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DEFENDANT MERUDH PATEL’S REPLY TO UNITED STATES’ RESPONSE 

TO DEFENDANT’S SENTENCING MEMORANDUM

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SETH P. CHAZIN (CA SBN 133777) 

Attorney at Law

LAW OFFICES OF SETH P. CHAZIN

1164 Solano Ave 

Albany, CA 94706

Telephone: (510) 507-8100

Facsimile: (510) 525-0087 

Attorney for Defendant

MERUDH PATEL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES OF AMERICA

Plaintiff,

vs.

MERUDH PATEL,

Defendant.

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No. 5:17-cr-00069-BLF

 

DEFENDANT MERUDH PATEL’S REPLY 

TO UNITED STATES’ RESPONSE TO 

DEFENDANT’S SENTENCING 

MEMORANDUM

Date: October 17, 2017

Time: 9:00 A.M.

Judge: Hon. Beth Labson Freeman

Courtroom: Courtroom 3, 5th Floor

Defendant MERUDH PATEL hereby submits the following reply to the United States’

Response to Defednant’s [sic] Sentencing Memorandum (hereinafter, “Response”), filed under 

seal on October 13, 2017.

I.

A VARIANCE BASED IN PART ON THE OFFENSE CONDUCT BEING MR. 

PATEL’S FIRST CRIMINAL OFFENSE AND THAT THE OFFENSE IS A 

MARKED DEVIATION FROM AN OTHERWISE LAW-ABIDING LIFE IS 

SUPPORTED BY THE FACTS AND THE LAW. 

Notably, Mr. Patel is not requesting a departure for aberrant behavior under §5K2.20 of the 

United States Sentencing Guidelines (hereinafter, “Guidelines”). Instead, he is requesting a 

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variance under 18 U.S.C. § 3553(a) based, in part, on the fact that this is his first offense and that 

the offense conduct constitutes a marked deviation from an otherwise law-abiding life. 

The government cites a number of out-of-circuit cases to support its argument that Mr. 

Patel does not qualify for a “variance departure” based on aberrant conduct. Response, p. 2:19.

Importantly, each of these cases involves a departure under §5K2.20 of the Guidelines (or its 

predecessor), not a variance under 18 U.S.C. § 3553(a) as Mr. Patel has requested here. See United 

States v. Hillyer, 457 F.3d 347 (4th Cir. 2006) (illegal dredging activity); United States v. 

DeVegter, 439 F.3d 1299 (11th Cir. 2006) (bribery of financial adviser); United States v. 

Dickerson, 381 F.3d 251 (3d Cir. 2004), as amended (Aug. 28, 2006) (drug importation); United 

States v. May, 359 F.3d 683 (4th Cir. 2004) (cross-burning hate crime).

In addition, it is worth noting that while the court of appeal in Hillyer ruled that the district 

court’s §5K2.20 departure for aberrant behavior was not supported by the evidence, the district 

court ultimately affirmed the original sentence of probation at resentencing (in fact, the term of 

probation was decreased from three years to two years). See Eastern District of North Carolina 

Case No. 2:04-CR-00018-BO, Docket 63. This represented a significant downward variance under 

18 U.S.C. § 3553(a) from the applicable Guideline range of 12 to 18 months.

The one Ninth Circuit case that the government cites actually supports Mr. Patel’s request 

for a downward variance based, in part, on aberrant conduct. In United States v. Colace, 126 F.3d 

1229, 1232 (9th Cir. 1997), the Ninth Circuit explained that Colace was not entitled to a downward 

departure based on a finding of aberrant conduct because he “had plenty of opportunity to reflect 

on his criminal conduct during the two months he flouted the law. He chose banks in different 

counties because, by his own admission, he was too well known in his home town, a decision that 

reflects planning and forethought. He did not withdraw from his criminal life-style until he was 

arrested. He committed the separate crime of fleeing probation and, again, did not cease his 

lawlessness until he was arrested eight months later. As we said in United States v. Green, 105 

F.3d 1321, 1323 (9th Cir.1997), ‘[w]hile we have not required that the behavior be a single 

spontaneous or thoughtless act involving no planning, we have to some extent relied on the 

concept of ‘singularity or spontaneity.”’” Id. at 1232. “Over a period of eleven weeks, [Colace]

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committed at least a dozen bank robberies, each requiring independent thought and planning, each 

putting a new set of victims in jeopardy, each yielding separate loot. And, there was his long flight 

from custody which, unlike the district court, we consider to be Colace’s responsibility, not the 

government’s.” Id.

