Case Document 29 Filed 07/25/19 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

UNITED STATES OF AMERICA,


Case No. 

HECTOR MAY,

Defendant.



 

 

Kevin Conway, Esq.

80 Red Schoolhouse Road, Suite 1 10
Spring Valley, New York 10977
Attorneyfor Defendant Hector May

Dated: July 25, 2019

Case 7:18-cr-00880-VB Document 29 Filed 07/25/19 Page 2 of 12



Defendant Hector May (?Defendant? or ?Mr. May?) pled guilty and allocated to his
criminal conduct on December 13, 2018 to one count of conspiracy to commit wire fraud in
violation of 18 USC. 1349 and one count of investment adviser fraud in violation of 15 USC. 
80b-6 and 80b-17. Sentencing is scheduled for July 12, 2019.

In preparation for sentencing, United States Probation (?Probation?) drafted a Presentenee
investigation Report dated February 7, 2019. Mr. May?s base offense level was calculated
at 7. The PSR recommended a twenty-level increase because of the amount of loss; a four?level
increase because of the number of victims; a two-level increase because the offense involved
sophisticated means; and a two-level increase for Defendant?s abuse of his position of public trust,
raising his sentencing guidelines? (?Guidelines?) level from a 7 to a 39. PSR, W5. A three?level
reduction was deemed applicable because of Mr. May?s acceptance of responsibility and therefore,
his total offense level was calculated at 36.

Ultimately, based on the Guidelines and considering 18 USC 3553(a) factors of age,
nonviolent offense and lack of criminal history, Probation recommended the following sentence: a
term of incarceration of 120 months (re?ecting a downward variance of 68 months from Guideline
Range 188-235), three years supervised release, restitution in the amount of $8,041,233.17 and

forfeiture in the amount of$11,452,185. PSR, p. 25.

Case 7:18-cr-00880-VB Document 29 Filed 07/25/19 Page 3 of 12

gm LAW
1. Statutory Factors Set Forth In 18 U.S.C. 3553(a)

The federal sentencing system is ultimately governed by 18 U.S.C. 3553(a) (?Section
United States v. Booker, 543 US. 220, 233-34 (2005). According to Section
3553(a), ?[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply
with the? following:

(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;

18 U.S.C. 3553(a)(2). As applicable here, in determining the appropriate sentence, the court is
directed to consider the following:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established form?
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines

(5) any pertinent policy statement?-

(A) issued by the Sentencing to any
amendments . . . 

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. 3553(a).

Case Document 29 Filed 07/25/19 Page 4 of 12

II. Sentencing Guidelines

In determining the appropriate sentence, courts are also directed to consider the
sentencing guidelines (?Guidelines?) promulgated by the United States Sentencing Commission.
28 U.S.C. 994. Although the Guidelines are merely advisory, Egglger, 543 U.S. at 259-60,
courts are instructed to ?begin all sentencing proceedings by correctly calculating the applicable
Guidelines range.? Gall v. United States, 552 U.S. 38, 49 (2007) (citation omitted).

Given Mr. May?s criminal conduct and that he has no other criminal history, the

 

Guidelines? ?base level offense? is a 7. 18 U.S.C. Appx. see also PSR, 15. Total
enhancements and reductions as applied by Probation result in 32-1evel increase and 3~level

decrease for a total offense level of 36.

FAQTQRE EJMERATED 113 i195 
.. ., l. M, 

     

1. Section 3553(a)(2)(1): Nature and Circumstances cf the Offense

As Mr. May?s plea and allocution reflect, there is no excuse for his actions. He has not
asked for his family?s support at sentencing, has not requested letters of support from friends or
community members and he has not attempted to paint a picture of his life and good deeds as
anything other than a smokescreen. Notwithstanding same, two individuals from his past, an Iraq
war veteran, and the President and CEO and the Rockland County Business Association, have
come forward and provided voluntary letters of support for Mr. May [Exhibit However, in his
own words, he ?lived a lie? and although his intentions from the beginning were not to scheme or
defraud, his poor judgment, lack of expertise in financial planning and general insecurities
facilitated and maintained acts of fraud and deceit against people he considered friends and family

for many, many years.

