reference to 10 Ms. Farrell's sentence. 11 should not be a sentence considered in this Court's 12 consideration based on the extremely different circumstances. 13 Very, very different situation. That Your Honor, when we say only the government is the victim, 14 the government of the United States exists to represent the 15 people of the United States. 16 functions, both of which are exercised in the sovereignty of 17 this country. 18 unwarranted use of foreign workers in temporary jobs. 19 controls the entry of foreign workers into this country and 20 where they're going to be. The H-2B program serves two One, it protects American workers from the Two, it 21 Those are extremely important functions that are exercised 22 on behalf of the people of the United States by the Department 23 of Labor, by the Citizenship and Immigration Service. 24 very concerned when they say, "Hey, Your Honor, it's not that 25 big a deal. So I'm It's just an offense against the government." 9/24/15 - USA v. EURY - SENTENCING HEARING 37 1 This is a system in place to protect the people of the United 2 States and protect the sovereignty of the United States. 3 It's extraordinarily serious when a citizen makes enormous 4 amounts of money gaming that system, creating fraud with that 5 system, especially when it impacts the functions of the State 6 Department and USCIS in determining who comes to this country. 7 When you issue H-2B visas, Your Honor, to folks, to Mexican 8 workers who, for the most part, want to come here to do an 9 honest job and you put on that visa they're supposed to be one 10 place and they end up someplace else, they're out of status. 11 That's a serious problem. 12 The seriousness of this offense needs to drive the 13 sentence, Your Honor, and it's not a minor offense. 14 extremely serious offense. It's an 15 Respect for the law drives a sentence also. 16 through his own actions, the actions of his company, 17 International Labor, which I remind the Court pled guilty to 18 almost 40 felonies for visa fraud, for inducing aliens to enter 19 this country, showed a contempt for the laws of the United 20 States. 21 members of this industry that the laws of the United States 22 matter; that gaming the system, relying on the forms for 23 financial advantage are not appropriate. 24 25 Mr. Eury The sentence here needs to convey to others and to Likewise, deterrence is extremely important to indicate these programs will be upheld by the United States, that 9/24/15 - USA v. EURY - SENTENCING HEARING 38 1 they're important, that the truthful participation which 2 protects American workers and Mexican workers for that matter 3 is essential. 4 So, Your Honor, I would emphasize the need for the sentence 5 to reflect the extreme seriousness of the crime, respect for 6 the law, and deter others from treating the laws of the United 7 States like they simply don't matter. 8 Based on that, Your Honor, I'd ask the Court to take those 9 matters into consideration in exercising its discretion in 10 forming a sentence that is sufficient, but not greater than 11 necessary, in determining -- or rather to depart downward and 12 that would be the argument of the United States, Your Honor. 13 THE COURT: Stand up, Mr. Eury. In addition to what 14 your attorney has said in your behalf, is there anything you 15 wish to say? 16 17 THE DEFENDANT: Yes, Your Honor. Your Honor, thank you for the opportunity to address the 18 Court today. This is the most humbling and humiliating day of 19 my life. 20 suffer through all the pain and humiliation that I have caused. 21 This has taken a toll on all of us physically, emotionally, and 22 financially. 23 I have already lost. My family, who I am deeply devoted to, has had to I'm a changed person and I will never regain what 24 Having said that, the incidents that bring me before you 25 today do not represent my life's work, nor do they represent 9/24/15 - USA v. EURY - SENTENCING HEARING 39 1 the content of my character. 2 meager means but rich in love and faith. 3 was 15 years old. 4 if I worked hard enough. 5 lived the American dream, and I've been fortunate enough to do 6 both well and good through my work. 7 I was brought up in a family of I have worked since I My father taught me that I could do anything I believed him and I still do. I've I'm humbled by the outpouring of support from my family, my 8 friends, my church, my coworkers, and the farmers that I serve 9 who have taken their valuable time away from their work and 10 their families to write letters to the Court and to travel here 11 today to be with me. 12 stronger and I found a stronger bond to many new friends who 13 have come to stand up for me. 14 deeper. 