Opinion
05 Crim. 782-2 (GBD)
07-30-2024
UNITED STATES OF AMERICA v. DELMER GOWING, Defendant.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
Defendant Delmer Gowing, proceeding pro se, moves for a sentence reduction pursuant to Amendment 821 of the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2). (Def's Mot. for Retroactive Appl. of Amendment 821 (“Def's Mot.”), ECF No. 152.) Amendment 821 went into effect on November 1, 2023, and applies retroactively. See U.S.S.G. § 1B1.10. As relevant here. Amendment 821 provides an “Adjustment for Certain Zero-Point Offenders” that reduces a defendant's total offense level by two points if the defendant has no criminal history points, as calculated under § 4A of the Sentencing Guidelines, and if the offense of conviction meets certain criteria, including that “the defendant did not personally cause substantial financial hardship” through the offense. Id. § 4C1.1. Gowing asserts that he qualifies for the adjustment and requests a sentence reduction in accordance with the reduced guideline range. (Def.'s Mot. at 1.) Although Gowing received zero criminal history points (Presentence Investigation Report (“PSR”) ¶ 94), he does not qualify for the adjustment because he personally caused substantial financial hardship. Gowing is therefore ineligible for a sentence reduction pursuant to Amendment 821. Asa result, Gowing's Motion is DENIED.
“Pursuant to 18 U.S.C. § 3582(c)(2), ... a federal court may reduce a defendant's sentence if the defendant was originally sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission when that modification is made retroactive.” United States v. Elendu, No. 20-CR-179-14 (DLC), 2024 WL 458643, at *2 (S.D.N.Y. Feb. 6, 2024) (citing United States v. Martin, 974 F.3d 124, 136, 139 (2d Cir. 2020)).
I. FACTUAL AND PROCEDURAL BACKGROUND
In a “long-running and multifaceted advance fee scheme,'' Gowing and Co-Defendant Emil Scheringer told victims that large sums of money were delayed under various natural-resource contracts overseas. (Government's Mem. in Opp'n (“Mem.”), ECF No. 158, at 2.) Gowing and Scheringer asked victims to contribute funds to pay certain fees, promising that they would receive substantial returns on their investments once the delayed money was released. (Id.) Gowing was an attorney licensed to practice law in the State of Florida and admittedly used his status as an attorney to persuade victims to give money to the scheme. (Id. (citation omitted).) In one instance, Gowing convinced a former client to contribute $50,000 to the scheme and corresponded with her over the course of several years to assure her she would be paid back. (Mem. at 2; PSR ¶¶ 2736.) According to her victim impact statement, she never recouped the funds and lost $50,000 in savings as a result. (PSR ¶¶ 47, 76.) Another victim was forced to declare bankruptcy. (Id. ¶ 76.) In total, Gowing and Scheringer were responsible for defrauding at least 200 people out of at least $15,634,368. (Id. ¶¶ 74-76.) Hundreds of thousands of dollars of that money flowed through Gowing's personal bank accounts. (Mem. at 2; PSR¶ 13.)
Following a jury trial. Gowing was convicted of one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. (See Am. J., ECF No. 118, at 1.) The jury also returned a special verdict concluding that Gowing continued the offense following his arrest and release on bail, resulting in an additional penalty pursuant to 18 U.S.C. § 3147(1). (Mem. at 1-2; Am. J. at 1-2.) On October 6, 2010, this Court sentenced Gowing to a term of 240 months' imprisonment on Count One and a consecutive term of 24 months' imprisonment for continuing the offense while released on bail, followed by three years of supervised release. (Am. J. at 2-3.) Gowing was also required to forfeit $9,000,000 and pay a $100 mandatory special assessment. (Id. at 5-6.)
II. LEGAL STANDARD
A defendant with zero criminal history points will be eligible for the “Adjustment for Certain Zero-Point Offenders” under Amendment 821 if he meets ten enumerated criteria. U.S.S.G. § 4C1.1. One of these criteria requires that “the defendant did not personally cause substantial financial hardship.” Id. § 4C 1.1 (a)(6). To determine “whether [a] defendant's acts or omissions resulted in ‘substantial financial hardship,”' a court “shall consider, among other things, the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to §2B1.1.” U.S.S.G. § 4C 1.1 (b)(3). These factors include whether the offense resulted in the victim:
i. becoming insolvent;
ii. filing for bankruptcy under the Bankruptcy Code (title 11, United States Code);
iii. suffering substantial loss of a retirement, education, or other savings or investment fund;
iv. making substantial changes to his or her employment, such as postponing his or her retirement plans;
v. making substantial changes to his or her living arrangements, such as relocating to a less expensive home; and vi. suffering substantial harm to his or her ability to obtain credit.U.S.S.G § 2B1.1 n.4F.
Substantial financial hardship might also be present where the number of victims is high, the amount lost is high, or the victims are particularly vulnerable. See United States v. Pagartanis, No. 18-CR-00374, 2024 WL 2111544, at *2 (E.D.N.Y. May 10, 2024) (finding that “U.S.S.G. § 4C 1.1 (a)(6) is present because [the defendant] personally stole over $13 million from more than a dozen victims . . . through the sale of fraudulent investments and Ponzi scheme-like activity”); United States v. Ortiz, No. 19-CR-161,2023 WL 1929690, at *5 (E.D.N.Y. Feb. 10, 2023) (finding that the defendant caused significant financial hardship due to his misappropriation of $224,500); United States v. Bronfman, No. 18-CR-204, 2024 WL 1740484, at *1 (E.D.N.Y. Apr. 23, 2024) (finding that taking advantage of immigration status or financial difficulties might qualify as causing substantial financial hardship).
III. GOWING IS INELIGIBLE FOR THE ADJUSTMENT
Gowing used his status as an attorney and his personal and client relationships to convince victims to participate in the scheme, ultimately causing them substantial financial hardship. (See supra Section I; Mem. at 2; PSR ¶¶ 12-15, 27-36.) After first convincing victims to invest significant sums of money into the scheme, Gowing kept in personal contact with them and continually assured them over the span of several years that they would soon receive returns on their investments. (See supra Section I; Mem. at 2; PSR ¶¶ 12, 15, 27-36.) Gowing also used his own bank account to facilitate the transfers of funds. See supra Section I. The loss suffered as a result of these actions was substantial, including a victim losing $50,000 in savings and another victim declaring bankruptcy. See supra Section I; see also U.S.S.G § 2B1.1 n.4F(ii), (iii). The total loss amount was also high, reaching at least $ 15,634,368. See supra Section I; see also Ortiz, 2023 WL 1929690, at *5. Asa result, this Court finds that Gowing personally caused substantial financial hardship to the victims of his crime. He therefore does not meet the requirements for an offense level reduction under Amendment 821 and is not eligible for a sentence reduction.
IV. CONCLUSION
Defendant Delmer Gowing is ineligible for a sentence reduction under § 4C 1.1(a)(6) because he personally caused substantial financial hardship. As a result. Defendant's Motion for Retroactive Application of Amendment 821 is DENIED. The Clerk of Court is directed to close the open motion at ECF No. 152.
SO ORDERED.