Swayze Plea Deal

D-I .10- C-r- -2-O745 LPZ- MAR ECF No.18 filed 05/24/11 PagelD. 29 Page -20" UNITED STATES DISTRICT COURT OFFICE EASTERN DISTRICT OF MICHIGAN E-A- STRICT coum' SOUTHERN DIVISION STERN UNITED STATES OF AMERICA, CRIM. NO. 10-CR-20745 Plaintiff, HON. LAWRENCE P. ZATKOFF 18U. S. C. ?666(a)(1i)(A)I- . Theft Concerning Programs Receiving - Federal Funds ALLEN SWAYZE . . - MAXIMUM PENALTY: 10 years Defendant. - imprisonment . . MAXIMUM FINE: $250,000 RULE ll PLEA AGREEMENT Pursuant to Rule 11 Of the Federal Rules Of Criminal Procedure, defendant. ALLEN SWAYZE and the government agree as follows: 1. GUILTY PLEA A. Count .of Conviction Defendant will enter a plea Of guilty tO Count 1 Of the IndiCtrnent, which Charges? theft cOncerning programs receiving federal funds, in Violation Of 18 666. B. Elements of Offense . The elements Of Count 1 are: 1) defendant was an agent of a state, localor tribal government, or an agency Of a state, local. or tribal government that received federal ECF No. 18 filed 05/24/11 PageID.30 Page 2 of 15 assistancein excess of 1 0,000 in a one-year period within twelve months before or . I after the commission of the offense; 2) the federal assistance was under a federal program involving a grant, contract, subsidy, loan, guarantee, insurance or other. form of federal assistance; 3) defendant embezzled, stole, obtained by fraud, or otherwise withoutauthority knowingly converted to the use of any person other than the rightful . owner, or intentionally misapplied, property that is Valued at $5,000 or more, and; 4) the pr0perty was owned by, orwas under the custody or control of, such organization, government, or agency. (1. i I Factual Basis for Guilty Plea, The following facts are a suf?cient and accurate basis for defendant?s guilty plea: Beginning in about August, 2006' and continuing until approximately May, 2009, in . the Eastern District of Michigan, Southern Division, defendant ALLEN SWAYZE, while employed at the Breithaupt Career and Technical Center, a Detroit Public School, as a bookkeeper, whose duties included oversight and maintenance. Of accounts, preparation of checks, handling of funds and other bookkeeping duties, I issued fraudulent and unauthorized checks in the amount of $148,772.86 drawn on bank accounts of .Breithaupt Career and Technical Center to himself and to his company Swayz?e Management Industries. SWAYZE then deposited those checks I in bank accountsin his name and the name of Swayze Management Industriesand/or -2- . ECF NO. 1.8 filed 05/24/11 PagelD.31 Page 3 Of 15 cashed them at one Of the three banks where his bank accounts were located. The I $148, 772.86 Stolen by SWAYZE from the Breithaupt Career and Technical Center bank accounts was owned by the Detroit Public Schools (DPS). '7 During each calendar year from 2006 through 2009, SWAYZE received more than I I $5 000 1n stolen DPS funds. During each of the calendar years from 2006 through 2009 the Detroit Public Schools received 1n excess of $10, 000 per year in federal funding. SENTENCING GUIDELINES . A. Standard of Proof The Court will ?nd sentencing factors by a preponderance of the evidence. Ag: reed Guideline-Range There are no sentencing guideline disputes. Except as provided below, defendant 3 -. guideline range is 12- 18 months, as set forth on the attached wOrksheets. If the Court I ?nds: I that defendant? 