Petition for Writ of Certiorari — Lamont Kortez Gaines, Petitioner v. United States

APPENDIX

1a

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_____________

No. 19-4782

_____________

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LAMONT KORTEZ GAINES,

Defendant – Appellant.

_____________

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. T. S. Ellis,

III, Senior District Judge. (1:17-cr-00106-TSE-4)

_____________

Submitted: March 27, 2020

Decided: June 5, 2020

_____________

Before WILKINSON, MOTZ, and DIAZ, Circuit

Judges.

_____________

Affirmed by unpublished per curiam opinion.

_____________

2a

Daniel Suleiman, Brendan Duffy, COVINGTON &

BURLING LLP, Washington, D.C., for Appellant. G.

Zachary Terwilliger, United States Attorney, Rebeca

H. Bellows, Assistant United States Attorney,

Alexander E. Blanchard, Assistant United States

Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee.

_____________

Unpublished opinions are not binding precedent in

this circuit.

_____________

PER CURIAM:

Lamont Gaines appeals his conviction for carjacking, in violation of 18 U.S.C. § 2119, after a jury trial

convicting him on twelve counts. Gaines contends that

the evidence was insufficient to support his conviction

for carjacking and that the district court thus erred in

denying his motions for a judgment of acquittal on

that charge. For the reasons that follow, we affirm.

I.

A.

On March 18, 2017, Muhammad Kurshid’s white

Nissan Altima was stolen from the parking lot of an

apartment complex in Alexandria, Virginia. Kurshid

was walking from an apartment to his car when he

noticed a man attempting to open one of the car’s

doors. When Kurshid moved to get a closer look, a second man approached him, pointed a gun, and told him

to put his hands up. The first man then approached

and took Kurshid’s wallet, cell phone, and car keys

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from his pocket. The two men got in Kurshid’s car and

drove away.

Kurshid called 911 two or three minutes after the

robbers fled. During the call, Kurshid described one of

the men as being approximately six feet tall, 150

pounds, clean shaven, and wearing a black hoodie, tan

jeans, and black shoes.

Security camera footage recorded twenty minutes

after the carjacking showed Gaines and another man,

Desmar Gayles, exiting the stolen car and entering a

food market in southeast Washington, D.C. The footage showed that Gaines had been driving the car, had

facial hair, and was wearing a black hoodie, black

jeans, and pink shoes.

B.

A month later, Gaines, Gayles, Anton Harris, and

Andrew Duncan were arrested in relation to a string

of armed robberies and related carjackings in the

Washington, D.C. metropolitan area. Collectively, the

group was charged with forty-one counts. Gaines was

charged with eighteen counts, including one count of

carjacking stemming from the theft of Kurshid’s car.1

His codefendants each pleaded guilty to two counts of

using, carrying, and brandishing a firearm during and

1 A person commits the crime of carjacking if he, “with the intent

to cause death or serious bodily harm[,] takes a motor vehicle

that has been transported, shipped, or received in interstate or

foreign commerce from the person or presence of another by force

and violence or by intimidation, or attempts to do so.” 18 U.S.C.

§ 2119.

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in relation to a crime of violence, while Gaines elected

to go to trial.

At trial, Kurshid testified regarding the carjacking. Kurshid explained that the taller man he had

described to the 911 operator (who the government alleged was Gaines) was the one who took his keys,

phone, and wallet. According to Kurshid, the taller

man had “[j]ust [a] little bit” of facial hair, but “no []

heavy beard” and affirmed that he was wearing a

black hoodie, tan jeans, and black shoes. J.A. 491.

Further, when asked about the inconsistencies in his

testimony and the 911 report regarding the man’s facial hair, Kurshid explained that he was scared and

his attention was focused on the gun, not the carjackers’ features.

Additionally, the government introduced the following text message conversation between Gaines and

Harris from approximately thirty minutes before the

carjacking:

Harris: “Make sure you keep your head low

broski.”

Gaines: “I[‘]m hip.”

J.A. 2097. The government offered the message exchange as evidence of a plan for the carjacking.

FBI Special Agent James Berni testified as an expert regarding his analysis of historical call detail2

from the cell phones belonging to Gaines and his coconspirators. The relevant cell phone data placed

Duncan, Gayles, and Harris at or near the apartment

building when Kurshid’s car was stolen. The FBI was

unable to retrieve call data for Gaines’s phone. Berni

explained that this lack of data could mean that

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Gaines had shut off his phone or was not using it at

the time.

