1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Criminal Action No. 11-cr-00355-MSK 

UNITED STATES OF AMERICA, 

 Plaintiff, 

vs. 

ALOIS CRAIG WEINGART, 

 Defendant. 

_______________________________________________________________ 

REPORTER'S TRANSCRIPT

(Sentencing Hearing: Order) 

_______________________________________________________________ 

Proceedings before the HONORABLE MARCIA S. KRIEGER,

Judge, United States District Court for the District of 

Colorado, commencing at 10:02 a.m., on the 29th day of October, 

2013, in Courtroom 901A, United States Courthouse, Denver, 

Colorado. 

APPEARANCES

LINDA KAUFMAN and MARTHA PALUCH, Assistant U.S. 

Attorneys, 1225 17th Street, Suite 700, Denver, Colorado, 

80202, appearing for the Government. 

PAULA RAY, Attorney at Law, P.O. Box 12554, Denver,

Colorado, 80212-0554, appearing for the Defendant. 

THERESE LINDBLOM, Official Reporter 

901 19th Street, Denver, Colorado 80294 

Proceedings Reported by Mechanical Stenography 

Transcription Produced via Computer 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 1 of 11
 2

(The following proceedings were had and entered of

record after the Court heard the arguments of counsel and

statement of defendant:)

THE COURT: Thank you.

Then I'll announce the sentence I intend to impose.

Of course, counsel, you'll have a final opportunity to make

legal objections before judgment is entered. If you believe

that the sentence I describe is premised upon error or it

differs from what has been argued and I raise an issue you

haven't had adequate opportunity to consider, then I invite you

to request a continuance.

Imposition of a sentence in a federal criminal case is

governed by a number of statutes. The umbrella statute is 18

U.S.C. Section 3553. In imposing sentence in this case, the

Court has considered the objectives and factors that are set

forth in that statute. I'm required to impose a sentence that

is sufficient but not greater than necessary to satisfy

particular objectives. The sentence must reflect the

seriousness of the offense; promote respect for the law;

provide just punishment; adequately deter criminal conduct,

protect the public from further crimes by the defendant; and

provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the

most effective manner.

To fashion a sentence that meets these objectives, the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 2 of 11
 3

statute directs me to consider a number of factors. The nature

and circumstances of the offense; the history and

characteristics of the defendant; the kinds of sentences that

are available; the sentence prescribed by the federal

sentencing guidelines; the need to avoid unwarranted sentence

disparities among defendants with similar records found guilty

of similar conduct; and in the appropriate case, such as this,

the need for restitution.

At the beginning of this hearing, I identified a

number of documents that I had studied in preparation for the

hearing, confirmed that, indeed, the parties have had an

opportunity to review those. The Government identified a

document filed late on Friday. I took a recess and reviewed

that and am advised as to the Government's position.

I've inquired as to whether there is any dispute as to

the factual matters reflected in the most recent presentence

report, and the only objection concerned extra language in one

paragraph regarding statements purportedly made by defense

counsel. Apparently these statements have taken on a life of

their own, and I have ordered them stricken from the

presentence report because they don't bear upon sentencing.

They have been of concern to the Government because they're

concerned that they create a conflict of interest, and I have

confirmed that to the extent there is a conflict of interest,

the defendant has waived that conflict and desired his attorney

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 3 of 11
 4

to proceed today with sentencing.

With regard to the calculation under the guidelines,

both parties disagree with the calculation made by the

probation office in the most recent presentence investigation

report. They disagree with the obstruction of justice

enhancement and the reduction from -- I should say, the

exclusion of the reduction for acceptance of responsibility.

We begin -- there really is no per se motion for a

downward departure. Aberrant behavior, as noted by the

Government, is aberrant behavior in the defense conduct, not

aberrant behavior after the plea was taken. But I understand

the defendant's argument to be that the failure to appear at

the original sentencing hearing was aberrant in the sense that

it was not consistent with prior behavior and that the

defendant argues that that should not be taken into account

with regard to imposition of sentence.