3 criminal history category is higher than refleCted on the attached Worksheets, or, I b) . that the offense level should be higher-because, after pleading guilty, defendant made any false statement to, or withheld information-from,- his probation officer; otherwiSe demonstrated a lack 0f acceptance of -3- ECF No. 18 filed 05/24/11 PageID.32 Page 4 of 15 responsibility for his offense(s); or obstructedjustice. or committed any crime, and if any such ?nding results in a guideline range higher than 12-18. months, the higher guideline range becomes the agreed range. However, if the Court ?nds that defendant is a career offender, an armed career criminal, or a repeat and dangerous sex offender as de?ned under the sentencing guidelines or other federal law, and that ?nding is not already re?ected in the attached Worksheets, this paragraph does not authorize a 'correSponding increase in the agreed range. Neither party may take a position concerning the applicable guidelines that is different than any position of that party as re?ected in the attached worksheets, except as-necesSary to the Court?s determinatiOn regarding-subsections a) and above. 3.7 SENTENCE - I The Court Will impose a sentence pursuant to 18 U.S.C. ?3553, and indoing 30 must consider "the sentencing guideline range. I A. Imprisonment 7. Pursuant to Federal Rule of Criminal Procedure the sentence of imprisonment in this case may not exceed the'tOp of the sentencing guideline range, as determined by Paragraph 12B. ECF No. 18 filed 05/24/11 PagelD.33 Page 5 of 15 B. Sup-I ervised Release A term. of supervised release follows the term of imprisonment. The Court must impose a termof supervised release on Count 1 of no less than-one but no more than ?ve years . The agreement concerning imprisonment described above in Paragraph 3A does not apply to any term of imprisonment that results from any later revocation of supervised release. C. Special Assessment Defendant 'will pay a special assessment of $100 and must provide the goVernment with areceipt for the payment before sentence is imposed. D. ?ag The. Court may impose a ?ne on each count of convictionin any amount up. to $30,000. I E. Restitution The Court shall orderrestitution to every identifiable victim of defendant?s - The victim, and the full amount of restitution in this case, are as follows: Detroit Public Schools - $148,772.86. . USE OF WITHDRAWN GUILTY PLEA If the Court allows defendant to withdraw his guilty plea for a ?fair and just -5- ECF No.18 filed 05/24/11 PageID.34 Page 6 of 15 reason? pursuant to Fed. R. Crim. P. ?1 defendant waives his rights under Fed. - Evid. 410, and the government may use his guilty plea, any statement made under oath at the changeI-lof-plea hearing, and the factual basis statement in this plea agreement, against-him in any proceeding. I 5. OTHER CHARGES I If the Court accepts-this agreement, the government Will dismiss all remaining charges in this case. 6. EACH RIGHT To WITHDRAW FROM The government may withdraw from this agreement if the Court ?nds the correct . guideline range to be different than is determined by Paragraph ZB. Defendant may withdraw from this agreement; and may Withdraw his guilty plea; i if the Court decides to imposeasentence higher than the maximum allowed by Part 3. This is the only reason for which'defendant may withdraw from this agreement. The Court Shall advise defendant that if he does not withdraw his guilty pleaunder this I circumstance; the. Court may impose a sentence greater than the maximum allowed. by Part 3. I I- 7. WAIVER OF APPEAL Defendant Waives any right he may have to appeal his conviction. If the sentence imposed does not eXceed the maximum allowed by Part 3 of this agreement, defendant ECF No; 18 filed 05/24/11 PageID.35 Page7of 15 also waives any right he may have to appeal his sentence. If the Sentence imposed is within the guideline range determined by Paragraph 2B, the gOvernment agrees not to appeal the sentence, but retains its right to appeal any sentence below that range I . 