Additional call detail showed Gayles’s phone traveling towards Washington, D.C. during the first few

minutes after the carjacking, while Harris’s phone remained connected to the cell tower at the apartment

complex where the carjacking occurred. Agent Berni

thus concluded that Gayles and Harris were in separate cars. According to the government, this evidence

showed that the conspirators had split into teams of

two, with Gaines and Gayles in the stolen vehicle.2

The government urged the jury to place little

weight on Kurshid’s description of the carjacker to the

911 operator—which was inconsistent in some respects with how Gaines looked in the surveillance

video—because Kurshid was scared during the carjacking and wasn’t focused on the robber’s features

and clothing. Instead, the government asserted, the

jury should focus on the surveillance video showing

Gaines driving the stolen vehicle about twenty

minutes after the crime occurred.

At the close of the government’s evidence, Gaines

moved for a judgment of acquittal on all counts pursuant to Rule 29 of the Federal Rules of Criminal

Procedure. The district court denied the motion but

suggested that if Gaines were to raise his motion

again should he receive an unfavorable verdict, the

2 Call detail analysis combines call data records, which record

data from when a cell phone engages in activities that utilize a

data plan, with the location of cell towers. The analysis provides

an approximate location of a cell phone at a specific time when it

used the network.

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court would reconsider the evidence as to the carjacking count at that time.

Gaines elected to testify at trial. He claimed that

he was in the stolen car because Gayles drove past

him and picked him up as he was walking to a “female’s house.” J.A. 1641. According to Gaines, he was

driving the stolen vehicle because Gayles didn’t know

how to get to the house. At some point, the pair decided to stop at a food market, and when they returned

to the car, it would not start. They then abandoned

the car at the market, where the police eventually recovered it. Gaines claimed that he didn’t know the car

was stolen and that he believed Gayles was “rent[ing]”

the car from one of his drug customers in exchange for

drugs. J.A. 1643. Additionally, Gaines explained that

his text message exchange with Harris referred to

Gaines dealing marijuana, not the carjacking.

At the close of evidence, Gaines renewed his Rule

29 motion, which the district court again denied. The

court again advised Gaines to renew his motion if he

received an unfavorable verdict and stated that, at

that time, it would reconsider its ruling as to the carjacking count.

The jury returned a guilty verdict on twelve of the

eighteen counts, including the carjacking count.

Gaines didn’t renew his Rule 29 motion following the

verdict.3

3 Nonetheless, Gaines’s earlier Rule 29 motions preserved his

sufficiency-of-evidence argument. See United States v. Butler,

211 F.3d 826, 829 (4th Cir. 2000).

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This appeal followed.

II.

Gaines argues that the district court erred by

denying his Rule 29 motions for a judgment of acquittal. We do not agree.

We review de novo a district court’s denial of a Rule

29 motion. United States v. Alerre, 430 F.3d 681, 693

(4th Cir. 2005).

Under Rule 29, “the court on the defendant’s motion must enter a judgment of acquittal of any offense

for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). We must view the

evidence in the light most favorable to the government, and we must affirm a guilty verdict if it is

supported by “substantial evidence.” Alerre, 430 F.3d

at 693 (cleaned up). “Substantial evidence” means “evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.” Id.

(cleaned up). We must assume that the jury resolved

any inconsistencies in the testimony in the government’s favor. Id.

Gaines lodges two complaints regarding the government’s evidence. First, Gaines contends that the

inconsistencies in the victim’s description of the carjackers prove that someone other than Gaines stole

the vehicle. Second, he posits that the messages exchanged between Gaines and Harris have plausible

explanations aside from the carjacking.