Case Document 29 Filed 07/25/19 Page 5 of 12

Mr. May is not asking for the Court?s sympathies, nor does he believe he deserves it.
However, as Probation cites in the PSR, Mr. May?s non?violent conduct (as it relates to the offense)
and his first-time offender status are nonetheless factors in support of a sentence below the advisory

guideline range. PSR, 

II. Section 3553(a)(1): History and Characteristics of the Defendant

The PSR adequately describes Mr. May?s social, education and employment history and
does not need to be duplicated here. Born the son of immigrant parents, Mr. May was raised to
develop a strong work ethic and concern for the community. Somewhat stigmatized by his lack of
formal education he struggled with and was never able to finish college Mr. May prided himself
on started his own business, Executive Compensation Planners, on December 27, 1982.

Mr. May never set out to defraud his clients; it was never a long-contemplated plan to
scheme and steal from hard working people who were awesome, his friends. Mr. May wanted to be
a successful businessman not only for himself, but for his clients. However, when he started to
struggle, and his business was not as prosperous at he hoped, he thought he could take money to
cover expenses both personal and business related and eventually put the money back.
However, that never happened, and his losses only compounded and the money he took only
increased. it can be argued that Mr. May crimes were an attempt to remain legitimate and keep his
status as a contributing member of the community.

Surely, if ever a person is to receive credit for the good he has done, and his immediate
misconduct assessed in the context of his overall life hitherto, it should be at the time ofsentencing,
when his very future hangs in the balance. This elementary principle of weighing the good with the
bad, is necessary for the Court to consider "the history and characteristics of the defendant." US. v.

Adelson 441 F.Supp.2d 506 (SDNY 2006).

Case Document 29 Filed 07/25/19 Page 6 of 12

Over the course of several decades, Mr. May advised county executives, fought for the
poor, advanced the causes of Latinos and sat on the boards of business associations and nonpro?ts
across Rockland. He and his ?rm contributed to political campaigns on both sides of the aisle. He
was appointed the Executive Board of People to People, Rockland County?s largest food pantry
working to help struggling Rocklanders through dif?cult times with dignity through its programs.
He was treasurer of Housing Opportunities for Growth, Advancement and Revitalization, known as
HOGAR, in the 1990s. A member of Hispanic Coalition of Rockland County, he raised concerns in
2002 that a county redistricting of Haverstraw village could curb Hispanics' clout. In 2005, the
Rockland Development Council named May outstanding volunteer of the year, noting his
contributions to charities including St. Dominic's Home, People to People and the Monsey Medical
Center. Mr. May was also appointed to a panel in 2012 to help decide the fate of the ?nancially
ailing Summit Park Hospital and Nursing Care Center. Community members most familiar with
Mr. May described him as ?part of the fabric of Rockland." He was the recipient of the Rockland

Business Association?s Pinnacle Award several years ago.

A. Hector May?s Age and Medical Condition

Mr. May is 78 years old. Sentenced to any signi?cant period of incarceration, it is very
likely he will die in prison. According to Dr. Richard King, Mr. May?s treating physician, Mr. May
has ?several conditions which must be monitored on an ongoing basis?. [Exhibit 1] These
conditions include Diverticulitis, Type 2 Diabetes, Obesity, Hypertension and Asthma. In his
professional opinion, Dr. King believes these conditions could become serious issues if monitoring
(and necessary treatment) is not on a continual basis. 

In addition, according to pulmonologist, Dr. Joseph Ghassibi, Mr. May has a longstanding

history of severe sleep apnea and has been on 3 Continuous Positive Airway Pressure (CPAP)

Case Document 29 Filed 07/25/19 Page 7 of 12

machine for the past 15 years. [Exhibit 2] Although CPAP machines are allowed in the BOP, it
takes time to process the prescription and Mr. May will presumably be without one until facility
physicians approve and secure its use.

According to a 2016 report by the Of?ce of the Inspector General on the impact of an aging
inmate population on the Federal Bureau of Prisons it was found that

inmates are more costly to incarcerate than their younger counterparts

due to increased medical needs. We ?trtherfound that limited institution sta?'and

inadequate staff training affect the BOP ?s ability to address the needs of aging

inmates. The physical in?rastructure of BOP institutions also limits the

availability of appropriate housing for aging inmates. Further, the BOP does not

provide programming opportunities designed speci?cally to meet the needs of

aging inmates. We also determined that aging inmates engage in fewer

misconduct incidents while incarcerated and have a lower rate of re-arrest once

released; however, BOP policies limit the number of aging inmates who can be

considered for early release and, as a result, few are actually released early. I

Based on the abovementioned, it is reasonable to conclude that Mr. May?s incarceration no matter

the length will not be without the risk of complication or hardship.

