U.S. v. MIELL

ion of Meill's adjusted offense level for this offense is as follows: The base offense level is 14 pursuant to U.S.S.G. § 2J1.3(a)(1), because that is the appropriate guideline for a violation of 18 U.S.C. § 1623; the base offense level is increased 3 levels, pursuant to U.S.S.G. § 2J1.3(b)(2), for substantial interference with the administration of justice; and the offense level is increased a further 2 levels for obstruction of justice, resulting in an adjusted offense level of 19.

d. Group 4

Group 4 consists of the two charges of filing a false tax return, in violation of 26 U.S.C. § 7206(1), in Counts 22 and 23. The adjusted offense level calculation for this group is the following: The base offense level is 16, pursuant to U.S.S.G. § 2T1.1(c)(1)(A), because this is the appropriate guideline for a violation of 26 U.S.C. § 7206(1), and the tax loss is $94,080, as explained above; the base offense level is increased 2 levels for failure to report income exceeding $10,000 in any year from criminal activity, pursuant to U.S.S.G. § 2T1.1(b)(1), as explained above; and the offense level is increased a further 2 levels for obstruction of justice, also as explained above, resulting in an adjusted offense level of 20 for Group 4.

4. The Total Offense Level

Pursuant to U.S.S.G. § 3D1.4, the Adjusted Offense Level for Group 2, 35, is assigned 1 unit, and no other group is assigned any units. Thus, the greater offense level and combined adjusted offense level is 35. Miell's only objections to the Total Offense Level in the Final PSIR are his reiteration of his prior objections to the calculation of the adjusted offense level for each group and his assertion that he is entitled to a reduction for acceptance of responsibility. I have overruled those objections, so the Total Offense Level stands at 35.

5. Criminal history calculation

As I pointed out, above, Miell's criminal history is minor, consisting of a $100 fine in 1999 for "failure to assist"; a $500 fine in 2002 for "reckless driving"; and one day in jail and a $250 fine in 2003 for "driving while license under suspension." As a result, he was assessed no criminal history points in the guidelines sentencing calculation, which places him in Criminal History Category I in the Sentencing Table at U.S.S.G. Chapter 5, Part A.

6. Advisory guidelines range calculation

With a Total Offense Level of 35 and a Criminal History Category of I, Miell's advisory Guideline Imprisonment Range, pursuant to the Sentencing Table at U.S.S.G. Chapter 5, Part A, is 168 to 210 months. Although Miell objects to this calculation, based on his previous objections, and contends that the proper advisory guidelines range would be 15 to 21 months, I expressly overrule that objection. The advisory guidelines imprisonment range is in Zone D of the Statutory Sentencing Table and, therefore, the minimum term of imprisonment shall be satisfied by a sentence of imprisonment. U.S.S.G. § 5C1.1(f).

The applicable statutory provisions provide for supervised release for up to 3 years for Counts 1 through 20, see 18 U.S.C. § 3583(b)(2), and for up to 1 year for Counts 22 and 23, see 18 U.S.C. § 3583(b)(3). The applicable guidelines provisions provide for supervised release for 2 to 3 years for Counts 1 through 20, see U.S.S.G. § 5D1.2(a)(2), and 1 year for Counts 22 and 23, see U.S.S.G. § 5D1.2(a)(3). The applicable statutory provision provides for probation for 1 to 5 years, see 18 U.S.C. § 3561(c)(1), and the applicable guidelines provision provides for no probation, see U.S.S.G. § 5C1.1(f). The applicable statutory provisions provide for fines of up to $250,000 for Counts 1 through 18, see 18 U.S.C. §§ 3571(b)(3) and 3571(d); up to $250,000 for Counts 19 and 20, see 18 U.S.C. § 3571(b)(3); and $100,000 for Counts 22 and 23, see 26 U.S.C. § 7206. The special assessment of $100 per count is mandatory and due immediately. 18 U.S.C. § 3013(a)(2)(A). The advisory guidelines provisions provide for fines of $20,000 to $250,000. U.S.S.G. § 5E1.2(c)(3). I overrule Miell's objections that the fine range should be $4,000 to $40,000, based on his assertion that the Total Offense Level should be 14, for all of the reasons previously stated.

As noted above, restitution was ultimately resolved by an agreement of the parties.

I find that the appropriate advisory guidelines calculation and consideration of all information developed during sentencing proceedings would warrant a guidelines sentence of 210 months of imprisonment, the top of the advisory guidelines range; supervised release for 3 years for Counts 1 through 20, and 1 year for Counts 22 and 23; and a fine of $250,000.

