Opinion
02 Cr. 1293-01 (RWS).
June 11, 2003.
SENTENCING OPINION
On January 14, 2003, Amadou Mbage, a/k/a Eric Austin Amadi ("Mbage"), pled guilty to one count of false claim to the Internal Revenue Service ("IRS") in violation of 18 U.S.C. § 287.
Offense Conduct
The investigation into the instant offense was conducted by the New York City Police Department and the IRS.
Padilla and Sons Travel and Multi-Service ("Padilla"), a store located in the Bronx, New York, operates a program whereby individuals who have electronically filed their income tax returns with the IRS and are awaiting refunds, may obtain a loan in the amount of their anticipated refund. Such a loan is called a Refund Anticipation Loan ("RAL"). Bank approval is needed for a RAL and is available as soon as Padilla receives an electronic confirmation from the IRS that the return has been electronically filed and the bank offering the RAL has approved the loan application.
On May 6, 2002, Mbage came to Padilla and submitted a tax document in the name of Eric Austin Amadi. Mbage signed and dated the IRS E-file Signature Authorization for an IRS E-File Return and a RAL. Along with the RAL request, Mbage submitted to an employee of Padilla a 2001 W-2 form. In addition, Mbage submitted a driver's license and social security card purportedly verifying his identity. Based upon the signing and submission of the above-mentioned documents, Mbage caused a Padilla employee to prepare a U.S. Individual Income Tax Return Declaration for an IRS E-File Return. The return was transmitted to the IRS. The return claimed a total of $4,544. Mbage picked up this RAL check and it was subsequently negotiated.
The W-2 form listed Mbage's employer as Adecco North America, LLC, located at 10-A Oak Branch Drive, Greensboro, North Carolina. The W-2 states that his social security number is 621-19-2263.
On May 20, 2002, an NYPD detective spoke with an employee of Adecco, who stated that he performed an employee verification check on the name Eric Austin Amadi, as well as the aforementioned social security number, and found no record in 2001 that Eric Austin Amadi or any individual with that social security number was employed by Adecco. The employee also reviewed the copy of the W-2 form submitted by Mbage and compared it to the W-2s issued by Adecco. The Adecco employee noted several discrepancies, including the typeface and the size of the document and noted that the copy of the W-2 form that he reviewed was different from the forms normally issued by Adecco.
On May 20, 2002, Mbage returned to Padilla to pick up two more RAL check that had been previously applied for by Mbage. One check was for $4,623 and the other was in the amount of $4,585. The RAL checks were issued to two different people. The detective was at Padilla when Mbage arrived. Mbage was placed under arrest. As a result, the two checks were never issued to Mbage.
The detective interviewed Mbage. After being read a Miranda warning, Mbage waived his rights and agreed to speak to the detective. Mbage stated that he had presented the identification and social security card, along with the W-2 form in the name of Eric Austin Amadi, to Padilla in order to file an application for a refund. He admitted that he was not Eric and initially stated that Eric was his brother. Mbage later indicated that Eric was a friend of his who resided in North Carolina. He also stated that he had previously picked up the RAL check and given it to Eric.
Mbage attempted to defraud the IRS of approximately $13,752. Only $4,544 of that amount has been lost as a result of Mbage's criminal conduct.
Adjustment for Obstruction of Justice
There is no information to suggest that Mbage impeded or obstructed justice at the time of his arrest, or during the investigation or prosecution of the offense.
Adjustment for Acceptance of Responsibility
In his allocution, Mbage admitted to using a false name and false social security number to fraudulently obtain a tax refund.
The Guidelines Offense Level
The 2002 edition of the Guidelines Manual has been used in this case in accordance with § 1B1.11(b)(i).
The guideline for a violation of 18 U.S.C. § 287 is found in § 231.1, which provides for a base offense level of 6.
Because Mbage attempted to cause a loss of $13,752, to the IRS, a four-level increase to 10 is applicable pursuant to § 2B1.1(b)(1)(C).
Due to Mbage's timely notification of his intention to plead guilty and his acceptance of responsibility, he qualifies for a 2-level reduction pursuant to § 3E1.1(a). The offense is reduced two levels to 8.
Total Offense Level
Mbage's total offense level is 8 under the Guidelines.
Criminal History Category
Mbage was represented by counsel in all matters resulting in conviction unless otherwise noted.
On February 14, 1996, Mbage was arrested and charged with disorderly conduct. He received a conditional discharge and paid a $50 fine. Pursuant to § 4A1.2(c)(1), that qualifies for 0 criminal history points.
The total of the criminal history points is zero. Zero criminal history points establishes a Criminal History Category of I.
There is a record of two other arrests. On May 31, 1998, Mbage was charged by the Cincinnati Police Department with falsification.
On May 20, 2002, Mbage was charged with criminal impersonation in the first degree after he produced fraudulent documents to obtain a federal income tax refund. This arrest resulted in the instant federal conviction.
Applicable Guidelines Range
The statutes under which Mbage pled guilty provide for a maximum sentence of five years' imprisonment on Count One, pursuant to 18 U.S.C. § 287. The Guidelines range for an offender with a base level of 8 and a Criminal History Category of I is 0 to 6 months.
The Sentence
In light of the foregoing, Mbage shall be sentenced to time served, to be followed by three years' supervised release on Count I. He will also pay a mandatory special assessment of $100 and a fine of $1,000.
Mbage shall make restitution payable to the Clerk, U.S. District Court, for disbursement to the IRS in the amount of $4,554. The restitution shall be paid in monthly installments of 15% of gross monthly income over a period of supervision to commence 30 days after the date of the judgment. Mbage shall notify the United States Attorney for this district within 30 days of any change of mailing or residence address that occurs while any portion of the restitution remains unpaid.
The following conditions of supervised release are mandatory: Mbage shall not (1) commit another federal, state or local crime; (2) illegally possess a controlled substance; and (3) possess a firearm or destructive device. The mandatory drug testing condition is suspended based on the Court's determination that Mbage poses a low risk of future substance abuse.
Mbage will be subjected to the standard conditions of supervision (1-13). In addition, he shall comply with the directives of the Immigration and Naturalization Service and Immigration laws. He is to report to the nearest probation office within 72 hours of release from custody and is to be supervised by the district of residence.
This sentence is subject to further hearing on June 16, 2003.
It is so ordered.