8. CONSEQUENCES OF WITHDRAWAL OF GUILTY PLEA OR VACATION OF CONVICTION I If defendant is allowed to withdraw-his guilty plea or if any conviction entered pursuant to this agreement is vacated, the Court shall, on the government?s request, reinstate any charges that were dismissed as part of this agreement. If additional-charges are filed against defendant within six months after the date the order vacating defendant's cOnviction or allowing'him to Withdraw his guilty plea becomes ?nal, which charges relate directly or indirectly to the conduct underlying'the guilty plea or to any conduct re?ected in the attached worksheets, defendant Waives his right to challenge the additional charges ?on the ground that they were not ?led in a timely manner, including any. claim that they were ?led after the limitations period expired. PARTIES T0 PLEA AGREEMENT I Unless otherwise indicated, this agreement does not bind any government agency except the'United States Attorney?s Office for the Eastern District of Michigan. ECF NO. 18 filed 05/24/11 PagelD.36_ Page 8 Of 15 10. SCOPE OF PLEA AGREEMENT I This agreement, which includes all documents that it explicitly incorporates, is the complete agreement between the parties. This agreement supersedes'all other promises, representations, understandings and agreements between the parties concerning the . subjeCt matter Of this plea agreement that were made at anytime before the guilty plea is I entered in court. Thus, no oral or written promises made by the government to defendant or to the attorney for the defendant at any time before defendant pleads guilty are binding except to the eXtent they have been explicitly incorporated into this agreement. Notwithstanding the previous paragraph, if defendant has entered into a proffer agreement in writing or a cooperation agreement in writing with the government, this plea- agreement dees not supersede or abrogate the terms of any such prior Written agreement. This agreement also does not prevent any civil or administrative actions against defendant, or any forfeiture claim against any property, by the United States or any other party. ECF No. 18 filed 05/24/11 . Pagel'D.37 Page 9 of 15 11. ACCEPTANCE OF AGREEMENT BY DEFENDANT This-plea Offer expires unless it has been received, fully signed, in the Of?ce of the United States Attorney by 5:00 011 May 19, 2011. The government reserves the right to modify orrevoke this Offer at any time before defendant pleads guilty. BARBARA L. MCQUADE United States Attorney PAMELA THOMPSON ASSISTANT UNITED STATES ATTORNEY ASSISTANT UNITED STATES ATTORNEY DATE: BY SIGNING BELOW, DEFENDANT ACKNOWLEDGES THAT HE HAS READ (OR BEEN READ) THIS ENTIRE DOCUMENT, UNDERSTANDS IT, AND AGREES TO ITS TERMS. HE ALSO ACKNOWLEDGES THAT HE IS SATISFIED WITH HIS ATTORNEY ADVICE AND I REPRESENTATION. DEFENDANT AGREES THAT HE HAS HAD A FULL AND COMPLETE OPPORTUNITY TO CONFER WITH HIS LAWYER, AND HAS HAD ALL OF HIS QUESTIONS ANSWERED BY HIS LAWYER RITA CHASTANG . - . . ALLEN ATTORNEY FOR DEFENDANT . DEFENDANT . . gal 5? DATE: 5" 5 ECF No. 18 filed 05/24/11 PagelD.38 Page 10 of 15 endant: Allen Swayze Count: 1 Docket No.: - 'Statute(s): 18 U.S.C. 666(a)(1)(A) WORKSHEET A Offense Levels Complete one Worksheet A for each count of conviction (taking into account relevant conduct and treating each stipulated offense as a separate count of conviction) before applying the multiple-countrules in U.S.S.G. ch. 3, pt. D. However, in any case involving multiple counts of conviction, if the counts of conviction are all ?closely related? to each other within the meaning of U.S.S.G. complete only a single Worksheet A. 1. BASE OFFENSE LEVEL AND SPECIFIC OFFENSE CHARACTERISTICS (U.S.S.G. ch. 2) Guideline Section Description - Levels . - II Base level . . 6 Loss more than $120,000 2. ADJUSTMENTS (U.S.S.G. ch. 3, pts. A, B, C) Guideline Section Description I Levels 3. ADJUSTED OFFENSE LEVEL Enter the sum of the offense levels entered in Items 1 and 2. If this Worksheet A does not cover every caunt of conviction (taking into account relevant conduct and treating each stipulated offense as a Separate count of conviction), complete one or more additional Worksheets A and a single Worksheet B. If this is the only Worksheet A, check this box and skip Worksheet B. ii If the de?atidaht has no criminal history, check this box and skip Worksheet C. - -. - Rev. 8/20l0 ECF No.6.