C. Determination Of Whether To Depart Or Vary

In the second step of the sentencing methodology, I must consider whether a departure or a variance is appropriate. Roberson, 517 F.3d at 993; Rivera, 439 F.3d at 447. The prosecution sought an upward departure, based on its contentions that Miell's criminal conduct far exceeded what was necessary to establish his guideline offense level, citing U.S.S.G. § 5K2.0; that Miell committed offenses to conceal other crimes, citing U.S.S.G. § 5K2.8, but presumably intending to cite U.S.S.G. § 5K2.9; and that Miell's offense level fails to account for the dismissed "perjury" charge, citing U.S.S.G. § 5K2.21. Miell sought what he called "a downward departure" based on his objections to the guidelines calculations in the PSIR and the 18 U.S.C. § 3553(a) factors, i.e., a variance. Miell contends that no upward departure or variance is appropriate, but that a downward departure or variance is appropriate.

Miell's objections to the guidelines calculations in the PSIR simply do not state any cognizable ground for a downward departure. See U.S.S.G. §§ 5K1.1, 5K2.0, 5K2.1-24. Moreover, Miell's reliance on the 18 U.S.C. § 3553(a) factors as the basis for a "departure" suggests that what he is seeking is actually a "variance" based on those factors. Because I will explain, below, why I find that the § 3553(a) factors warrant an upward variance, I plainly reject any contention that they warrant a downward variance. Finally, because I overruled Miell's objections to the guidelines calculations, on factual grounds, the facts in the case do not otherwise provide a basis for a downward departure or downward variance.

Turning to the prosecution's upward departure motion, I recognize that the prosecution has asserted sound bases for an upward departure. That is, there are features of this case that potentially take it outside the guidelines "heartland" and make it a special or unusual case; the Commission has neither forbidden nor discouraged departures on the grounds asserted by the prosecution; and, indeed, the Commission has encouraged departures based on those features. See, e.g., Koon v. United States, 518 U.S. 81, 95 (1996) (agreeing that these are the questions that a sentencing court should consider on a motion for a departure, citing United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). Nevertheless, I find that the features cited by the prosecution and others that I find particularly significant in this case are best addressed by an upward variance, rather than by an upward departure, because in the context of a variance, I can consider the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors. See, e.g., United States v. Jones, 509 F.3d 911, 915 (8th Cir. 2007) (reiterating its rejection in United States v. Solis-Bermudez, 501 F.3d 882, 886 (8th Cir. 2007), of the contention that the sentencing court cannot grant an upward variance on grounds that it has failed to determine would justify an upward departure from the advisory guidelines, because the sentencing court can decline to depart from the advisory guidelines range but still impose a variance under 18 U.S.C. § 3553(a)). As explained in more detail in my analysis of the third step of the sentencing methodology, below, based on an individualized assessment of the facts presented, I find that a significant upward variance from the advisory guidelines sentencing range is warranted here by significant and compelling circumstances. See Kane, 552 F.3d at 752 (standards for determining whether and to what extent to vary). Moreover, if

I note that, under prevailing law in this circuit, I was not required to give Miell notice pursuant to Rule 32(h) of the Federal Rules of Criminal Procedure of my intent to consider an upward variance. See United States v. Sitting Bear, 436 F.3d 929, 932 (8th Cir. 2006) (finding no merit to a defendant's claim that Rule 32(h) requires notice of the court's intent to vary in light of all of the § 3553(a) factors, citing United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005) ("[N]otice pursuant to Rule 32(h) is not required when the adjustment to the sentence is effected by a variance, rather than by a departure."), and United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005) (same), cert. denied, 546 U.S. 1125 (2006)). However, I gave notice at the commencement of the sentencing hearing in September 2009 that I would consider an upward variance, and Miell could not articulate what prejudice he might suffer from lack of earlier notice of my intention to consider an upward variance nor did he seek a continuance to prepare to address the issue of an upward variance. Miell was plainly on notice prior to the sentencing hearing in September 2009 as well as the continuation of the sentencing hearing in August 2010 of the possibility of an upward variance, for example, from the prosecution's motion for an upward departure and notice of factors that might warrant an upward departure in paragraphs 178 and 179 of the PSIR available prior to the September 2009 sentencing hearing and paragraphs 180 and 181 of the Final PSIR.

there is some flaw in my determination to vary upward, I would impose the same increase, in the alternative, as an upward departure.