In contrast, Mr. Patel engaged in a single scheme to use pirated credentials from a single 

individual (E.D.) to post unauthorized advertising on Facebook over a period of one to two 

months. Moreover, the offense is Mr. Patel’s first, and is clearly a marked deviation from an 

otherwise law-abiding life. As a departure under §5K2.20 is not sought here, Mr. Patel’s request 

does not need to meet the specific requirements of that section, but rather, is one factor to consider 

in determining whether the “history and characteristics of the defendant” support a variance under 

18 U.S.C. § 3553(a). 

As explained by the Ninth Circuit in United States v. Lam, 20 F.3d 999, 1003 (9th Cir. 

1994), “[s]ome courts have insisted that to be truly aberrant the behavior must be a single 

spontaneous or thoughtless act that involves no planning and that there can be no consideration of 

whether it was a first offense. See, e.g., United States v. Marcello, 13 F.3d 752, 760–61 (3d 

Cir.1994). We, however, have not been so restrictive.” Later, in United States v. Rojas-Millan, 234 

F.3d 464 (9th Cir. 2000), the court noted:

There are ... several factors that courts may consider when 

assessing whether behavior is aberrant. The court may, for 

example, consider whether the conviction was for a first offense. 

[footnote omitted] United States v. Lam, 20 F.3d 999, 1003-04 (9th 

Cir.1994). It may evaluate whether or not the defendant engaged in 

a significant period of advanced planning or reflection, his 

motivation for undertaking the unlawful scheme, and whether the 

action was a one-time event or part of a regular pattern. See 

[United States v. Green, 105 F.3d 1321, 1322-1323 (9th 

Cir.1997)]; United States v. Pierson, 121 F.3d 560, 564-65 (9th 

Cir.1997) (holding that the defendant was not eligible for an 

aberrant behavior departure where his “participation in the cocaine 

distribution scheme required substantial planning and involved 

hundreds of overt acts spanning a period of at least eight months”) 

.... If a district court finds a “convergence,” United States v. 

Fairless, 975 F.2d 664, 667 (9th Cir.1992), of these or similar 

factors demonstrating that a defendant’s actions “constitute a 

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single act of truly aberrant behavior,” United States v. Dickey, 924 

F.2d 836, 838 (9th Cir.1991), a downward departure is justified.

Rojas-Millan, 234 F.3d at 475.

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Similarly, in United States v. Paul, 561 F.3d 970 (9th Cir. 2009), the Ninth Circuit 

sanctioned reliance on the fact that the offense was the defendant’s first as a mitigating factor and 

as a basis for a lower sentence. In Paul, the defendant was convicted by a jury of committing theft 

from a local school district. The offense conduct spanned approximately three months and 

involved numerous checks totaling $17,868. Her Guideline range was 10 to 16 months. The Ninth 

Circuit found that two within-Guidelines sentences imposed by the district court—first 16 months 

and then 15 months—were both unreasonable: In finding the sentence too high, the court 

specifically noted, “Paul was a first-time offender with absolutely no criminal record 

whatsoever....” Id. at 973.

Thus, it is clear from this post-Booker Ninth Circuit case, the Court may properly rely on 

the fact that the offense is the defendant’s first in granting a downward variance. 

II.

MR. PATEL OCCUPIED A MINOR ROLE COMPARED TO D.L. AND THE 

OTHER COCONSPIRATORS. 

