Opinion
Criminal Action No. 12-cr-00049-DME
10-18-2012
UNITED STATES OF AMERICA, Plaintiff, v. 2. KIMBERLY M. MCCAFFERY, Defendant.
Counsel: Tim Neff Matthew Golla
JUDGE DAVID M. EBEL
Courtroom Deputy: Emily Seamon
Court Reporter: Janet Coppock
Probation Officer: Gary Kruck
Counsel:
Tim Neff
Matthew Golla
SENTENCING MINUTES
10:16 a.m. Court in session.
Court calls case. Appearances of counsel. Defendant present in custody.
Sentencing Hearing is continued from October 5, 2012.
Court requests that Mr. Kruck file a third addendum to the presentence report to correct an error regarding the two offense level enhancements. Parties received and reviewed the second addendum to the presentence report and the further revision made by Mr. Kruck. 10:22 a.m. Argument by Mr. Neff regarding the two offense level enhancements. 10:33 a.m. Argument by Mr. Golla. 10:43 a.m. Rebuttal argument by Mr. Neff. ORDERED: The Government has proven that the offense level should be increased by 2 to at least 12 if the Defendant relocated or participated in relocating a fraudulent scheme to another jurisdiction. The Government has not proven and therefore is not entitled to an enhancement that the Defendant's offense level should be increased by 2 to at least 14 if the offense bank fraud involved possession of a dangerous weapon including a firearm in connection with the offense of bank fraud. Defendant sworn. The Government, defense counsel, and defendant were given an opportunity to make statements before sentencing. Comments and rulings by the Court. ORDERED: Defendant's Sentencing Memorandum and Request for Downward Variance [Doc. No. 59, Filed September 19, 2012] is DENIED.
THE DEFENDANT IS SENTENCED AS FOLLOWS:
IMPRISONMENT:
Defendant is sentenced as to Count 1 of the Indictment to a term of imprisonment of 9 months.
Defendant is sentenced as to Count 20 of the Indictment to a term of imprisonment of 2 years, such term to be served consecutive to the sentence imposed on Count 1 of the Indictment.
SUPERVISED RELEASE:
Upon release from imprisonment, defendant shall be placed on supervised release for a period of 3 years on Count 1 and 1 year on Count 20, to run concurrently.
Conditions of supervised release:
(X) Within 72 hours of release from the custody of the Bureau of Prisons, defendant shall report in person to the probation office in the district to which the defendant is released.
(X) Defendant shall not commit another federal, state or local crime.
(X) Defendant shall not possess a firearm or destructive device.
(X) Defendant shall comply with the standard conditions adopted by the Court.
(X) Defendant shall not unlawfully possess controlled substances.
(X) Defendant shall refrain from the unlawful use of a controlled substance and submit to one drug test within 15 days of release on supervised release and at least two periodic drug tests thereafter for use of a
controlled substance.
(X) Defendant shall cooperate in the collection of DNA as directed by the probation officer.
Special conditions of supervised release:
(X) Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, unless the defendant is in compliance with the periodic payment obligations imposed pursuant to the Court's judgment and sentence.SPECIAL ASSESSMENT FEE:
(X) As directed by the probation officer, Defendant shall apply any monies received from income tax refunds, lottery winnings, inheritances, judgments, and any anticipated or unexpected financial gains to the outstanding court ordered financial obligation in this case.
(X) Defendant shall participate in and successfully complete a program of testing and/or treatment for substance abuse, as approved by the probation officer, until such time as the defendant is released from the program by the probation officer. Defendant shall abstain from the use of alcohol or other intoxicants during the course of treatment and shall pay the cost of treatment as directed by the probation officer.
(X) Defendant shall participate in and successfully complete a program of mental health treatment, as approved by the probation officer, until such time as the defendant is released from the program by the probation officer. Defendant shall pay the cost of treatment as directed by the probation officer. The Court authorizes the probation officer to release to the treatment agency all psychological reports and/or the presentence report for continuity of treatment.
Defendant shall pay a Special Assessment Fee of $100.00 as to each count for a total of $200.00, which is due and payable immediately.
FINE:
No fine is imposed because the defendant has no ability to pay a fine.
RESTITUTION:
Defendant shall pay restitution as follows:
+-------------------------------------------+ ¦Discover Financial Services, LLC¦ ¦ ¦ ¦ ¦ ¦P.O. Box 30943 ¦$ 2,169.00¦ ¦ ¦ ¦ ¦Salt Lake City, UT 84180 ¦ ¦ +--------------------------------+----------¦ ¦Wells Fargo Bank, N.A. ¦ ¦ ¦ ¦ ¦ ¦Attn: Lisa Tennyson ¦$ 1,069.00¦ ¦ ¦ ¦ ¦5050 S. Federal Blvd. ¦ ¦ +-------------------------------------------+
+-------------------------------+ ¦Englewood, CO 80110 ¦ ¦ +--------------------+----------¦ ¦TOTAL ¦$ 3,238.00¦ +-------------------------------+ Restitution is ordered jointly and severally with co-defendant Jerod M. Reeves. Interest is waived. The special assessment and restitution obligations are due immediately. Any unpaid restitution balance upon the defendant's release from prison shall be paid in monthly installment payments during the course of supervised release. The monthly installment payment will be calculated as at least 10 percent of the defendant's gross monthly wages. Defendant is advised of the right to appeal. ORDERED: A complete copy of the Presentence Report shall be prepared for the Bureau of Prisons and the United States Sentencing Commission. Counsel confirm that they have copies of the Presentence Report and the subsequent addendums to the report. ORDERED: Any other copies of the Presentence Report and addendums shall remain confidential according to the practice of the court. If an appeal is taken, counsel on appeal will be permitted access to the report. Court recommends that the Bureau of Prisons place Defendant at a facility in Las Vegas. ORDERED: Defendant is remanded to the custody of the United States Marshal for the District of Colorado. 11:20 a.m. Court in recess.
Hearing concluded.
Total in-court time: 1:04