Therefore, I deny Miell's motion for a downward departure (or variance) as unjustified in light of the Sentencing Guidelines and the § 3553(a) factors, deny the prosecution's motion for an upward departure, essentially as moot in light of my determination that an upward variance is appropriate, and vary upward from the advisory guidelines range in this case based on my consideration of the § 3553(a) factors, for the reasons explained below.

D. Consideration Of The § 3553(a) Factors

The final step in the determination of a defendant's sentence is to apply the factors in 18 U.S.C. § 3553(a). Roberson, 517 F.3d at 993; Rivera, 439 F.3d at 447. Where the court has determined that an upward variance is appropriate, how much to vary upward also requires consideration of the § 3553(a) factors. See United States v. Papakee, 573 F.3d 569, 577 (8th Cir. 2009) (the question is whether the § 3553(a) factors, as a whole, justify the extent of a variance).

The § 3553(a) factors are "the nature and circumstances of the offense and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1); "the need for the sentence imposed," § 3553(a)(2), including the need for the sentence "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense," § 3553(a)(2)(A), "to afford adequate deterrence to criminal conduct," § 3553(a)(2)(B), "to protect the public from further crimes of the defendant,"

§ 3553(a)(2)(C), and "to provide the defendant with needed educational or vocational training" or other care or treatment, § 3553(a)(2)(D); "the kinds of sentences available," § 3553(a)(3); "the kinds of sentence and the sentencing range established" for similar offenses, § 3553(a)(4); "any pertinent policy statement," § 3553(a)(5); "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," § 3553(a)(6); and "the need to provide restitution to any victims of the offense," § 3553(a)(7). In considering the § 3553(a) factors, "[a] district court is not required to recite each of the sentencing factors under 18 U.S.C. § 3553(a), as long as the record makes clear that they were considered." United States v. Powills, 537 F.3d 947, 950 (8th Cir. 2008) (citing United States v. Hernandez, 518 F.3d 613, 616 (8th Cir. 2008), and Rita v. United States, 551 U.S. 338, 127 S.ct. 2456, 2468-69 (2007)).

After balancing the § 3553(a) factors, I find that an advisory guidelines sentence of 168 to 210 months for this defendant is inadequate to accomplish the goals of sentencing, and that a longer sentence, up to the longest statutory maximum for the offenses that Miell has committed, 20 years (for mail fraud in violation of 18 U.S.C. § 1341), is a sentence that is "sufficient, but not greater than necessary" to accomplish the goals of sentencing. 18 U.S.C. § 3553(a). Although I am not required to recite my consideration of each of the § 3553(a) factors, see Powills, 537 F.3d at 950, I will expressly do so in this case. In that consideration, as in my determination that an upward variance is appropriate, my central focus is the mail fraud group of offenses arising from the "damage deposit fraud scheme," not only because that group carries the longest advisory guidelines sentence and maximum statutory sentence, but also because I find that it involves the most egregious conduct. 1. The nature and circumstances of the offense

The first § 3553(a) factor requires a sentencing court to consider "the nature and circumstances of the offense." 18 U.S.C. § 3553(a)(1). I recounted above, in some detail, the nature and circumstances of Miell's offenses, including the damage deposit fraud scheme. It is the aggregate loss of approximately $1.2 million and the number of victims, something over 300 and perhaps more than 1,000, that drive the advisory guidelines sentencing calculation for this group of offenses. See U.S.S.G. § 2B1.1(b)(1)(G) (16-level increase, because the loss was more than $1,000,000); U.S.S.G. § 2B1.1(b)(2)(C) (6-level increase, because the offense involved 250 or more victims). It is also true, as the prosecution argues in its motion for upward departure pursuant to U.S.S.G. § 5K2.0, that the number of victims involved far exceeds the number necessary for a 6-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(C). While I certainly find the aggregate amount of loss and the number of victims troubling, these are not the factors that I ultimately find most troubling about the nature and circumstances of the damage deposit mail fraud group of offenses.

Rather, what I find most troubling about the nature and circumstances of the damage deposit mail fraud offenses is that Miell routinely and systematically victimized people who were too economically vulnerable and often too unsophisticated to fight back for relatively slight gain in each individual case. The extra amount that he "squeezed" out of his tenants by fraudulent means was less than one thousand dollars in most cases — often considerably less. Yet Miell pursued such meager gains, either individually or in aggregate, in comparison to his substantial personal wealth, without regard to the financial hardship,

I will return to the gains that Miell obtained from his damage deposit fraud scheme relative to his personal wealth in consideration of "the history and characteristics of the defendant" pursuant to 18 U.S.C. § 3553(a)(1).

emotional distress, or other inconvenience that he might inflict, simply because he thought it unlikely that his victims would have the energy, time, or resources to contest his fraudulent damage claims in court. As one victim put it,

For weeks I stressed over the possibility that I was going to have to miss classes to go to court just to fight back! In the end, I knew I was being suckered out of my security deposit that was due back in full, but I had decided that this was a fight I didn't have the strength or time to take on. In retrospect, I truly believe he counted on that.

