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United States v. Singh

United States District Court, District of Columbia

June 17, 2016

UNITED STATES OF AMERICA
v.
TARSEM SINGH, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         On December 17, 2015, the defendant in this criminal matter pleaded guilty to Conspiracy to Commit Major Fraud on the United States in violation of 18 U.S.C. §§ 371, 1031 (2012), see Information at 6, as a result of "execut[ing] a scheme to defraud the Small Business Administration [('SBA')] and the General Services Administration ('GSA'), " Statement of Offense at 5. The defendant is now pending sentencing and the parties have submitted memoranda in aid of sentencing, drawing into question the sentencing range applicable to the defendant under the United States Sentencing Guidelines ("the Guidelines"). See Government's Memorandum in Aid of Sentencing ("Gov.'s Mem."); Defendant Tarsem Singh's Memorandum in Aid of Sentencing ("Def.'s Mem."). Specifically, the parties disagree as to the value of the loss sustained by the government resulting from the defendant's conduct, Gov.'s Mem. at 11; Def.'s Mem. at 9, as well as to the propriety of imposing a sentencing enhancement for the defendant's purported aggravated role as an organizer, leader, manager, or supervisor in the conspiracy to which he pleaded guilty, Gov.'s Mem. at 25; Def.'s Mem. at 22. Upon careful consideration of the parties' submissions, the Court concludes that the amount of loss that must be used in calculating the defendant's guidelines is the full amount of the contracts that the defendant fraudulently procured, and that the Guideline enhancement for playing an aggravated role in the conspiracy is not applicable in this case.[1]

         I. BACKGROUND

         The following factual allegations are drawn from the Statement of Offense submitted by the government, which the defendant agreed to, pursuant to Federal Rule of Criminal Procedure 11. Statement of Offense at 1.

         The SBA operates what is referred to as the "8(a) program, "[2] which "is a development program that was created to help small, disadvantaged businesses compete in the American economy and access the federal procurement market." Id. at 1. Under the program, federal agencies award contracts to 8(a)-qualified firms "on either a set-aside basis, where the only competitive bidding is among similarly eligible firms, or on a sole-source basis, without competitive bidding." Id. at 1-2. To qualify for the program, a firm must be a small business and be at least fifty-one percent-owned and controlled by a United States citizen "of good character who meet[s] the SBA's definition of socially and economically disadvantaged." Id. at 1. Firms "must apply and qualify for participation in the 8(a) program through a formal SBA-administered application process" and "submit annual reviews" to demonstrate continued eligibility. Id. at 2. Firms may participate in the 8(a) program for up to nine nears, at which point they are considered by the SBA to have "graduated" and are "no longer eligible" for government contracts issued under the program. Id. Once a firm has graduated from the program, it may still "provide business development assistance to firms who are in the development stage of the 8(a) Business Development Program" through a related mentor-protege program. Id. at 4.

         From at least January 12, 2000, the defendant acted as the Vice President of "Company A"[3] which "specialize[d] in construction and renovating and altering buildings" from at least January 12, 2000 to December 2006. Id. at 4-5. Company A received its 8(a) certification on January 12, 2000, and "was lawfully awarded approximately $23 million in contracts from [the] GSA . . . ." Id. at 5-6. After nine years, Company A graduated from the 8(a) program on January 12, 2009. Id. at 5. On that same day, a second company-"Company B"-submitted an application for 8(a) certification. Id. at 6. "Company A loaned Company B the registration fee and referred Company B to a SBA Consultant to assist with the application." Id. In June 2009, Company B named the defendant as a Vice President of that company and "entered into a Mentor/Protege Agreement" with Company A. Id.

         Between July 2009 and March 2012, the government awarded Company B twenty-six federal contracts under the 8(a) program, totaling $8, 533, 562.86. Id. at 9. During this time, Company B had only one employee who actually performed work on any of the 8(a) contracts. Id. at 7. Instead, the

         [d]efendant engaged in and directed others to engage in the following practices:

• Obtaining magnetic logos bearing the name of Company B[;]
• Directing a Company A employee to place Company B's magnetic logos on a Company A vehicle when the vehicle would be used at construction sites for projects awarded by [the] GSA[;]
• Using and directing other Company A employees to use Company B email accounts when corresponding with the government about contracts awarded to Company B. Emails sent from these Company B accounts transmitted across state lines with the communications terminating in the District [of Columbia] [;]
• Instructing Company A employees to tell GSA representatives that they were representing Company B on certain jobs; and
• Providing to GSA representatives lists of employees for Company B that included individuals who were actually employed by Company A.

Id. at 7-8. Furthermore, the defendant "used a combination of Company A personnel and subcontractors to staff projects awarded to Company B on which Company A was working." Id. at 8. "On the contracts for which it made a profit, Company A's profits were, at least, $90, 397.15, " and the defendant's personal compensation attributable to those contracts was, at least, $28, 768.28. Id. at 10.

         II. ANALYSIS

         In assessing what sentence a defendant should receive, "[a] district court begins by calculating the appropriate Guidelines range, which it treats as 'the starting point and the initial benchmark' for [the] sentence]." United States v. Akhigbe, 642 F.3d 1078, 1084 (D.C. Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 49 (2007)). When making the Guidelines calculation, the "commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it... is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993). "Then, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, " the court considers all of the sentencing factors listed in 18 U.S.C. § 3553(a) and undertakes "an individualized assessment based on the facts presented." Akhigbe, 642 F.3d at 1084 (citing Gall, 552 U.S. at 49-50).

         A. Total ...


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