(g3unttiled 05/??1/11 lPageID.39 Page 11 Of 15 ocketNOJl - . saunas); ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITY (U.S.S.G 3E1.1) . . 7 a3 WORKSHEET (Guideline Range) (COMBINED) ADJUSTED OFFENSE LEVEL Enter the adjusted offense level entered in Item 3 of Worksheet A or the combined adjusted offense level entered in Item 8 of Worksheet B. TOTAL OFFENSE LEVEL Enter the difference. between Items 1 and 2. CRIMINAL HISTORY CATEGORY Enter if the defendant has no criminal history. Otherwise, enter the criminal history category entered in Item 6 of Worksheet C. . CAREER CAREER SEX OFFENDER (U.S.S.G. ch. 4, pt. B) a. Total Offense Levei: If the career offender provision (U.S.S.G. 431. the criminal livelihood provision (U.S.S.G. 431.3), the armed career criminal provision (U.S.S.G. 431.4), or the dangerous sex offender provision (U.S.S.G. 481.5) results in a total offense level higher than the total offense level entered in Item 3, enter the higher offense level total. b. Criminal Histog Category: If the career offender provision (U.S.S.G. 481.1), the armed career criminal provision (U.S.S.G. 431.4), or the dangerous sex offender provision (U.S.S.G. 4B1 .5) results in a . 7 . . criminal history category higher than the criminal history category entered in Item 4, enter the higher criminal history categOry. . . GUIDELINE RANGE FROM SENTENCING TABLE (U.S.S.G. ch. 5, pt. A) Enter the guideline range in the Sentencing Table (see U.S.S.G. ch. 5, pt. A) prodaced by the total offense level entered in Item 3 or 5.a and the criminal history category entered in Item 4 or 5;b. STATUTORY RESTRICTIONS ON OR SUPERSESSION 0F GUIDELINE RANGE. If the maximum sentence authorized by statute is below, or a minimum sentence required by statute is above, the guideline range entered months in Item 6, enter either the guideline range as restricted by statute or the sentence required by statute. (See 5G1.I.) If the sentence on any count of conviction is required by statute to be consecutive to the sentence on any other'count- of conviction, explain why. Rev. 8/2010 :1Oegfrg10g??g?ePZ-MAR ECF No.6.?3untiiled 05/24/11 Page 12 of 15 ocket No.1 - loan-20745 - Statute(s): 18 WORKSHEET (Authorized Guideline Sentences) l. PROBATION (U. S. S..G ch. 5, pt. B) a. Imposition of a Term of Probation (U.S.S.G. 581.1) 1. PrObation IS not authorized by the guidelines (minimum of guideline range 6 months or statute of conviction is a Class A or a Class felony). If this box is checked, go to Item 2 (Split Sentence). 2. Probation is authorized by the guidelines (minimum of guideline range zero months). ProbatiOn lS authorized by the guidelines, provided the court imposes a condition or combination of conditions requiring intermittent con?nement, community conw?nement or home detention satisfying the minimum of the guideline range (minimum of guideline range 0 months but 6 months). b. Length of Term of Probation (U. S. 531.2) 1. At least 1 year but not more than 5 years (total offense level 2 6). . 2. No more than 3 years (total offense level 6). Conditions of Probation msse. 531.3) The court must impose certain conditions of probation and may impose other conditions of probation. 2. a. . A split Sentence is not authorized (minimum of guideline range 0 months or 10 months). 7 . b. A split sentence is authorized (minimum of guideline range 0 months but 10 months). The court may impose a sentence of imprisonment that includes a term Of supervised release with a condition . that substitutes community con?nement or home detention for imprisonment, provided that at least one-half of the minimum of the guideline range is satisfied by imprisonment (if the minimum cf the guideline range is 8,9, or 10 months), or that at least one month is satis?ed by imprisonment (if the minimum of the gUideline range months). The authorized length of the term of supervised release 15 set forth below 1n Item 4. b. - - 3. I IMPRISONMENT (term of imprisonment is authorized by the guidelines if it is within the applicable