United States District Court, Western District of Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States;
Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant Crystal Lynn Deskins; and Brian M. Ely, Abingdon, Virginia, for Defendant Jody Deskins.
OPINION AND ORDER
James P. Jones United States District Judge
In this Opinion, I resolve sentencing objections by the defendants relating to their advisory sentencing guideline range and the amount of forfeiture sought by the government.
The defendants, Crystal Lynn Deskins and her spouse, Jody Deskins, pleaded guilty without plea agreements to Count One of an Indictment charging them with participating in a conspiracy to structure financial transactions for the purpose of evading the reporting requirements, in violation of 18 U.S.C.A. § 371 (West 2000), and to Counts Two through Eight of the Indictment, charging them with substantive structuring offenses, in violation of 31 U.S.C.A. § 5324(a)(3) (West 2003). In connection with their sentencings, the defendants have objected to the calculation of their offense levels based upon an alleged pattern of unlawful activity involving more than $100,000 in a 12-month period. See U.S. Sentencing Guidelines Manual (“USSG”) § 2S1.3(b) (2013). In addition, they have objected to the amount of a forfeiture money judgment sought by the government. A hearing has been held on these objections and they are ripe for decision.
The facts of the case are generally undisputed. In 2010 the Deskins, unemployed welfare recipients, received a monetary settlement in the net amount of $596,319.48 from a lawsuit over the death of their infant son. The money was deposited into their bank account and within about eight months they had spent it all on themselves and their two other children, including buying seven vehicles, multiple televisions sets and computers, a family vacation, clothes, toys, and games. They also bought a home for approximately $189,000.
The Deskins did not tell the welfare agencies about the settlement and continued to receive benefits. Mr. Deskins told the federal agent investigating the case that they had been advised by their lawyer that they should not report the money to anyone. They were also told, he said, that they should not go over $10,000 in cash withdrawals from their account because “it was less of a hassle and they would have to answer to the law enforcement authorities if the withdrawals were over $10,000.00” (Joint Sentencing Mem. Ex. 1, at 4.) True to this advice, they engaged in numerous cash withdrawals of less than $10,000 from December of 2010 until July of 2011. A number of these withdrawals - but not nearly all - were charged in the Indictment. The Indictment charged only those withdrawals where there were multiple withdrawals on one day or on successive business days, which together exceeded $10,000. For example, Count Three of the Indictment charged that the defendants withdrew $9,500 from their checking account on Tuesday, January 25, 2011, and the same amount again on the next day, January 26, 2011. Count Eight charged that the defendants withdrew $2,000 on Friday, July 1, 2011, $5,000 on the next business day, Tuesday, July 5, 2011, and $5,000 on Wednesday, July 6, 2011.
Based upon his review of the government’s discovery material, the probation officer who prepared the defendants’ PSRs determined that while Counts Four and Seven of the Indictment charged that the described withdrawals had been made on the same day, in fact they had been made several days apart. Based upon this information, the defendants argue that the structured withdrawals charged in Counts Four and Seven should be disregarded, thus reducing the structured amounts charged in the Indictment to less than $100,000. Accordingly, they contend, they are entitled to a reduction in their offense levels pursuant to USSG § 2S1.3(b)(3). If their argument is adopted, each defendants’ Total Offense Level drops from 13 to 4.
The government also seeks forfeiture in the form of a money judgment for $103,305, the total amount of the structured transactions charged in the Indictment. The government hopes to use this judgment to levy on the Deskins’ new home, the only asset they have remaining. The defendants contend that such an amount is constitutionally excessive and argue for a forfeiture of no more than $15,000. For the reasons that follow, I will deny the defendants’ objections.
A withdrawal can constitute a structuring offense even when it is not one of multiple withdrawals exceeding $10,000 on one day. Even though the transactions in Counts Four and Seven of the Indictment were made days apart, they are still structured transactions. Structuring occurs when one or more persons conducts or attempts to conduct one or more transactions for the purpose of evading reporting requirements. 31 C.F.R. § 1010.100(xx) (2013). “The transaction or transactions need not exceed the $10,000 reporting threshold at any single financial institution on any single day in order to constitute structuring within the meaning of this definition.” Id.
It does not make a difference for sentencing purposes whether a defendant engaged in perfect structuring, where transactions do not exceed $10,000 on one day, or imperfect structuring, where combinations of transactions exceed $10,000 on one day. Distinguishing between the two would lead to divergent sentences based on daily activity rather than an overall pattern of unlawful activity, and would result in different sentences for the same amount of structured funds. United States v. Peterson, 607 F.3d 975, 981 (4th Cir. 2010) (holding that the Sentencing Guidelines should not be read to distinguish between perfect structuring offenses and imperfect structuring offenses). “[E]ach separate ...