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Gaines compares the evidence in his case to that in

United States v. Bonner, where we affirmed the district court’s conclusion that there was insufficient

evidence to support a guilty verdict. There, we found

that the government failed to produce sufficient identity evidence placing Bonner at the scene of a robbery

and relied on unsubstantiated, unscientific evidence

to bolster minimal evidence. We explained:

[T]here is a conspicuous absence of any contemporaneous “identity” evidence linking the

defendant to the robbery. The government’s entire case consists of four pieces of

circumstantial evidence: (1) a hat with multiple

DNA matches worn by Bonner was also worn

by one of the robbers; (2) Bonner’s wallet, discovered in the alleged getaway car; (3) phone

records showing calls from Bonner’s cell phone

to [his girlfriend] and [his cousin] the night after the robbery; and (4) a separate phone record

showing a call from a nearby gas station to

[Bonner’s girlfriend]. While it is possible to convict a defendant solely on circumstantial

evidence, in cases where the identity of the perpetrator is in dispute, usually there is some

specific “identity” evidence or uncontroverted

physical evidence that links the defendant to

the scene of the crime.

648 F.3d 209, 214 (4th Cir. 2011). We also noted the

complete “lack [of] any physical description of the robbers from the victims.” Id. Indeed, the only identifying

information offered by the victims was that the robbers were African American. Id. at 211. Additionally,

the government relied on unsupported inferences to

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conclude that Bonner’s DNA was on the hat because

he had worn it during the robbery. Id. at 215.

Bonner is not this case. For starters, the identity

evidence here is stronger than in Bonner because it

includes a physical description of the robbers by the

victim and video of Gaines driving the stolen vehicle.

And while Kurshid’s description of the carjackers in

the 911 call was partially inconsistent with the video,

the jury could have resolved any discrepancies by accepting Kurshid’s explanation for them.

Further, in Bonner we cited United States v. Warren, 593 F.3d 540, 547 (7th Cir. 2010), where the

defendant was found in possession of stolen money, as

an example of a case with sufficient identity evidence

linking the defendant to the scene of the crime. Here

(and unlike in Bonner), the video of Gaines driving the

vehicle twenty minutes after it was stolen directly

links Gaines to the crime.

This case is closer to United States v. Corbett,

where we found that a victim’s physical description of

the robbers (including their approximate height,

weight, and clothing), combined with the fact that the

getaway vehicle’s license plate was registered to the

defendant’s car, was sufficient to uphold a guilty verdict. See 374 F. App’x 372, 377 (4th Cir. 2010). Here,

Kurshid’s description in the 911 call of one of his assailants was mostly consistent with that shown in the

surveillance video, even if not an exact match. And

when considered in conjunction with the video of

Gaines driving the vehicle twenty minutes after it was

stolen and the evidence from the historical call detail

analysis, we find it more than adequate to support

Gaines’s conviction.

10a

Finally, Gaines argues that the district court recognized the weakness of the government’s proof by

suggesting that he renew his Rule 29 motion if he

were to receive an unfavorable verdict. He reads too

much into this suggestion. If the district court

trulyhad a concern about the verdict, it could have

granted a judgment of acquittal sua sponte.

See Fed. R. Crim. P. 29(a) (“The court may on its

own consider whether the evidence is insufficient to

sustain a conviction.”). But it didn’t do so.

***

For the reasons given, we affirm the district court’s

judgment. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED

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APPENDIX B

AO 245B (Rev. 09/11)(VAED rev. 2)

Sheet 1 - Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Eastern District of Virginia

Alexandria Division

UNITED STATES

OF AMERICA,

v.

Case Number:

1:17-cr-00106-TSE-4

USM number:

47812-007

LAMONT KORTEZ

GAINES,

Defendant’s Attorney:

Daniel Suleiman, Esquire

Defendant.

William M. Chick, Jr., Esquire

JUDGMENT IN A CRIMINAL CASE

The defendant was found guilty on Counts 1, 12,

13, 14, 15, 26, 27, 28, 29, 39, 40 and 41 of the Indictment after a plea of not guilty.

Accordingly, the defendant is adjudicated guilty of

the following counts involving the indicated offenses.