B. Collateral Consequences of Offense

Mr. May had been a central figure in his family and a member of the Rockland
Community. After his arrest combined with the scrutiny of the media, Mr. May severed nearly all
his social ties and his relationship with his family, in particular his wife and children, was severely
damaged. Understanding Mr. May?s responsibility in this aftermath does not depreciate the
seriousness of the collateral consequences of the offense. His wife, has reportedly been suffering
from severe depression following Mr. May?s arrest. Her future is certain and her ability to
?nancially support herself in her senior years is severely impacted. Mr. May?s daughter, who

worked with him for a number of years, is also ensnarled in civil litigation. Mr. May?s personal and

 

505.pdf

Case 7:18-cr-00880-VB Document 29 Filed 07/25/19 Page 8 of 12

professional reputation is destroyed, and this will haunt him as he possibly spends the remainder of
his life in prison.

In the present instance, the destruction of the defendant?s business has already achieved to a
significant extent some although not all of the objectives otherwise required to be sought through
the sentencing process. Elimination of the defendant?s ability to engage in similar or related
activities or indeed any major business activity for some time, and the substantial loss of assets
and income resulting from this have decreased for the foreseeable future his ability to commit
further crime of the type he was tempted to undertake, and constitutes a source of both individual
and general deterrence. Others engaged in similar activities or considering engaging in them have
doubtless already learned through informal sources that loss of the business entity involved is an

obvious consequence of such illegal behavior.2

C. Hector May?s Restitution Efforts

Mr. May understands that he will never be able to repay all the money he has stolen.
However, Mr. May has divested himself of his assets since the time of his arrest and is in the
process of liquidating same for distribution to his victims totaling approximately $888,000. He and
his wife have forfeited all personal property of value and they are in the process of listing their real
estate for sale. Since his arrest, Mr. May and his wife have been surviving on social security and
pension payments. Notwithstanding same, Mr. May understands it is his responsibility to continue
making efforts towards to restitution and will continue to do so at every possible opportunity. In
addition to the agreed upon restitution amounts and efforts, Mr. May is offering to forward his
entire social security earnings of approximately $3,000.00, and half of his $3,000.00

pension from Equitable Life, to continue making attempts at restitution. Although it

 

2 See UnitedStates v. Gated, 329 F. Supp. 669, 670-71 (S.D.N.Y. 1993), afrd, 31 F.3d 73 (2d Cir. 1994).

Case Document 29 Filed 07/25/19 Page 9 of 12

undoubtedly falls short of the total, Mr. May hopes these extra efforts will alleviate some of the

unimaginable pain he has caused his victims [Exhibit 

Section 3553(a)(2): Need for the Sentence Imposed

A. Section 3553(a)(2)(B): Afford Adequate Deterrence to Criminal Conduct

The public is well informed of the effects of this case and received a strong message
through publicity generated by coverage of this case. The collateral consequences of Mr. May?s
conviction are also well documented. supra Part B. Accordingly, any potential defendants need
only observe the loss of Defendant?s position and income as reasons to avoid criminal activity. As
previous Courts have found, when a defendant?s reputation is ruined by his conviction, it makes it
extremely unlikely that they will ever been in a position to reoffend. US. v. Adelson, 441
F.Supp.2d 506 (SDNY 2006).

B. Section 3553(a)(2)(C): Protect the Public from the Defendant?s Further

Crimes and the Improbability of any Future Criminal Conduct
The likelihood that defendant ?will engage in future criminal conduct [is] a central factor

that district courts must assess when imposing sentence.? Pepper v. US. 131 1229, 1242
(2011); US. v. D.M, (E.D.N.Y May 1, 2013). There is no need to protect the public from Mr. May.
Moreover, any harm that could be imposed on the public is further lessened given that Mr. May?s
likelihood to reoffend is extremely low if not non?existent. Defendant very unlikely to reoffend and
poses no danger to the public.