Presentence Investigation Report, Victim Impact Statements, ¶ 32. In other words, Miell repeatedly "squeezed" economically vulnerable and often unsophisticated people, for relatively little extra "juice," because he could get away with it.

In the circumstances of this case, the 2-level enhancement of Miell's advisory guidelines sentence pursuant to U.S.S.G. § 3B1.3 for abuse of a position of trust with regard to damage deposits does not even begin to correlate to the nature and extent of the harm that Miell's scheme inflicted on people that he expected would be too economically vulnerable or unsophisticated to do anything about it. See United States v. White, 506 F.3d at 635, 645 (8th Cir. 2007) (the court may vary upward on the basis of factors already taken into account in the formulation of the guidelines). Miell's conduct in perpetrating such a scheme shows at least as much disregard for the consequences to others, if not downright intent to harm others, as can be attributed to the average drug mule, or even a mid-level or high-level drug conspirator, who could easily face a mandatory minimum statutory sentence at least as long as Miell's maximum statutory sentence. The perpetration of a scheme that inflicted harm on hundreds of victims and that counted on the economic vulnerability or lack of sophistication of those victims, I believe, warrants an upward variance to the statutory maximum sentence of 240 months for the mail fraud offenses. Cf. United States v. Erpenbeck, 532 F.3d 423, 439 (6th Cir. 2008) (affirming a 65-month upward variance from the advisory guidelines maximum to 300 months of imprisonment under the § 3553(a) factors for bank fraud, in light of the sentencing court's consideration of the suffering and harm experienced by the 260 homeowners on whose property construction liens were not removed as the result of the defendant's bank fraud, even though they were not the primary victims of the fraud scheme).

Indeed, it is doubtful that Miell's victimization of hundreds of tenants would ever have come to light, but for the government's investigation of other fraudulent activity by Miell, which impinged upon an insurance company with the resources to fight back. It is clear that some small claims court judges had concerns that Miell was obtaining judgments without adequate documentation. Unfortunately, their concerns were mollified by the fraudulent Home Doctor invoices that Miell started to bring in, apparently because the judges had been demanding better documentation to support Miell's damage deposit claims and reducing judgments without it. Even though some of the judges remained sufficiently concerned that they asked Miell whether the company providing the invoices was affiliated with him, Miell mollified those concerns by brazenly lying, recognizing that the judges were unlikely to challenge his representations further in the absence of an opposing party and knowing that the judges had no independent source of information to the contrary. In other words, not only did Miell use sophisticated means to perpetrate his fraud scheme, involving frauds to perpetrate and perpetuate a larger fraud scheme and to avoid detection, see U.S.S.G. § 2B1.1(b)(9) (2-level enhancement for use of sophisticated means to perpetrate the fraud); see also U.S.S.G. § 5K2.8 (permitting an upward departure if the

defendant committed the offense in order to facilitate or conceal the commission of another offense), but fraud became his everyday way of doing business.

To my mind, the nature and circumstances of the damage deposit fraud offenses in this case, alone, warrant a sentence at the statutory maximum for the mail fraud offenses. When I consider those offenses in the context of all of Miell's other criminal conduct, I only become more convinced that such a sentence is appropriate.

2. The history and characteristics of the defendant

The first § 3553(a) factor also requires the sentencing court to consider "the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1). What I find most troubling about Miell's history and characteristics is that Miell was already wealthy when he embarked on and pursued the scheme to defraud his tenants out of their damage deposits, yet he chose to victimize hundreds of economically vulnerable or unsophisticated people for relatively small gains in individual cases. As mentioned above, the extra amount that Miell "squeezed" out of his tenants by fraudulent means was less than one thousand dollars in most cases — often considerably less. Even in the aggregate, the gain that Miell obtained did little to enhance his total wealth, although it warranted the 16-level enhancement of his advisory guidelines sentence for loss in excess of $1 million. See U.S.S.G. § 2B1.1(b)(1)(G). Miell cannot even urge the overwhelming temptation of great riches as an excuse for his illegal conduct, because the aggregate gain of approximately $1.2 million that he realized is slight compared to his self-professed net worth of more than $36 million, stated in a Personal Financial Statement submitted to the probation office, or the more modest net worth of $15 million reflected in his bankruptcy filings. A crime of fraud by one who already has more than enough — and who cannot argue that he suffered a deprived or abusive childhood or the compulsion of an expensive addiction — is simply a crime of greed. A crime of fraud by one who is otherwise successful, apparently by legitimate means, is also particularly disturbing. Thus, in light of Miell's history and characteristics, this is a case of greed for the sake of greed, not greed for the sake of gain.

