IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 11–cr–000335-001-MSK

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. WAUNITA WEINGART,

Defendant.

DEFENDANT WAUNITA WEINGART’S OBJECTIONS TO PRESENTENCE 

INVESTIGATION REPORT

Pursuant to Fed. R. Crim. P. 32(f), Waunita Weingart, through counsel, hereby 

files this Objection to the Presentence Investigation Report (“PSIR”). (Doc. 281).

CORRECTIONS

In the section entitled “PART F. FACTORS THAT MAY WARRANT A NONGUIDELINE SENTENCE,” paragraph 124, Ms. Weingart is said “[a]t one point during 

the scheme” to have “owned a small jet...” (Doc. 281 p. 26). In fact, Ms. Weingart did 

not own a jet. She did, however, lease a jet at one point.

OBJECTIONS

There is No Evidence to Support the Specific Offense Characteristic in the PSIR 

that the Defendant Derived More than $1,000,000 in Gross Receipts

In calculating offense specific level contributions, the PSIR sets forth a two-level 

enhancement alleging:

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49. Specific Offense Characteristics: Pursuant to 

USSG §2B1.1(b)(15)(a), if the defendant derived 

more than $1,000,000 in gross receipts from one or 

more financial institutions as a result of the instant 

offense, increase by 2 levels. The defendant received 

more than $1,000,000 as a result of her involvement 

in the instant offense; therefore, the offense level is 

increased by 2.

(Doc. 281 p. 16).

However, to date, neither the government’s investigation nor the facts before this 

Court support a finding that Ms. Weingart received more than $1,000,000 as a result of 

her involvement in the instant offense. There is insufficient information to determine 

whether an excess of $1,000,000 was obtained by Ms. Weingart individually, or whether 

any gross receipts exceeding $1,000,000 were obtained instead by the co-defendants

individually or jointly with Ms. Weingart in this case. 

Comment no. 11 to USSG §2B1.1 clarifies that the enhancement for deriving 

more than $1,000,000 in gross receipts from a financial institution applies “if the gross 

receipts to the defendant individually, rather than to all participants, exceeded 

$1,000,000.” (emphasis added). This enhancement does not apply if the gross receipts 

exceeding $1,000,000 were obtained jointly by multiple defendants or individually by 

other co-defendants. United States v. Weidner, 437 F.3d 1023, 1045-46 (10th Cir. 

2006) (citing Comment number 9 to USSG §2B1.1 (now located at Comment number 

11), and concluding that the district court erred in attributing an excess of $1,000,000 in 

gross receipts to both defendants where one defendant received a $1.5 million increase 

in his line of credit before the funds were transferred to the other defendant’s real estate 

investment); United States v. Colton, 231 F.3d 890, 911-12 (4th Cir. 2000) (finding that 

the government failed to demonstrate that the defendant derived more than $1,000,000 

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in gross receipts from the offense where he and his co-defendant each individually 

received $300,000 and the remaining $1.5 million went to a corporation of which the 

defendant only owned a fifty-percent interest; the court concluded that nothing in the 

record indicated that the defendant could unilaterally use the additional funds in the 

corporation or that he individually benefited by more than the $300,000 he received); 

USSG §2B1.1 cmt n. 11.

Here, there is insufficient evidence to support a finding that Ms. Weingart 

individually, rather than jointly with or separately from her co-defendants, derived more 

than $1,000,000 in gross receipts from one or more financial institutions as a result of 

the instant offense. Neither the government’s investigation, nor the facts before this 

Court provide sufficient evidence by which to make such a finding.

WHEREFORE, Defendant respectfully objects to the PSIR’s conclusion that “[t]he 

defendant received more than $1,000,000 as a result of her involvement in the instant 

offense...” (Doc. 281 ¶ 49) and requests this Court find that there is insufficient evidence 

to so conclude.

Respectfully submitted,

Dated: May 30, 2013 By: s/Martin Stuart_____ 

MARTIN STUART, counsel for Ms. 

Weingart

 PortmanStuart, LLC

955 Bannock Street, suite 200

 Denver, CO 80204

 Phone 303-355-6789

 Fax 303-623-0714

Case No. 1:11-cr-00355-MSK Document 287 filed 05/30/13 USDC Colorado pg 3 of 4
CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of May 2013, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following e-mail addresses: 

Linda Kaufman

Assistant United States Attorney

1225 17th St., Ste. 700

Denver, CO 80202

Linda.kaufman@usdoj.gov

William Taylor

Darlene Bagley

Attorneys or John Gallegos

303 16th Street, #200

Denver, CO 80202

wltaylorpc@gmail.com

Paula Ray

Attorney for Alois Craig Weingart

1801 Broadway, suite 1100

Denver, CO 80202

paulamray@earthlink.net

/s/ Martin Stuart________

Martin Stuart

Case No. 1:11-cr-00355-MSK Document 287 filed 05/30/13 USDC Colorado pg 4 of 4