1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________ ) UNITED STATES, ) ) v. ) Criminal Action N o. 15-140-01 (RMC) ) RASHIDA KING, ) ) Defendant. )

_________________________________ )

SENTENCING MEMORANDUM Rashida King entered a p lea of guilty on January 14, 2016 to a one-count Information which charged her w ith Conspiracy to Defraud the Un ited States with Respect to Claims, in violation of 18 U.S.C . § 286. Ms. King faced a sent encing range under the U.S. Sentencing Guidelines of 10 t o 16 months in custody and one to three years of supervised release. This Court sentence d her to a term of probation for t hree years with a condition of home detention from 7:00 p.m. to 6:00 a .m. and location monitoring. This Memorandum Opinion explains the Court’s variance fr om the Sentencing Guidelines.
I. FACTS A. Criminal Charge and Sentencing Ms. King participated in a cons piracy involving more than 130 i ndividuals that filed hundreds of false tax retur ns based on false names, false addresses, false income figures, and false entitlements to over $42 million in tax refunds. The identity theft and tax fraud scheme involved several layers of coc onspirators; Ms. King both typed some false tax returns and also established numerous bank account s into which she deposited tax refunds and withdrew money for delivery to others in the upper layers of the conspiracy. Although the conspiracy continued for five or more years, Ms. Ki ng’s participation was limited to the period between May 2010 and2 February 2011. The parties agree d that Ms. King has a restitut ion obligation of $82,939.41 to the Internal Revenue Service for f alse tax refunds attributable to her. The Government did not seek forfeiture. The base offense level for Ms. King’s crime was 6. Because the loss in this case was at least $82,939.41, the base offe nse level was increased b y 6 levels, to 12. See U.S.S.G. § 2B1.1(b)(1)(D). In addition, the offense involved ten or mor e victims, adding two more levels to the base offense. See U.S.S.G. § 2B1.1(b)(2)(A)(i). Thus , the adjusted offense leve l was 14. Because Ms. King accepted responsibility early and entered a pr e-trial plea (she responded to a target letter, with counsel, and ne gotiated a pre-indictment pl ea), the offense level was reduced two levels, to level 12. See U.S.S.G. § 3E1.1(a). Ms. King’s total criminal history score w as zero, and thus her criminal histor y category was I. U.S.S.G. C hapter 5, Part A. Based on an offense level of 12 and a criminal history category of I, the Guidelines provided for a s entence of custody of 10 to 16 month s, plus one to three years of supervised release. The Governme nt sought a sentence of six mo nths’ incarceration to be followed by a term of supervised re lease that would include six months’ home detention. Ms. King sought a downward departure of four levels pursuant to U.S .S.G. § 5H1.6, which provides for departure where there are extraordinary family circumstance s, and a sentence of home confinement 1 without incarceration. The Court appreciated the base s for each of these recommendatio ns but adopted neither. Instead, the Court sen tenced Ms. King to a term of pr obation for three years with a