Again, Miell tries to undermine such a conclusion by pointing to evidence of his tendency to "hoard." However, I find only minimal evidence of "hoarding," and none that suggests a mental health problem sufficient to support a Rule 12.2 defense or a departure or variance. The "hoarding" was certainly neither sufficiently serious nor sufficiently related to the offense conduct in this case to warrant any reduction in Miell's sentence or to mitigate evidence that an increase in his sentence is appropriate.

Miell's long periods of apparently law-abiding behavior in this case are undermined by the length of time that he was perpetrating the fraudulent activities at issue in this case. Thus, he cannot be heard to claim that his criminal behavior was aberrant or should be outweighed by his lack of criminal history. Again, I find that his criminal conduct was his everyday way of doing business.

I have not lost sight of the fact that Miell also had two years of law school before withdrawing to pursue his real estate business. I have to consider that his legal training may have helped him to execute or hide his fraudulent scheme; certainly, it did not have the anticipated or at least hoped-for effect of encouraging him to recognize and avoid unlawful conduct.

Thus, I find that Miell's history and characteristics warrant more significant punishment than the advisory guidelines might mete out, despite Miell's lack of prior criminal history. Instead, these factors warrant a sentence at the statutory maximum for the mail fraud offenses in this case. On the other hand, although I could theoretically impose consecutive sentences for the various groups of offenses to exceed the statutory maximum of 20 years on the damage deposit mail fraud group of offenses, if I deemed it appropriate to do so in light of the § 3553(a) factors, see Jordan, 435 F.3d at 697, I do not find that a sentence in excess of 20 years is appropriate in light of Miell's age, other personal characteristics, criminal conduct, or remaining § 3553(a) factors.

3. The need for the sentence imposed

The second § 3553(a) factor that the sentencing court must consider is "the need for the sentence imposed," § 3553(a)(2), including the need for the sentence "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense," § 3553(a)(2)(A), "to afford adequate deterrence to criminal conduct," § 3553(a)(2)(B), "to protect the public from further crimes of the defendant," § 3553(a)(2)(C), and "to provide the defendant with needed educational or vocational training" or other care or treatment, § 3553(a)(2)(D). I find that this "need for the sentence imposed" factor also warrants imposition of a sentence at the statutory maximum of 20 years for the mail fraud offenses.

Specifically, I find that a sentence at the statutory maximum for Miell's damage deposit mail fraud offenses is necessary "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. § 3553(a)(2)(A). Miell's fraudulent conduct, perpetrated over several years against hundreds of victims and motivated, I find, by greed and his belief that his victims would not or would not be able to fight back, also involved repeated abuse of the judicial system with fraudulent claims. Thus, Miell's conduct is both very serious and demonstrative of profound disrespect for the law. In these circumstances, I find that a sentence at the statutory maximum for the mail fraud offenses is required to provide just punishment. In contrast, the paltry sentence that Miell asserts is appropriate, based on his serious misconceptions about his conduct, would amount to nothing more than a "slap on the hand," perpetuating the belief that mere "white collar" criminals do not pay for their disrespect of the law or the rights of others. Even a sentence at the top end of the advisory guidelines range, 210 months, is, in my view, insufficient either to reflect the seriousness of Miell's offenses or to provide just punishment for his repeated offenses. Indeed, I would find that a sentence of 240 months is appropriate for the mail fraud counts arising from the damage deposit fraud scheme, if those were the only charges against Miell. Such a sentence becomes even more compelling when I consider all of the other criminal conduct in which he engaged.