15 and I will forever remember their love, prayers, and support. 16 My closest friendships have been made My faith in God has grown All these things let me know I am a truly blessed man I appreciate whatever grace and mercy the Court might show 17 me when deciding the punishment for my crime and impose a 18 sentence that would allow me to continue to care for my 19 daughter, my wife, and my elderly mother. 20 21 THE COURT: All right, sir. Anything further, Mr. Davis? 22 MR. DAVIS: No. 23 THE COURT: The Court has considered the calculations Thank you, Your Honor. 24 resulting from an application of the guidelines; and for 25 reasons the Court has stated, the Court has found that the 9/24/15 - USA v. EURY - SENTENCING HEARING 40 1 guidelines were appropriately applied, including any cross 2 reference that resulted in the total offense level of 24. 3 Taking the guidelines into account on an advisory basis, the 4 Court noted a total offense level of 21, criminal history 5 category of I, imprisonment range of 37 to 46 months. 6 As well, the Court has considered taking into account 7 arguments made by counsel and the Government with respect to 8 3553 factors. 9 a serious offense. Indeed, as both parties have suggested, this is The Court will not attribute the loss to 10 the government as being minor to the extent that the laws have 11 been put in place to protect both citizens and noncitizens that 12 come and provide work within the United States. 13 matter that must be respected or otherwise there would be 14 extreme damage to our way of life as a part of citizens of the 15 United States and to the economy. 16 This is a Noting the seriousness of the offense, the Court also notes 17 the history and characteristics of the Defendant. 18 has reviewed each and every letter that's been presented on the 19 Defendant's behalf and has no question but to suggest that he 20 has strong family faithwise and community support. 21 The Court With respect to his history and characteristics, the Court 22 would note the Defendant does indeed provide a stable force for 23 his family, both his children and his wife and his mother. 24 That is shown consistently throughout the papers that have been 25 presented to the Court. 9/24/15 - USA v. EURY - SENTENCING HEARING 41 1 The Court also takes into account the need for deterrence 2 and that the conduct in this case is not something that should 3 continue or provide any opportunity for others to think that 4 they would be treated lightly before this Court and any other 5 Court. 6 The Court does think that deterrence is important. Any 7 sentence the Court will impose will take into account the need 8 of deterrence not only for this defendant or anyone else who 9 would engages in such similar conduct. 10 The Court has considered any question of disparity; but 11 there are reasons, as suggested by the Court, that there were 12 differences in treatment of the Defendant's daughter or any 13 other defendants who were engaged in the activity that was made 14 possible by this Defendant's conduct. 15 Court will depart from the advisory guideline range previously 16 announced of 37 to 46 months. 17 To that extent, the The Court in fashioning a sentence, however, will impose a 18 sentence that promotes respect for the law, provides for 19 deterrence, and will indeed be sufficient, but not greater than 20 necessary, to meet the sentencing objectives of 3553 and taking 21 into account all factors under 3553 and also considering valid 22 reasons for departing from the advisory guidelines. 23 extent, the Court has indeed viewed the guidelines as advisory 24 and will impose a sentence in view of 3553 factors as the Court 25 has announced. To that 9/24/15 - USA v. EURY - SENTENCING HEARING 42 1 The guideline range that resulted does not exceed 24 2 months, but the Court has made reasons for varying and 3 providing a sentence in this case. 4 As to Count One, the Court, as part of a variant sentence, 5 will impose the following judgment: 6 committed to the custody of the Bureau of Prisons for a term of 7 13 months followed by 3 years of supervised release. 8 9 10 11 12 It is ordered Defendant is He's ordered to pay a special assessment of $200. This is due and payable immediately. The Court will impose a fine of $15,000 to be paid under a schedule as determined by the Court. In Count Eleven, the Court as well will impose a prison 13 sentence to the Bureau of Prisons for a term of 13 months to 14 run concurrently with the sentence imposed in Count One, as 15 well followed by 3 years of supervised release, which shall run 16 concurrently. 