1 While Ms. King sought “home confinement,” she did not specify whether she sought it as a condition of probation or a condition of supervised release, sh e did not specify the term sought, and she did not specify whether s he proposed to be released fro m home confinement for certain hours of the day for work, medi cal appointments, grocery shoppi ng, or other reasons.3 condition of home detention from 7:00 p.m. to 6:00 a.m. with lo cation monitoring. The Court also imposed a restitutio n obligation of $82,939.41, to be shar ed jointly and severally with defendant Antonio Cooper, Cri minal Case No. 15-152-01. Because Ms. King did not have the ability to pay, the Court waived a fine and the cost of locatio n monitoring. The Court also imposed a $100 special assessment. B. Personal Background of Defendant Ms. King worked in the Washingt on, D.C., metropo litan area, pri marily in the general health care field, f or various periods between 2004 and January 2015, when she relocated to Georgia. She has a high sc hool diploma and some college. H er jobs have always been paid on an hourly basis. In 2009, she los t her job because she had missed too many days due to a difficult pregnancy. She found hers elf without work for two ye ars. During that period, she engaged in the criminal conduct at issue. Once she became empl oyed again in 2011, she ceased her criminal conduct. However, there have continued to be long periods of time since 2011 during which Ms. King once again found herself without work. T here is no evidence that she ever returned to unlawful activity. Ms. King is the mother of three children. Her eldest daughter is 23 years old, working on a master’s degree i n Florida, and supporting herself as an executive chef. Ms. King’s 14-year-old son lives with h is father in the District of Columbia. Her youngest daughter is seven years old and totally r eliant on her mother. The fath er of the seven-year-old is married to another woman, has a separa te family, and has not been invol ved in raising or supporting the seven-year-old. At the times when Ms. King was unemployed and financially indig ent, she and her young daughter slept on friends ’ couches, lived in shelters , or lived in a car. With Court4 authorization, Ms. King moved t o Georgia in January 2015 to ass ist her elderly, ill father. Ms. King had no job in the D.C. area at t hat time. Her father’s he alth further det eriorated, and he now lives in a nursing home. Aft er months of living in a shelt er with her daughter in Georgia, Ms. King found a job and an apartme nt. At this time, she has e stablished normalcy in her child’s life. Ms. King’s daughter is a n honor roll stud ent with perfec t attendance, and she is a top reader. There is no other family member who could care for Ms. King’s y oung daughter if Ms. King were incarcerated. T hus, if Ms. King were incarcer ated, the seven -year-old would become a ward in the Georgia fo ster care program. Due to these facts, Ms. King sought a downward departure due to extraor dinary family circumstances un der U.S.S.G. § 5H1.6 and a sentence of home confinemen t without incarceration.
II. LEGAL STANDARD At sentencing, a district court must first ascertain and consid er the appropriate sentencing range recommended by the Sentencing Guidelines. How ever, the Guidelines are no longer mandatory and provide r ecommendations based on national experience only. United States v. Booker, 543 U.S. 220 (2005). To devise a sentence that is “sufficient but not greater than necessary,” a court also mus t fully consider the sentencin g factors identifie d in 18 U.S.C. § 3553(a). Those relevant here include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterre nce to criminal conduct;5 (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for— (A) the applicable category of offense committed by the applicable category of defe ndant as set forth in the guidelines . . . . This Court provided such analysis at the Sentencing Hearing, an d issues this Sentencing Memorandum to explicate its reasoning.
III. ANALYSIS Ms. King moved for downward departur e due to extraordinary fami ly circumstances under U.S.S.G . § 5H1.6. She sought a term of hom e confinement with no time in custody. Chapter 5, Part H of the U.S. S entencing Guidelines addresses specific offender characteristics. Section 5H1.6 a dvises that “family ties and r esponsibilities are not ordinarily relevant in determining whether a departure may be warranted.” Id. However, the Commentary to § 5H1.6 suggests that a departur e may be warranted where: (i) The defendant’s service of a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essent ial financial support, to the defendant’s family. (ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily incident t o incarceration fo r a similarly s ituated defendant.6 U.S.S.G. § 5H1.6 Commentary, Appli cation Note 1(B)(i) & (ii). See United States v. Dyce , 91 F.3d 1462, 1466 (D.C. Cir. 1996) (a court may depart based on f amily ties and responsibilities only if the case “significan tly differs” from the norm). The Government did not contest th e fact that Ms. King is the sole caretaker of her seven-year-old daughter, but it argued that a downward departur e under § 5H1.6 was not warranted because the loss of caretaking and financial support that would be caused by Ms. King’s incarceration would not e xceed the harm ordinarily incid ent to incarceration. The Government insisted that the se riousness of the offense and the need for deterrence strongly supported its recommendation to i mpose a sentence of six months ’ incarceration, followed by supervised release that would inc lude six months’ home detentio n. The Government asserted that it already had tak en Ms. King’s persona l situation into ac count when it made its recommendation. The Court denied Ms. King’s re quest for a downward departure un der U.S.S.G. § 5H1.6 because she did not demonstrate that she and her family would suffer extraordinary harm due to incarceration. Even s o, considering the record as a whole, the Court determined that a variance was appropriate. T r. 7/29/2016 at 19 (Court: “I rea lly have to vary”). See also United States v. Fumo, 655 F.3d 288, 317 (3d Cir. 2011) (a “depar ture” diverges from t he originally calculated sentencing range for reasons contained in the Guidel ines themselves and a “variance” diverges from the Guidelines r ange based on an exercise of the court’s discretion under 18
U.S.C. § 3553(a)). When determining a sentence, a court must consider the nature a nd circumstances of the offense and the history a nd characteristics of the defen dant to impose a sentence that is “sufficient but not greater tha n necessary” to fulfill the goal s of sentencing. 18 U.S.C. § 3553(a).7 The Court agreed with the Govern ment that Ms. King’s conduct wa s serious and that a message of deterrence was needed. Ms. Ki ng completed tax returns that sought tax refunds, knowing full well that the information she pr ovided on the tax returns was f alse and the claims for tax refunds were fraudulent. She also established multiple bank accounts f or the purpose of hiding the deposit of multiple refunds. This kind of insidious crime is d ifficult to identify, investigate, and prove and, in the meantime, the Un ited States population that p ays its taxes bears the burden. Although Ms. King’s crime was se rious, in the five-year lifetim e of the conspiracy she was a relativel y short-term participant. This d oes not fully mitigate the seriousness of her crime, but its relative duration and Ms. Kin g’s voluntary departure from the conspiracy must be taken into a ccount. Further, at sentencing the Court explained that “Ms. King has shown herself to be bac k on the right road, she has be haved herself [for the years since she regained a job in 2011], she ha s [gotten] a job, she has wo rked hard, she is taking care of her daughter, et cetera, and there i s no one else that [can] take c are of her daughter.” Tr. 7/29/2016 at 19. The Court asked whether Ms. King’s “crime warrants blow ing her fragile family apart again,” and answered its own que stion stating, “I don’t think i t does.” Id. at 19-20. Also, considering the need to promot e respect for the law, the Court found that Ms. King’s conduct since her early admission of guilt to the Government demonstrat ed that she had regained her respect for the law and that the likelihood that Ms. King will engage in further criminal conduct is very small. Under the unique circumstances presented here, the Court senten ced Ms. King to three years’ probation with a condition of home detention from 7:00 p.m. to 6:00 a.m. and8 location monitoring because this s entence was sufficient but no t greater than necessary to fulfill the goals of sentencing. 2
IV. CONCLUSION For the reasons stated above, the C ourt imposed a sentence that varied from the Guidelines.

Date: August 23, 2016 /s/ ROSEMARY M. COLLYER United States District Judge

2 The Probation Officer recomme nded a term less than the 36-mont hs for the home confinement condition of probation. Tr. 7/29/ 2016 at 21. The Court declin ed to accept this recommendation because of the strength of the Government’s arguments on seriou sness and deterrence as well as the underlying facts. The Court warned Ms. King: [T]his is not going to be easy but it is easier than going to j ail. That is the best I can tell you. Youget to keep your job. You get to stay home with your daughter, but you are going to have to be [home] by 7:00 at night because they are going to be able to tell if you don’t. If you break it and you don’t ge t home by 7:00 every night then you have violated the terms of your probation and you can be jailed . So it is in your control, but it is not going to be easy. I think three years is going to be very hard . . . Id . at 22. Provided that Ms. King fu lly complies with the terms of her sentence, counsel may move to remove the home confinem ent condition after 18 months.