I also find that deterrence, including both specific deterrence of this defendant and general deterrence of others similarly situated, warrants a sentence at the statutory maximum for the mail fraud offenses in this case. See 18 U.S.C. § 3553(a)(2)(B). To the extent that Miell and people like Miell can be deterred from victimizing those more economically vulnerable or less sophisticated than themselves, and more specifically, to the extent that those in a position to defraud tenants out of their damage deposits can be deterred from doing so, particularly in light of the difficulty of discovering such schemes, a sentence at the statutory maximum for one such offense in this case is appropriate. Again, even "white collar" criminals, who repeatedly prey on economically vulnerable victims precisely because they believe that those victims are too economically vulnerable or too unsophisticated to fight back, should be deterred by substantial sentences up to the maximum for a fraud offense of the kind that they commit. Such a sentence will also

I am not sure that I have ever imposed a sentence to send a "message" to others or, in the parlance of sentencing lingo, as a "general deterrent." Certainly, in the daily ritual of sentencing drug defendants in our court to lengthy mandatory minimums, there is no anecdotal or empirical evidence that sentencing to "send a message to others" actually "works." In my view, it not only does not work as a general deterrent, but federal sentences in drug offenses — especially for the vast majority of addict defendants who are the daily grist of federal drug sentencing — are so harsh that these sentences themselves promote fairly widespread disrespect and undermine our citizens' confidence in the fairness of federal sentencing. That would probably be a risk worth taking if these sentences actual worked, but they don't.
In this case, however, while "sending a message" is not my motivation or intent to any major degree, I hope that this sentence sends a seismic shockwave to every unscrupulous landlord who has repeatedly, unfairly, and unlawfully withheld renters' damage deposits. You know who you are. As this topnotch federal prosecution shows, the long arm of the United States Department of Justice, backed by endless resources, is here to seize you whether you are an inner-city slumlord, a college town landlord with a history of ripping off college students, a rural property owner, or an unscrupulous landlord working your scam anywhere in between.

have the effect of protecting the public from further crimes of this defendant, because he has proven himself to be a serial fraudster and perjurer. See 18 U.S.C. § 3553(a)(2)(C).

Finally, while a defendant who shows "exceptional" acceptance of responsibility may receive a reduction in his sentence, notwithstanding that he also receives an increase for obstruction of justice, see U.S.S.G. § 3C1.1, cmt. n. 4; United States v. Johnson, 474 F.3d 515, 521 (8th Cir. 2007), Miell's conduct amounts to, if anything, exceptional denial of responsibility. This is so, because of his lengthy allocution in which he continued to deny any criminal conduct, his attempt to call more than one hundred witnesses at the sentencing hearing to contest his guilt on the charges to which he pleaded guilty, and his motion to set aside his guilty plea on untenable grounds of alleged innocence.

4. The kinds of sentences available and the sentencing ranges for similar offenses

The third § 3553(a) factor that the sentencing court must consider is "the kinds of sentences available," see 18 U.S.C. § 3553(a)(3), and the fourth factor is "the kinds of sentence and the sentencing range established" for similar offenses. 18 U.S.C. § 3553(a)(4). Neither of these factors mitigates my belief that a sentence at the statutory maximum for the mail fraud offenses is appropriate here.

As to the kinds of sentences available, 18 U.S.C. § 3553(a)(3), the statute applicable to Miell's mail fraud offenses expressly provides for imprisonment up to a maximum of 20 years for each such offense. As calculated above, the advisory guidelines sentence available for the damage deposit mail fraud offenses is 168 to 210 months. On the other hand, probation is also an available sentence on the damage deposit mail fraud offenses pursuant to 18 U.S.C. § 3561(c)(1), but probation is not recommended under the advisory guidelines, pursuant to U.S.S.G. § 5C1.1(f), which requires that the minimum term of imprisonment shall be satisfied by a sentence of imprisonment in a "Zone D" case, such as this. I have to say that I have trouble imagining a case in which probation, although theoretically available, was less appropriate, for the reasons stated above.

Similarly, although the mail fraud, perjury, and tax charges all carry significant fines — up to $250,000 for each mail fraud and perjury offense, see 18 U.S.C. § 3571(b)(3), and up to $100,000 for each tax offense, see 26 U.S.C. § 7206 — and even the advisory guidelines provisions suggest significant fines — between $20,000 and $200,000, see U.S.S.G. § 2(c)(3) — imposing the total maximum statutory or guidelines fines, from about $4 million to about $5.2 million, on someone with Miell's ability to pay might be appropriate, but still would not be enough, in my view, either standing alone or in conjunction with some lesser term of imprisonment, to effect the other purposes of sentencing for all of his offenses. Moreover, the present condition of Miell's finances is confusing, because of his bankruptcy and the likelihood that mortgages have been foreclosed by now on a substantial number of his properties. In these circumstances, a longer term of imprisonment is appropriate, because a shorter term cannot be imposed in conjunction with the heaviest fines.