17 In addition to the usual terms and conditions of supervised 18 release, the Court will order the Defendant is to provide any 19 requested financial information to the probation officer. 20 As well, he should notify the Court of any material changes 21 in his economic circumstances that might affect his ability to 22 pay any restitution or special assessment or fine -- excuse 23 me -- any fine or special assessment the Court has imposed. 24 25 Mr. Davis, is there any need for substance abuse in this case? I notice there was some reference to the Defendant's 9/24/15 - USA v. EURY - SENTENCING HEARING 43 1 prior conduct that involved some limited aspect of controlled 2 substances violation. 3 MR. DAVIS: No, Your Honor, there is not. 4 THE COURT: The Court will suspend that portion of 5 6 7 8 9 mandatory drug testing in this case. Mr. Chut, you would agree there is no restitution to be provided in this case? MR. CHUT: Yes, Your Honor. And Mr. Eury has completed his forfeiture payment, Your Honor. He is in full 10 compliance with the plea agreement as to the forfeiture of 11 $600,000 to the United States. 12 THE COURT: With respect to the $15,000 fine to be 13 paid, Mr. Davis, have you consulted with your client as to what 14 would be a reasonable amount for him to pay toward that fine in 15 this case? 16 MR. DAVIS: Your Honor, may I? 17 THE COURT: Yes. 18 (Discussion between Mr. Davis and the Defendant.) 19 MR. DAVIS: 20 forfeiture was a challenge. 21 months to pay the $15,000 fine, Your Honor. 22 23 THE COURT: Your Honor, meeting the $600,000 We would request at least two All right, sir. The Court will order the $15,000 fine to be paid into the 24 office of the clerk of the Middle District on or before 25 November 27th, 2015. To the extent the Defendant does not 9/24/15 - USA v. EURY - SENTENCING HEARING 44 1 comply by that date, the Court will find it reasonable and 2 feasible for the Defendant to pay monthly installments of $300 3 per month to begin 60 days after commencement of the term of 4 supervised release and continue paying that amount during the 5 entire term of supervised release or until paid in full. 6 The Court will recommend the Defendant be designated to a 7 Bureau of Prisons facility as close as possible to his family 8 and/or to his residence. 9 Mr. Davis, Mr. Camden, have you had an opportunity to speak 10 to your client concerning any rights of appeal he may have with 11 respect to the judgment the Court has imposed? 12 13 14 MR. DAVIS: We have, Your Honor, and we will discuss it further. THE COURT: Please remind him, if you would, if he 15 should choose to file notice of appeal it must be done in 16 writing within 14 days of the entry of the Court's judgment. 17 Anything further from the Government or the Defendant? 18 MR. CHUT: No, Your Honor. Thank you, Your Honor. 19 THE COURT: 20 PROBATION OFFICER: 21 THE COURT: Mr. Davis, anything further? 22 MR. DAVIS: Briefly, Your Honor. Anything further from probation? No, Your Honor. There hasn't been 23 any discussion. 24 self-report, as suggested by the PSR; and the remaining counts 25 would need to be dismissed, Your Honor, including the remaining I would expect he would be allowed to 9/24/15 - USA v. EURY - SENTENCING HEARING 45 1 2 3 4 objections and sections of Counts One and Eleven. THE COURT: Any counts or objects as stated in the indictment are hereby ordered dismissed. The Court will give the Defendant a reporting date of 5 November 20th, 2015, by two o'clock p.m. at such Bureau of 6 Prisons facility that may be designated by the Bureau of 7 Prisons or by the Marshal Service. 8 comply with any conditions of pretrial release under which he's 9 currently serving. 10 Until that time he's to Anything further? 11 MR. DAVIS: No. 12 THE COURT: He may speak with the probation officer, 13 if necessary, before he leaves. 14 MR. CHUT: 15 THE COURT: 16 17 18 19 20 21 22 23 24 25 Thank you, Your Honor. Thank you, Your Honor. We'll take a 15-minute recess. (Proceedings concluded at 3:55 p.m.) 9/24/15 - USA v. EURY - SENTENCING HEARING 46 1 C E R T I F I C A T E 2 I, LORI RUSSELL, RMR, CRR, United States District Court Reporter for the Middle District of North Carolina, DO HEREBY CERTIFY: 3 4 5 6 That the foregoing is a true and correct transcript of the proceedings had in the within-entitled action; that I reported the same in stenotype to the best of my ability and thereafter reduced same to typewriting through the use of Computer-Aided Transcription. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lori Russell, RMR, CRR Official Court Reporter Date: 9/28/15