United States District Court, District of Columbia
B. WALTON United States District Judge
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
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.
operates what is referred to as the "8(a) program,
" 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.
least January 12, 2000, the defendant acted as the Vice
President of "Company A" 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.
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
engaged in and directed others to engage in the following
• Obtaining magnetic logos bearing the name of Company
• 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
• 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.
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).