As to the sentences available for similar offenses, see 18 U.S.C. § 3553(a)(4), the advisory guidelines sentencing range for the other mail fraud offenses arising from the insurance fraud scheme — the most comparable offenses at issue here — is considerably less than the advisory guidelines sentencing range for the mail fraud offenses arising from the damage deposit fraud scheme, even though the statutory maximum sentence is the same. The difference between the advisory guidelines sentences for the insurance mail fraud offenses, on the one hand, and the damage deposit mail fraud offenses, on the other, gives me no pause, however. This is so, because the harm inflicted in the two groups of mail fraud offenses is quite different, in terms of the number of victims, aggregate loss, the kind of individual harm to the victims, and the presence of predation on economically vulnerable or unsophisticated people in the damage deposit fraud scheme. Similarly, the statutory and advisory guidelines sentencing ranges for the other offenses in this case are considerably less than either the statutory or advisory guidelines sentences for the damage deposit mail fraud offenses, but I do not find those offenses to be sufficiently similar to the damage deposit mail fraud offenses for the differences in advisory or statutory sentences to cause me any concern.

Finally, the advisory guidelines sentencing range is not increased by the "grouping" of the mail fraud offenses arising from the damage deposit fraud scheme over what it would be for a single mail fraud offense, if the sentencing court takes into account all of the relevant conduct from the damage deposit fraud scheme. Nor is the advisory guidelines range increased by Miell's other criminal conduct in other counts or count groups. I find the lack of any effect on Miell's advisory guidelines range from his multiple convictions for two separate fraud schemes, perjury, and filing of false tax returns to be a powerful justification for what is a relatively modest upward variance of 30 months to the statutory maximum for the mail fraud offenses.

Therefore, I do not find that either of the factors in 18 U.S.C. § 3553(a)(3) and (4) counsels against a sentence at the statutory maximum for the mail fraud offenses and, instead, I find that each supports such a sentence.

5. Any pertinent policy statement

The fifth § 3553(a) factor is "any pertinent policy statement." 18 U.S.C. § 3553(a)(5). Here, one pertinent policy statement can be found in U.S.S.G. § 5C1.1(f), which provides, "If the applicable guideline range is in Zone D of the Sentencing Table, the minimum term shall be satisfied by a sentence of imprisonment." While this policy statement does not necessarily counsel a sentence of imprisonment up to the statutory maximum, it certainly does counsel imposition of a term of imprisonment. I have not found any other pertinent policy statement, nor have I been directed to one by the parties, suggesting either a more stringent or more lenient sentence in this case than the statutory maximum sentence for the mail fraud offenses that I find is appropriate based on consideration of other § 3553(a) factors. Therefore, this factor is "neutral" here.

6. The need to avoid unwarranted disparities

The sixth § 3553(a) factor is "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). A concomitant of this principle is the need to avoid unwarranted similarities among defendants who are not similarly situated. See, e.g., Gall, 128 S.ct. at 600 ("[I]t is perfectly clear that the District Judge considered the need to avoid unwarranted disparities, but also considered the need to avoid unwarranted similarities among other co-conspirators who were not similarly situated," and there was no procedural error in doing so).

A brief survey of sentences for mail fraud or conspiracy to commit mail fraud in violation of 18 U.S.C. § 1341 in the Eighth Circuit Court of Appeals in the last few years reveals a few substantial, but nevertheless more lenient sentences for such offenses than I am imposing here. Even so, these high-end sentences all involved circumstances that are plainly distinguishable from the fraud scheme here in terms of the number of victims chosen because the defendant believed that they were too economically vulnerable or unsophisticated to fight back and the defendant's abuse of the judicial process demonstrating disrespect for the law. See, e.g., United States v. Straw, ___ F.3d ___, ___, 2010 WL 3034766 (8th Cir. Aug. 5, 2010) (affirming 180-month sentence imposed following conviction for four counts of wire fraud in violation of 18 U.S.C. § 1343, one count of mail fraud in violation of 18 U.S.C. § 1341, one count of making, possessing, and uttering a forged security in violation of 18 U.S.C. § 513(a), and one count of money laundering in violation of 18 U.S.C. § 1957, which was an upward variance from the advisory guidelines range of 97 to 121 months, where the district court found that the scheme involved 50 or more victims); United States v. Parish, 565 F.3d 528 (8th Cir. 2009) (affirming 156 months imprisonment for the organizer or manager of a mortgage fraud scheme, convicted of conspiracy to commit mail fraud, 60 months for his wife, and 120 months for their co-conspirator, but even though the scheme involved over 200 straw buyers, using new loan proceeds to pay older loans, and caused a loss of $20 million to $50 million, the victims were mortgage companies, not individual home buyers); United States v. Lewis, 557 F.3d 601 (8th Cir. 2009) (affirming 204 months of imprisonment for one of the defendants in a fraud scheme involving sale of a fitness program to schools with a promise of later reimbursement, involving a loss of approximately $30 million and 294 victim schools, noting that the sentence was on a downward variance from an advisory guidelines sentence of 324 to 405 months, based on the district court's conclusion that the guideline sentence was greater than necessary to promote respect for the law and to protect the public); United States v. Harstein, 500 F.3d 790 (8th Cir. 2007) (remanding a 135-month