Many of the facts recited in D.L.’s previously undisclosed declaration and the 

government’s brief are facts that have never before been offered, either in the government’s initial 

sentencing memorandum or in the Probation Office’s Presentence Investigation Report (“PSR”), 

and are uncorroborated. For example, the government alleges through this declaration that Mr. 

Patel and D.L. “established” 4th Gear Media together in January 2013 as 65/35 percent “partners” 

and ultimately shared all profits 50/50. See Response, p. 3:23-28. In fact, 4th Gear Media was 

 

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The court in this pre-Booker case analyzed aberrant conduct in the context of a Guidelines 

departure under 18 U.S.C. § 3553(b) since a variance under 18 U.S.C. § 3553(a) was not available 

at that time. Again, Mr. Patel is not here requesting a departure but a variance based on his history 

and characteristics as a first-time offender who has lived an otherwise law-abiding life. 

Nonetheless, the factors discussed in the context of a departure are instructive.

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always D.L.’s sole company and Mr. Patel never had any ownership interest in it whatsoever. As 

stated in the PSR, Mr. Patel was D.L.’s employee, not his “partner.” See PSR, ¶ 11 (“Patel, who 

worked for D.L. ...”); ¶ 64 (“4th Gear Media is owned by co-conspirator D.L.”); see also ¶ 13 

(D.L. also conspired with another individual, Justin Daves, to post advertisements on the 

MyThings accounts, showing that he was directing other lower-level conspirators like Mr. Patel to 

place ads).

It is also worth noting that D.L. has a strong incentive to minimize his culpability and pin 

as much on Mr. Patel as possible to reduce his sentencing exposure. Thus, his statements are not 

inherently credible.

In addition, the government argues that Mr. Patel was “involved from the creation of the 

scheme.” Response, p. 3:21. This is not possible as both the government and D.L. admit that it was 

J.R. that initially had the idea to steal the credentials. He then passed them to E.D., who contacted 

D.L., who then—at the end of the chain—looped in Mr. Patel to accomplish the technical aspects 

of the scheme. See Response p. 4:6 – 4:3; see also p. 5:2 (Mr. Patel “actively participated in [the 

scheme] by using his technical capabilities.”). Both the government and D.L. also agree that the 

proceeds went directly to D.L.’s company, 4th Gear Media, and it was D.L. who came to an 

agreement with E.D. regarding what percentage he would be paid, and then doled out the profits to 

E.D. (who paid J.R.) and Mr. Patel. Id.2In fact, these facts only bolster Mr. Patel’s argument for a 

minor role reduction. 

In sum, the facts cited by the government in opposing the minor role reduction—i.e., that 

Mr. Patel was involved near the beginning of the month-long scheme, was aware that the invoice 

accounts were stolen, used the stolen accounts to place advertisements on Facebook, and was 

financially rewarded—are not sufficient to undermine Mr. Patel’s strong factual and legal claim 

for a sentence reduction. See Response at p. 5:14-16.

 

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The government’s continued reference to the allegation that Mr. Patel and D.L. each made 

$330,000 from the scheme directly contradicts its express stipulation that Mr. Patel received 

approximately $67,000 in relation to the invoice accounts.

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III.

THE HARSH IMPACT OF THE LOSS GUIDELINES IS A FACTOR TO 

CONSIDER UNDER 18 U.S.C. § 3553(a).

The government does not cite a single case or other authority in support of its position that 

the loss guidelines are reasonable, other than citing the Guidelines themselves. This is not 

sufficient to rebut Mr. Patel’s argument, including the legal authority supporting his position, that 

the loss guidelines are too harsh as applied to his case.

IV.

MR. PATEL’S GAMBLING LOSSES WITH D.L.’S MONEY ARE IRRELEVANT.

The government cites additional facts regarding Mr. Patel’s gambling losses of D.L.’s 

money. See Response at p. 6:19-28. These facts are entirely irrelevant to the sentencing 

determination, other than to underscore Mr. Patel’s serious gambling addiction at the time of the 

offense. 

Dated: October 15, 2017 Respectfully submitted,

_______/s/____________________

SETH P. CHAZIN

Attorney for Defendant MERUDH PATEL

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