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United States v. Uzoechi

United States District Court, D. Nebraska

March 16, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
FELIX C. UZOECHI, Defendant.

TENTATIVE FINDINGS

JOHN M. GERRARD, District Judge.

The Court has received the revised presentence investigation report (PSR) in this case. Defendant Felix C. Uzoechi has filed an objection and moved for a downward departure or variance. Filing 31.

IT IS ORDERED:

1. The Court will consult and follow the Federal Sentencing Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220 (2005), and subsequent cases. In this regard, the Court gives notice that, unless otherwise ordered, it will:

(a) give the advisory Guidelines respectful consideration within the context of each individual case and will filter the Guidelines' advice through the 18 U.S.C. § 3553(a) factors, but will not afford the Guidelines any particular or "substantial" weight;
(b) resolve all factual disputes relevant to sentencing by the greater weight of the evidence and without the aid of a jury;
(c) impose upon the United States the burden of proof on all Guidelines enhancements;
(d) impose upon the defendant the burden of proof on all Guidelines mitigators;
(e) depart from the advisory Guidelines, if appropriate, using pre- Booker departure theory; and
(f) in cases where a departure using pre- Booker departure theory is not warranted, deviate or vary from the Guidelines when there is a principled reason justifying a sentence different than that called for by application of the advisory Guidelines, again without affording the Guidelines any particular or "substantial" weight.

2. Uzoechi has objected to the loss and restitution calculations set forth in the PSR, and requested a downward departure or variance. Filing 31. The Court's tentative finding is that while the loss calculation contained in the PSR and sought by the government is correct, restitution in this case is much more limited. The Court further tentatively finds that Uzoechi's motion for departure is without merit. His motion for a variance will be resolved at sentencing.

A. The Loss Calculation

Uzoechi has pleaded guilty to one count of food stamp fraud, in violation of 7 U.S.C. § 2024(b). Uzoechi ran a small grocery store in Omaha, Nebraska, and participated in the Supplemental Nutrition Assistance Program (SNAP) administered by the United States Department of Agriculture (USDA). Under this program, authorized stores may accept food stamp benefits (in the form of a debit card) instead of cash. See United States v. Ali, 619 F.3d 713, 716 (7th Cir. 2010). The store's owner can then redeem those benefits with the government at their face value. Id. The SNAP program only allows the use of benefits to purchase certain food items; benefits may not be exchanged for non-food items or cash. PSR at ¶ 12.
The government contends that Uzoechi has, for several years, been operating a scheme whereby he has been exchanging SNAP benefits for cash. Uzoechi would pocket some amount of the cash for himself and turn the remainder over to the customer.[1] Uzoechi would then redeem the entire amount of benefits from the USDA for their face value. PSR at ¶¶ 14-18; filing 31 at 3; filings 33 and 34. In April 2014, an undercover USDA agent went to Uzoechi's grocery and used a SNAP benefit card to purchase a few non-food items and to obtain $300 in cash. The same agent returned again in June and July 2014 and used a SNAP card to obtain another $350 in cash. PSR at ¶ 13. In September 2014, Uzoechi was indicted on three counts ...

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