Title and Nature of

Section

Offense

18 U.S.C.

§ 1951(a)

Offense Offense Count

Class

Ended

Conspiracy to Felony

Obstruct

Commerce by

Robbery

4/13/2017

1

12a

Title and Nature of

Section

Offense

Offense Offense Count

Class

Ended

18 U.S.C.

§ 2 and

195l(a)

Obstructing Felony

Commerce by

Robbery

4/6/2017

12

18 U.S.C.

§ 2 and

195l(a)

Obstructing Felony

Commerce by

Robbery

4/8/2017

13

18 U.S.C.

§ 2 and

1951(a)

Obstructing Felony

Commerce by

Robbery

4/12/2017

14

18 U.S.C.

§ 2 and

2119

Carjacking

Felony

3/18/2017

15

Felony

18 U.S.C. Using,

§ 2 and

Carrying and

924(c)(l)(A) Brandishing a

Firearm

During and in

Relation to a

Crime of

Violence

4/6/2017

26

18 U.S.C. Using,

Felony

§ 2 and

Carrying and

924(c)(l)(A) Brandishing a

Firearm

During and in

Relation to a

Crime of

Violence

4/8/2017

27

13a

Title and Nature of

Section

Offense

Offense Offense Count

Class

Ended

18 U.S.C. Using,

Felony

§ 2 and

Carrying and

924{c)(l)(A) Brandishing a

Firearm

During and in

Relation to a

Crime of

Violence

4/12/2017

28

18 U.S.C. Using,

Felony

§ 2 and

Carrying and

924(c)(l)(A) Brandishing a

Firearm

During and in

Relation to a

Crime or

Violence

3/18/2017

29

18 U.S.C.

§ 2 and

922(g)(l)

Possession of a Felony

Firearm by a

Prohibited

Person

4/6/2017

39

18 U.S.C.

§ 2 and

922(g)(I)

Possession of a Felony

Firearm by a

Prohibited

Person

4/8/2017

40

18 U.S.C.

§ 2 and

922{g)(I)

Possession of a Felony

Firearm by a

Prohibited

Person

4/12/2017

41

14a

AO 245B (Rev. 12/03)(VAED rev. 2)

Sheet 1 - Judgment in a Criminal Case

Page 2 of 7

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

The defendant was found not guilty on (Count 9,

10, 23, 24, 37 and 38 of the Indictment) as to defendant LAMONT KORTEZ GAINES.

As pronounced on October 4, 2019, the defendant

is sentenced as provided in pages 2 through 7 of this

Judgment. The sentence is imposed pursuant to the

Sentencing Refonn Act of 1984.

It is ORDERED that the defendant shall notify the

United States Attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify

the court and United States Attorney of material

changes in economic circumstances.

Signed this 4th day of October, 2019.

s/ T. S. Ellis, III

T. S. Ellis, III

United States District Judge

15a

AO 245B (Rev. 9/11) (VAED rev. 2)

Judgment in a Criminal Case

Sheet 2 - Imprisonment

Page 3 of 7

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be

imprisoned for a term of THREE HUNDRED AND

FIFTY-SIX (356) MONTHS with credit for time

served as computed by the Bureau of Prisons

pursuant to statute.

This term of imprisonment consists of terms of

TWENTY (20) MONTHS on each of Counts 1, 12, 13,

14, IS, 39, 40 and 41 to run concurrently with each

other and EIGHTY-FOUR (84) MONTHS on each of

Counts 26, 27, 28, and 29 to run consecutively to each

other and consecutively to the sentence imposed on

Counts 1, 12, 13, 14, IS, 39, 40, and 41.

The Court makes the following recommendations

to the Bureau of Prisons:

The Court recommends that the defendant be

designated to a facility as close as possible to his

family in Virginia.

The defendant is remanded to the custody of the

United States Marshal.

16a

RETURN

I have executed this judgment as follows:

Defendant delivered on

to

at ___________________ ,

with a certified copy of this Judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

17a

AO 245B (Rev. 09/11)(VAED rev. 2)

Judgment in a Criminal Case

Sheet 3 - Supervised Release

Page 4 of 7

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of FIVE (5)

YEARS.

This term consists of terms of THREE (3) YEARS

on each of Counts 1, 12, 13, 14, 15, 39, 40 and 41 and

FIVE (5) YEARS on each of Counts 26, 27, 28, and 29

to all run concurrently with each other.

The Probation Office shall provide the defendant

with a copy of the standard conditions and any special

conditions of Supervised Release.

The defendant shall report to the probation office

in the district to which the defendant is released

within 72 hours of release from the custody of the

Bureau of Prisons.

The defendant shall not commit another federal,

state or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain

from any unlawful use of a controlled substance. The

defendant shall submit to one drug test within 15 days

of release from imprisonment and periodic drug tests

thereafter, as determined by the court.