sentence for mail fraud and credit card fraud, involving loss in excess of $2.8 million and 180 victims from a Ponzi scheme to obtain new loans from individuals to pay old loans from individuals, where the loans were obtained or delayed payments were tolerated by providing free travel to the lenders, for improperly shifting the burden of proof to the defendant to disprove amount of loss), appeal after remand, 557 F.3d 589 (8th Cir. 2009) (affirming resentencing to 133 months).

Thus, while I have noted that the sentence I impose on Miell is higher than other recent sentences imposed for violations of the same statute, I nevertheless conclude that the sentence I impose is appropriate to avoid unwarranted similarities among defendants who are not similarly situated. See, e.g., Gall, 128 S.ct. at 600.

7. The need to provide restitution

The final § 3553(a) factor is "the need to provide restitution to any victims of the offense." 18 U.S.C. § 3553(a)(7). Restitution is required by 18 U.S.C. § 3663A for the mail fraud offenses and permissible under 18 U.S.C. § 3663 for the tax offenses. Although the restitution issues in this case are complicated, they were ultimately resolved by an agreement of the parties, so that they need not have any impact on the appropriate sentence in this case. I note that Miell's capacity to provide restitution will not be limited by his imprisonment, where he already has considerable personal wealth. Therefore, this final § 3553(a) factor does not mitigate the appropriate sentence in this case, as indicated by other factors.

8. Summary

For all of the reasons stated above, and upon a consideration of the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors, I vary upward from the greatest advisory guidelines sentencing range of 168 to 210 months for Miell's numerous offenses to 240 months, the statutory maximum for the mail fraud offenses. My determination that an upward variance is appropriate is based, in particular, on my consideration of Miell's conduct in using a fraud scheme to "squeeze" hundreds of tenants out of their damage deposits, because he believed that they were too economically vulnerable or unsophisticated to do anything about it, for no other reason than greed for greed's sake. In my view, a sentence of 240 months of imprisonment is appropriate in light of all of the § 3553(a) factors and, therefore, is sufficient, but not greater than necessary, to accomplish the goals of sentencing. I impose concurrent sentences, at the statutory maximum, for each of the other counts, pursuant to the "grouping" rules and U.S.S.G. § 5G1.2(c).

III. CONCLUSION

For all of the reasons stated above, I vary upward from the greatest advisory guidelines sentencing range of 168 to 210 months for Miell's numerous offenses to 240 months, the statutory maximum for the mail fraud offenses.

THEREFORE,

1. The prosecution's August 20, 2009, Motion For Upward Departure (docket no. 175) is denied as moot, in light of my upward variance;

2. Defendant Miell's August 26, 2009, Motion For Downward Departure (docket no. 182) is denied; and

3. Defendant Miell is sentenced to the following terms of imprisonment:

a. concurrent sentences of 240 months of imprisonment, followed by 3 years of supervised release, on the mail fraud charges in Counts 1 through 6 of the Third Superseding Indictment of the Indictment, arising from the insurance fraud scheme;

b. concurrent sentences of 240 months of imprisonment, followed by 3 years of supervised release, on the mail fraud charges in Counts 7 through 18 of the Third Superseding Indictment, arising from the damage deposit fraud scheme;

c. concurrent sentences of 60 months of imprisonment, followed by 3 years of supervised release on each of the perjury charges in Counts 19 and 20; and

d. concurrent sentences of 36 months of imprisonment, with 1 year of supervised release, on each of the charges of filing a false tax return in Counts 22 and 23,

all with such other terms and conditions stated at the completion of the sentencing hearing on September 27, 2010.

This Memorandum Opinion And Order Regarding Sentencing shall be attached to and incorporated by reference, in its entirety, into the Statement of Reasons and Judgment in this case.

IT IS SO ORDERED.