guideline range- (entered 1n Item 6 of Worksheet D). (See U. S. G. 5C1.1.) Rev. 78/2010 ECF No.6qutfiled 05/g4/11 PagelD.41 Page 13 of 15 ocket No.: 4. a. recs?20745 18U.S.C. 666(a)(1)(A) SUPERVISE-D RELEASE (U.S.S.Imposition ofa Term of- Supervised Release (U.S.S.G. SDI .1) . The court must impose a term of supervised release it 1t imposes a term of Imprisonment of more than one year, or if it is required to do so by statute. The court may impose a term of supervised reiease if it imposes a term of imprisonment of one year or less. . Lengt- of Term of-Supervised Release (U.S.S.G. 5111.2) At least 3 years but not more than 5 years, where the count of conviction is a Class A or a Class felony, 1. an offense carrying a maximum term of unprisonment 2 25 years. At least 2 years but not more than 3 years, where the count of conviction is a Class or a Class felony, an offense carrying a maximum term of irnprisonment 5- years but 25 years. 1 year, Where the count of conviction is a Class felony or a Class A misdemeanor, i. an offense carrying a maximum term of 1mprisonrnent 6 months but 5 years. The statute of conviction requires a minimum term of supervised release of months. ConditionsofSupervised Release (U.S.s.o.?so1.3) The court must impose certain conditionsof supervisedrelease and may impose other conditions of supervised release. A RESTITUTI-ON (U.S.S.G. ?5Enl.1) The court must order full restitution to the victim(s) of the offense(s) of conviction. (See 18 U.S.C. 3556, 3663A, 3664.). The court will determine who-the victims are and their restitution ampunts. The court must order full restitution to the victim(s) of the offense(s) of conviction. (See 18 U.S.C. 3556, 3663A, 3664) The parties agree that full restitution is 148, 772. 86 . The parties agree that the court may order restitution to the victi1n(s) Of the offense(s) of conviction in any amount up to and .(See 18 U. S. 3663(a)(3), 3664. The parties agree that the court may also order restitution to persons other than the victim(s) of the o'ffense(s) of conviction in any amount up to and including L. (See 18 U.S.C. 3663A(a)(3), 3664.) Restitution is not applicable. Rev. 8/2010 ECF No. 18 filed 05/24/11 PageID.42 Page 14 of 15 dant: Allen'Swayze . Count: I 1 I Docket No.: . Statute(s): - . - (WORKSHEET E, p. 3) 6. FINE SE1.2) - . a. I Fines for Individual Defendants The court must impose a ?ne unless ?the defendant establishes that he [or she] 1s unable to pay and 18 not likely to . . become able to pay any ?ne. (See U. S. S. G. SE1 Generally, the fine authorized by the guidelines 15 limited to the range established 1n the Fine Table. (See U. S. S. G. 5E1 I) However, there are exceptions to this general rule. (See U. S. S. G. 5E1 Fine Range from Fine Table (U. S. S. G. I Minimum Fine Maximum Fine :1 I 7. SPECIAL 5E1.3) The court must impose a special assessment on every count Of conviction The special assessments for individual defendants are - $100.00 for every count charging a felony ($400 for a corporation) 25.00 for every count charging a Class A misdemeanor ($125 for a Corporation), . 10.00 for every count charging a Class misdemeanor ($50 for a corporation), and 5.00 for every count charging a Class misdemeanor or an infraction ($25 for a corporation). The defendant must pay a special assessment or special assessments in the total amount of $100. 00 8. FIORFEITURE (U.S.S.G. 5El.4) I Assets of the defendant will not be forfeited. Assets of the defendant will be forfeited. 9. ADDITIONAL APPLICABLE GUIDELINES, POLICY STATEMENTS, AND STATUTES List any additional applicable guideline, policy statement, or statute. 10. DOWNWARD DEPARTURE (U.S.S.G. ch. 5, pts..H K) LiSt any applicable aggravating or mitigating circumstance that might support a term of imprisonment above or below the applicable guideline range. . . Rev. 8/2010 .ECF NOI. 18 Wed 05/24/11 PagelD.43 Page 15 Of 15 'dant: . 'Allen Swayze Count: 17 7 I Docket No.5 . Statute(s): Rev. 8/2010