18a

The defendant shall not possess a fireann,

ammunition, destructive device, or any other

dangerous weapon.

If this judgment imposes a fine or restitution

obligation, it is a condition of Supervised Release that

the defendant pay any such fine or restitution in

accordance with the Schedule of Payments set forth in

the Criminal Monetaty Penalties sheet of this

judgment.

STANDARD CONDITIONS OF SUPERVISED

RELEASE

The defendant shall comply with the standard

conditions that have been adopted by this court set

forth below:

1) the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

2) the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

3) the defendant shall answer truthfully all inquiries

by the probation officer and follow the instructions

of the probation officer;.

4) the defendant shall support his or her dependents

and meet other family responsibilities;

5) the defendant shall work regularly at a lawful

occupation, unless excused by the probation

officer for schooling, training, or other acceptable

reasons;

19a

6) the defendant shall notify the probation officer at

least ten days prior to any change in residence or

employment;

7) the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use,

distribute, or administer any narcotic or other

controlled substance or any paraphernalia related

to such substances, except as prescribed by a

physician;

8) the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

9) the defendant shall not associate with any persons

engaged in criminal activity and shall not

associate with any person convicted of a felony,

unless granted pennission to do so by the

probation officer;

10) the defendant shall pennit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view of the probation officer;

11) the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

12) the defendant shall not enter into any agreement

to act as an infonner for a special agent of a law

enforcement agency without the pennission of the

court;

13) as directed by the probation officer, the defendant

shall notify third parties of risks that may be

20a

occasioned by thedefendant’s criminal record or

personal history or characteristics and shall

pennit the probation officer to make such

notifications and to confirm the defendant’s

compliance with such notification requirement.

21a

AO 245B (Rev. 09/11)(VAEO rev. 2) )

Judgment in a Criminal Case

Sheet 3A - Supervised Release

Page 5 of 7

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

SPECIAL CONDITIONS OF SUPERVISION

While on Supervised Release pursuant to this

Judgment, the defendant shall also comply with the

following additional special conditions:

1) The defendant shall apply all monies received

from income tax refunds, lottery winnings,

inheritances,judgments, and any anticipated or

unexpected financial gains, to the outstanding

court-ordered financial obligation, or in a lesser

amount to be determined by the court, upon the

recommendation of the probation officer.

2) The defendant shall not incur new credit charges

or open additional lines of credit without the

approval of the probation officer.

3) The defendant shall provide the probation officer

access to any requested financial information.

4) The defendant shall participate in a program

approved by the United States Probation Office

for substance abuse, which program may include

residential treatment and testing to determine

whether the defendant has reverted to the use of

drugs or alcohol, with partial cost to be paid by the

defendant, all as directed by the probation officer.

22a

5) The defendant shall participate in a program

approved by the United States Probation Office

for mental health treatment. The cost of this

program is to be paid by the defendant as directed

by the probation officer.

23a

AO 245B (Rev. 09/11)(VAED rev. 2)

Judgment in a Criminal Case

Sheet 5 - Criminal Monetary Penalties Page 6 of 7

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

penalties under the Schedule of Payments on Sheet 6.

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Count Assessment

Fine

Restitution

1

$100.00

$0.00

$7378.00

12

$100.00

$0.00

$0.00

13

$100.00

$0.00

$0.00

14

$100.00

$0.00

$0.00

15

$100.00

$0.00

$0.00

26

$100.00

$0.00

$0.00

27

$100.00

$0.00

$0.00

28

$100.00

$0.00

$0.00

29

$100.00

$0.00

$0.00

39

$100.00

$0.00

$0.00

40

$100.00

$0.00

$0.00

41

$100.00

$0.00

$0.00

TOTALS:

$1200.00

$0.00

$7378.00

FINES

No fines have been imposed in this case.

RESTITUTION

The defendant shall pay restitution in the amount

of $7,378.00 pursuant to the Restitution Order

entered by the Court.

25a

Of the total restitution amount, the defendant is

jointly and severally liable with the following codefendants: Andrew Bernard Duncan, docket no. 1:17cr-00106-TSE-2 to pay $1,880.00 and Anton Durrell

Harris, docket no. l:17-cr-00106- TSE-3 to pay

$7,378.00 and Desmar Rashad Gayes, docket no. 1

:17-cr-00106-TSE-1 to pay $1,880.00.