C. Section Provide the Defendant with Needed Medical Care

The Sentencing Commission now recognizes that ?[p]hysical condition . . . may be

relevant in determining whether a departure is warranted,? and has always recognized that ?in the

case of a seriously in?rm defendant, home detention may be as efficient as, and less costly than,

Case 7:18-cr-00880-VB Document 29 Filed 07/25/19 Page 10 of 12

imprisonment.? USSG 5111.4. As detailed in Supra II. 13., Mr. May?s has a serious of health
conditions that require constant care especially as he gets older. If it is determined that the BOP
may not be best suited to care for him, it should be a factor when considering an appropriate
sentence.
D. Section 3553(a)(4): Kinds of Sentence and the Sentencing Range Established
One of the goals of sentencing is rehabilitation, see, 6.53., United States v. Grayson, 438
U.S. 41, 45-48, 98 2610, 2613-14, 57 L.Ed.2d 582 (1978); Williams v. New York, 337 U.S.
241, 247-48, 69 1079, 1083-84, 93 1337 (1949), and a defendant's admission of
responsibility or expression of contrition ?is often a signi?cant first step towards his rehabilitation
and, for that reason, deserving of a possible reward in the form of a lessened sentence,? Smith v.
Wainwright, 664 F.2d 1194, 1196 (11th Cir.1981). Admission of guilt thus may properly be taken
into account in determining what sentence is needed to achieve rehabilitation. See Brady v. United
States, 397 U.S. 742, 90 1463, 25 L.Ed.2d 747 (1970).
E. Section 3553(a)(7): Need to Provide Restitution to any Victims of the Offense
Mr. May has limited capacity for making full restitution, but can continue making
steps towards restitution for the rest of his life. So far as monetary sanctions are concerned,
therefore, the Court could indeed impose a life sentence. Despite his limitations, it should
be noted that Mr. May, from the onset of his arrest, has fully cooperated with law
enforcement authorities from the United States Government and SEC officials.
Additionally, Mr. May has divested himself of his assets from the time of arrest, and is in
the process of liquidating same for distribution to his victims totaling approximately

$888,000.00 dollars [Exhibit 

Case Document 29 Filed 07/25/19 Page 11 of 12

CONCLUSION

Mr. May stands before the Court a 78-year-old man who is facing a de-facto life sentence. if
the sentence does amount to de facto life it should just be one more consideration that the Court
might be asked to weigh in determining the sentence, properly so if the prospect of dying in prison
is thought to make a sentence of otherwise appropriate length harsher.

What should drive the Court?s decision in this case, more than any other single factor, is the
inordinate emphasis that the Sentencing Guidelines place in fraud cases on the amount of actual or
intended financial loss. As many have noted, the Sentencing Guidelines, because of their arithmetic
approach and also in an effort to appear ?objective," tend to place great weight on putatively
measurable quantities, such as the weight of drugs in narcotics cases or the amount of financial loss
in fraud cases, without, however, explaining why it is appropriate to accord such huge weight to
such factors. See generally Kate Stith Jose A. Cabranes, Fear of Judging: Sentencing Guidelines
in the Federal Courts 69 (1998). Like most fraud cases, Mr. May?s case represents the kind of
"piling-011" of points for which the guidelines have frequently been criticized.

This is one of those cases in which calculations under the Sentencing Guidelines lead to a
result so patently unreasonable as to require the Court to place greater emphasis on other
sentencing factors to derive a sentence that comports with federal law. Notwithstanding all the
mitigating factors outlined above, meaningful prison time might be necessary to achieve retribution
and general deterrence. But as to the latter, there is a considerable evidence that even relatively
short sentences can have a strong deterrent effect on prospective "white collar" offenders. See,
Richard Frase, Punishment Purposes, 58 Stanford L.Rev. 67, 80 (2005); Elizabeth
Szockyj, Imprisoning White Collar Criminals?, 23 S. 111. 485, 492 (1998). Cf United States
Sentencing Commission, Fifteen Years of Guidelines Sentencing 56 (2004) (noting that the

Sentencing Guidelines were written, in part, to "ensure a short but definite period of confinement

Case Document 29 Filed 07/25/19 Page 12 of 12

for a larger proportion of these ?white collar' cases, both to ensure proportionate punishment and to
achieve deterrence?) (emphasis supplied). Even when a court ?nds a defendant?s guidelines
encompass incarceration, many courts recognize that the collateral consequences of a trial and
conviction, especially in a highly publicized case, can serve as a significant deterrent. See 
United States v. Stewart, 590 F.3d 93, 141 (2d Cir. 2009).

Dated: July 25, 2019
Spring Valley, New York

 

WCONWAY ESQ.
Attorit for Defendant Hecto.x May
80 Red Schoolhouse Road, Suite 110
Spring Valley, New York 10977
(845) 352-0206