We begin with the calculation under the guidelines.

The most recent presentence report is dated October 18, 2013,

and it is the presentence report that includes an adjustment

for obstruction of justice and an -- the removal of an

adjustment for acceptance of responsibility. Both of these are

premised upon the fact that Mr. Weingart did not appear at the

time of his sentencing, he violated the terms and conditions of

his presentence release, he fled to California and had to be

arrested and brought back here to Denver for purposes of

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 4 of 11
 5

sentencing.

In some circumstances, there may be an adjustment for

obstruction of justice and removal of adjustment for acceptance

of responsibility under the guidelines. I do not find them

warranted here in light of the fact that he is here before the

Court for purposes of sentencing at this time. His flight can

be taken into account in the imposition of sentence, and the

removal of the acceptance of responsibility and the application

of an enhancement for obstruction of justice overstates the

seriousness of the behavior that purportedly is being

addressed. That's reflected by the Government's position and

the defense position, in agreement, that the obstruction of

justice enhancement and the removal of the adjustment for

acceptance of responsibility not be applied as recommended in

the most recent presentence report.

The prior presentence report, I think, adequately and

properly calculates the recommended sentence under the

guidelines. It's found at Docket No. 297. And the calculation

is as follows:

The Base Offense Level for violation of 18 U.S.C.

Section 1041 is found at Section 2B1.1. It's set at 7. The

specific offense characteristics are related to the amount of

loss in accordance with Section 2B1.1. Here, the loss exceeded

400,000; and as a consequence, there is a 14-level increase.

That results in an adjusted offense level of 21. Then there is

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 5 of 11
 6

a downward adjustment for acceptance of responsibility of three

levels, resulting in a Total Offense Level of 18.

The defendant has no criminal history points, no prior

convictions, and as a consequence, he falls into Criminal

History Category I. With an offense level of 18 and a Criminal

History Category of I, the guidelines recommend a custodial

term of 27 to 33 months, supervised release of 2 to 5 years, a

fine of 6,000 to a million dollars, and a special assessment of

$100 because there was one count of conviction. In addition,

the parties agree to a restitution amount of $447,748.37 to be

jointly and severally payable by Ms. Weingart and by the

defendant.

I've had an opportunity to consider the extensive

arguments that have been submitted in writing, multiple

responses to the presentence report, multiple responses to the

responses to the presentence report, and it's safe to say that

all of those arguments have been repeated today in open court.

Before me is a man who has benefited from a course of illegal

conduct that was initiated and controlled, probably created, by

his wife. He's pled to a single count in an Information of

making a false statement to a lending institution. There is no

suggestion that he was coerced, that he was deceived, that he

didn't know what he was doing; and the fact that he fled and

did not appear at the time of his sentencing confirms that.

Mr. Weingart is not a victim. He doesn't see himself

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 6 of 11
 7

as a victim. And as to this count, I believe he is as culpable

as anyone else engaged in similar conduct. I see no reason to

impose a downward variance. The fact that he didn't appear at

the prior sentencing hearing bumps him in my mind from the

bottom end of the guideline range, because it indicates that

when faced with responsibility, he doesn't exercise it. And

that bears upon a -- the importance of respect for the law and

a need to protect the public from further crimes by the

defendant. The offense was serious, and just punishment in my

view is a guideline sentence.

I intend to impose a guideline sentence of 30 months

of incarceration to be followed by 3 years of supervised

release. I see no reason for 5 years. I find that the

defendant lacks the ability to pay a fine, and that given the

significance of the amount of restitution, it would impair his

ability to pay a fine, and, therefore, I do not intend to

impose one.

I intend to impose a special assessment of $100, which

is required by statute, and to order that the defendant pay

restitution in the agreed amount. And for the same reason that

I'm not imposing a fine, I do not intend to impose interest on

the restitution amount.

Because there is a restitution amount, I intend to

impose special conditions of supervision that are designed to

assist in the defendant applying as much of his

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 7 of 11
 8

post-incarceration earnings as practicable to the restitution

sum.