26a

AO 245B (Rev. 09/11)(VAED rev. 2)

Sheet 6 - Schedule of Payments

Page 7 of 7

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties are

due as follows:

The special assessment shall be due in full

immediately.

Interest on the restitution is waived. On any unpaid

balance, the defendant shall pay to the Clerk at least

$100 per month or 25% of net income, whichever is

greater, beginning 60 days after release from any

period of confinement. The court reserves the option

to alter this amount, depending upon defendant’s

financial circumstances at the time of supervised

release.

Of the total restitution amount, the defendant is

jointly and severally liable with the following codefendants: Andrew Bernard Duncan, docket no. l:17cr-00106-TSE-2 to pay $1,880.00 and Anton Durrell

Harris, docket no. 1:17-cr-00106- TSE-3 to pay

$7,378.00 and Desmar Rashad Oayes, docket no. 1:17cr-00106-TSE-l to pay $1,880.00.

The defendant shall forfeit the defendant’s interest in

the following property to the United States:

SEE Order of Forfeiture entered by the Court on

October 4, 2019.

27a

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during

imprisonment. All criminal monetary penalties,

except those payments made through the Federal

Bureau of Prisons’ Inmate Financial Responsibility

Program, are made to the Clerk of the Court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed. Payments shall be applied in the

following order: (1) assessment (2) restitution

principal (3) restitution interest (4) fine principal (5)

fine interest (6) community restitution (7) penalties

and (8) costs, including cost of prosecution and court

costs.

Nothing in the court’s order shall prohibit the

collection of any judgment, fine, or special assessment

by the United States.

28a

AO 245B (Rev. 09/11)(VAED rev. 2)

Judgment in a Criminal Case

Statement of Reasons - Page 1

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

STATEMENT OF REASONS

I. COURT FINDINGS ON PRESENTENCE

INVESTIGATION REPORT

A. ☐ The court adopts the presentence

investigation report without change.

B. ☒ The court adopts the presentence

investigation report with the following

changes.

(Check all that apply and specify court

determination, findings. or comments,

rererencing paragraph numbers in the

presentence report. if applicable.)

(Use page 4 if necessary.)

The Court adopts the presentence

investigation report with change and

sustains defendant’s objection to the PSR

calculation, pursuant to Section IBl.2(d).

Accordingly. the Offense level to decreases

from level 27 to 26, which results in a

guidelines range for Counts 1, 12, 13, 14, 15,

39, 40, and 41 of 78 to 97 months guidelines

rather than 87 to I08 months which

changes.

☐ Chapter Two of the U.S.S.G. Manual determinations by court (including changes

29a

to base offense level or specific offense

characteristics):

☐ Chapter Three of the U.S.S.G. Manual

adjustment determinations by court (including changes to victim-related

adjustments. rote in the offense. obstruction of justice. multiple counts. or

acceptance of responsibility):

☐ Chapter Four of the U.S.S.O. Manual detenninationsby court (including changes

to criminal history category or scores. career offender. or criminal livelihood

determinations):

☐ Additional Comments or Findings (including comments or factual findings

concerning certain infonnation in the

presentence report that the Federal Bureau of Prisons may rely on when it

makes inmate classification. designation. or programming decisions. Specify

court comments or findings. including

paragraphs inthe presentence report.)

C. ☐ The record establishes no need for a

presentence investigation report pursuant

to Fed.R.Crim.P.32.

II. COURT FINDING ON MANDATORY

MINIMUM SENTENCE (Check all that

apply.)

A. ☐ No count of conviction carries a mandatory

minimum sentence.

30a

B. ☒ Mandatory minimum sentence imposed

C. ☐ One or more counts of conviction alleged in

the indictment cany a mandatory minimum

term of imprisonment. but the sentence

imposed is below a mandatory minimum

term because the court has determined that

the mandatory minimum does not apply

based on

☐ findings of fact in this case

☐ substantial assistance (18 U.S.C. §

3SS3(e))

☐ the statutory safety valve (18 U.S.C. §

3SS3(f))

III. COURT DETERMINATION OF ADVISORY

GUIDELINE RANGE (BEFORE

DEPARTURES):

Total Offense Level:

27 → 26

Criminal History:

III

Imprisonment Range:

87 to 108 months: Counts: 1, 12-15. 39-41 →

78 to 97 months:

7 years consecutive to all other counts: Count 26

7 years consecutive to all other counts: Count 27

7 years consecutive to all other counts: Count 28

7 years consecutive to all other counts: Count 29

Supervised Release:

1 to 3 years: Counts 1, 12-15, 39-41

31a

2 to 5 years: Counts 26-29

Fine Range

$25,000 to $250,000

☒ Fine waived or below the guideline range because of inability to pay.

32a

AO 245B (Rev. 09/11)(VAED rev. 2)

Judgment in a Criminal Case

Statement of Reasons - Page 2

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

STATEMENT OF REASONS

IV.

ADVISORY GUIDELINE SENTENCING

DETERMINATION (Check only one.)

A. ☐ The sentence is within an advisory guideline

range that is not greater than 24 months,

and the court finds no reason to depart.

B. ☐ The sentence is within an advisory guideline

range that is greater than 24 months, and

the specific sentence is imposed for these

reasons. (Use page 4 if necessary.)

C. ☐ The court departs from the advisory

guideline range for reasons authorized by

the sentencing guidelines manual. (Also

complete Section V,)

D. ☒ The court imposed asentence outside the

advisory sentencing guideline system. (Also

complete Section VI.)

V. DEPARTURES AUTHORIZED BY THE

ADVISORY SENTENCING GUIDELINES

(lf applicable.)

A. The sentence imposed departs (Check

only one.):

☒ below the advisory guideline range

☐ above the advisory guideline range

33a

B. Departure based on (Check all that

apply.):

1. Plea Agreement (Check all that apply

and check reason(s) below.):

☐ 5K1.1 plea agreement based on the

defendant’s substantial assistance

☐ 5K3.1 plea agreement based on Early

Disposition or “Fast-track” Program

☐ binding plea agreement for departure

accepted by the court

☐ plea agreement for departure, which the

court finds to be reasonable

☐ plea agreement that states that the

government will not oppose a defense

departure motion

2. Motion Not Addressed in a Plea Agreement (Check all that apply and check

reason(s) below.):

☐ 5K1.1 government motion based en the

defendant’s substantial assistance

☐ 5K3.l government motion based en Early

Disposition or “Fast-track” Program

☐ government motion for departure

☐ defense motion for departure to which the

government did not object

☐ defense motion for departure to which the

government objected

3. Other

34a

☐ Other than a plea agreement or motion by

the parties for departure (Check reason(s)

below.):

C. Reason(s) for Departure (Check all that

apply other than SKI.I or 5K3.I)

☐ 4Al.3 Criminal History In Adequaey

☐ 5Hl.1 Age

☐ 5Kl.2 Education and Vocational Skills

☐ 5Hl.4 Physical Condition

☐ 5H1.5 Employment Record

☐ 5Hl.6 Family Ties and Responsibilities

☐ 5H1.11 Military Record, Charitable

Services, Good Works

☐ 5K2.0 Aggravating or Mitigating

Circumstances

☐ 5K2.1 Death

☐ 5K2.2 Physical Injury

☐ 5K2.3 Extreme Psychological Injury

☐ 5K2.5 Property Damage or Loss

☐ 5K2.6 Weapon or Dangerous Weapon

☐ SK2.7 Disruption of Government Function

☐ 5K2.8 Extreme Conduct

☐ 5K2.9 Criminal Purpose

☐ 5K2.10 Victim’s Conduct

☐ 5K2.11 Lesser Hann

☐ 5K2.12 Coercion and Duress

☐ 5K2.13 Diminished Capacity

35a

☐ 5K2.14 Public Welfare

☐ 5K2.16 Voluntary Disclosure of Offense

☐ 5K2.17 High-Capacity Semiautomatic

Weapon

☐ 5K2.18 Violent Street Oang

☐ 5K2.20 Aberrant Behavior

☐ 5K2.21 Dismissed and Uncharged Conduct

☐ 5K2.22 Age or Health of Sex Offenders

☐ 5K3.1 Early Disposition, “fast-track”

Program

☐ 5K2.23 Discharged Tenns of Imprisonment

☐ Other guideline basis (e.g.• 2B1.1

commentary)

D. Explain the facts justifying the

departure. (Use page 4 if necessary.)