Any need for clarification, further explanation,

objection or request for a continuance?

MS. PALUCH: No, Your Honor.

MS. RAY: No, Your Honor.

THE COURT: Then I find that the sentence that I have

just described is the sentence that conforms with 18 U.S.C.

Section 3553, it is sufficient but not greater than necessary

to satisfy the sentencing objectives. Pursuant to the

Sentencing Reform Act of 1984, it is the judgment of the Court

that the defendant, Alois Craig Weingart, be committed to the

custody of the Bureau of Prisons to be imprisoned for a term of

30 months.

Upon release from imprisonment, he'll be placed on

supervised release for a term of 3 years. Within 72 hours of

release from the custody of the Bureau of Prisons, he'll report

in person to the probation office in the district to which he

is released. While on supervised release, he will not commit

another federal, state, or local crime; he'll not possess a

firearm as defined in 18 U.S.C. Section 921; he'll comply with

the standard conditions that have been adopted by the Court. I

waive the mandatory drug testing provisions of 18 U.S.C.

Section 3583(d) because the presentence report does not

indicate a significant risk of future substance abuse. He

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 8 of 11
 9

will, however, cooperate in the collection of DNA as directed

by the probation officer.

And I find that given the restitution sum, that there

are a number of special conditions of supervision which are

reasonably related to the factors enumerated in Section 3553(a)

and 3583(d).

Within 60 days of release from confinement, the

defendant will meet with the probation officer to develop a

plan for payment of restitution. The plan will be based upon

the defendant's income and expenses. The plan will be

forwarded to the Court for review and approval. This plan will

be reviewed quarterly by the probation officer and the

defendant, and the defendant will submit to the probation

officer any requested information with regard to his income and

his expenses that would bear upon his ability to make payments

under the plan.

He will not incur new credit charges or open

additional lines of credit or obtain loans of any type without

the approval of the probation officer, and such approval will

not be given so long as he is not in compliance with the

periodic payment schedule. He will apply any moneys he

receives from income tax refunds, lottery winnings,

inheritances, judgments, and any anticipated or unexpected

financial gains to the restitution obligation. The restitution

obligation is $447,748.37. It will not bear interest.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 9 of 11
 10

Payments will be made to the registry of the court and

disbursed to Bank of America when the account balance reaches

$1,000. The address for disbursal is reflected in the

presentence report. The restitution obligation will be joint

and several with Waunita Weingart. No fine is imposed for the

reasons specified. There is, however, a special assessment of

$100 that is mandated by statute; and that obligation is due

and payable immediately.

Mr. Weingart, I advise you that if you have a right

remaining under the terms of your plea agreement to appeal your

sentence, you must exercise that right within 14 days. You do

so by filing a notice of appeal. Now, ordinarily, Ms. Ray

would file that notice of appeal for you. But if for some

reason she's unable or unwilling to do so, you may request and

I'll direct the Clerk of Court to file a notice of appeal on

your behalf. If no notice of appeal is filed within the 14-day

period, you will have waived your right to appeal.

Is there any further business to bring before the

Court?

MS. PALUCH: Not for the Government, Your Honor.

Thank you.

MS. RAY: Nothing from the defense, Your Honor.

THE COURT: All right. Thank you.

Thank you to our government attorneys, to Ms. Paluch

and Ms. Kaufman, and to Ms. Ray, to our probation officers, our

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 10 of 11
 11

court staff, and our marshal staff. Mr. Weingart will be

remanded to the care and custody of the United States Marshal

Service, and we'll stand in recess.

(Recess at 10:52 a.m.)

REPORTER'S CERTIFICATE 

 I certify that the foregoing is a correct transcript from 

the record of proceedings in the above-entitled matter. 

 

 Dated at Denver, Colorado, this 30th day of October, 

2013. 

s/Therese Lindblom 

 ______________________________ 

 Therese Lindblom,CSR,RMR,CRR 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case No. 1:11-cr-00355-MSK Document 355-1 filed 11/08/13 USDC Colorado pg 11 of 11