36a

AO 245B (Rev. 09/11)(VAED rev. 2)

Judgment in a Criminal Case

Statement of Reasons - Page 3

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

STATEMENT OF REASONS

VI.

SENTENCE OUTSIDE THE ADVISORY

GUIDELINE SYSTEM (Check all that

apply.)

A.

The sentence imposed is (Check only

one.):

☒ below the advisory guideline range

☐ above the advisory guideline range

B.

Sentence imposed pursuant to (Check all

that apply.):

1. Plea Agreement (Check all that apply and

check reason(s) below.):

☐ binding plea agreement for a sentence

outside the advisory guideline system

accepted by the court

☐ plea agreement for a sentence outside the

advisory guideline system, which the court

finds to be reasonable

☐ plea agreement that states that the

government will not oppose a defense

motion to the court to sentence outside the

advisory guideline system

37a

2. Motion Not Addressed in a Plea

Agreement (Check all that apply and

check reason(s) below.):

☐ government motion for a sentence outside

of the advisory guideline system

☐ defense motion for a sentence outside of the

advisory guideline system to which the

government did not object.

☐ defense motion for a sentence outside of the

advisory guideline system to which the

government objected

3. Other

☒ Other than a plea agreement or motion by

the parties for a sentence outside of the

advisory guideline system (Check reason(s)

below.):

C.

Reason(s) for Sentence Outside the

Advisory Guideline System (Check all

that apply.)

☒ the nature and circumstances of the offense

and the history and characteristics of the

defendant pursuant to 18 U.S.C.

§3553(a)(1)

☒ to reflect the seriousness of the offense, to

promote respect for the law, and to provide

just punishment for the offense (18 U.S.C §

3SS3(a)(2)(A))

☒ to afford adequate deterrence to criminal

conduct (18 U.S.C § 3553(a)(2)(B))

☐ to protect the public from further crimes of

the defendant (18 U.S.C § 3553(a)(2)(c))

38a

☐ to provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in the

most effective manner (18 U.S.C §

3553(a)(2)(D))

☒ to avoid unwarranted sentencing

disparities among defendants (18 U.S.C §

3SS3(a)(6))

☒ to provide restitution to any victims of the

offense (18 U.S.C § 3553(a)(7))

D. Explain the facts justifying a sentence outside the advisory guideline system. (Use page 4

if necessary.)

Although defendant’s crimes were very serious and

warranted a severe sentence, the sentence compelled

by law is in excess of what is required to serve the

goals of sentencing under§ 3553(a), but Congress did

not permit judicial discretion on the § 924(c) counts.

39a

AO 245B (Rev. 09/11)(VAED rev. 2)

Judgment in a Criminal Case

Statement of Reasons - Page 4

Defendant’s Name: GAINES, LAMONT KORTEZ

Case Number:

1:17-cr-00106-TSE-4

STATEMENT OF REASONS

VII.

COURT DETERMINATIONS OF

RESTITUTION

A. ☐ Restitution not applicable.

B. Total Amount of Restitution: $7,378.00

C. Restitution not ordered (Check only one.):

1. ☐ For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A,

restitution· is not ordered because the number of identifiable victims is so large as to

make restitution impracticable under 18

U.S.C. § 3663A( c )(3)(A).

2. ☐ For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A,

restitution is not ordered because detennining complex issues of fact and relating

them to the cause or amount of the victims’

losses would complicate or prolong the sentencing process to a degree that the need to

provide restitution to any victim would be

outweighed by the burden on the sentencing

process under 18 U.S.C. § 3663A(c)(3)(8).

3. ☐ For other offenses for which restitution is

authorized under 18 U.S.C. § 3663 and/or

40a

required by the sentencing guidelines, restitution is not ordered because the

complication and prolongation of the sentencing process resulting from the

fashioning of a restitution order outweigh

the need to provide restitution to any victims under 18 U.S.C. § 3663(a)(l)(B)(ii}.

4. ☐ Restitution is not ordered for other reasons:

D. ☒ Partial restitution is ordered under 18 U.S.C.

§ 3553(c) for these reasons:

VIII. ADDITIONAL FACTS JUSTIFYING THE

SENTENCE IN THIS CASE (If

applicable.)

Sections I, II, III, IV, and VII of the Statement of

Reasons