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`Case 1:05-cr-00782-GBD Document 159 Filed 07/30/24 Page 1 of 5
`Case 1:05-cr-00782-GBD Document159_
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`en x
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`UNITED STATES OF AMERICA
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`~against-
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`DELMER GOWING,
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`Defendant.
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`ee x
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`GEORGEB. DANIELS, United States District Judge:
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`MEMORANDUM DECISION
`AND ORDER
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`05 Crim. 782-2 (GBD)
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`Defendant Delmer Gowing, proceeding pro se, moves for a sentence reduction pursuantto
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`Amendment 821 of the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2).
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`(Def.’s Mot. for
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`Retroactive Appl. of Amendment 821 (“Def.’s Mot.”), ECF No. 152.) Amendment 821 wentinto
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`effect on November1, 2023, and applies retroactively.! See U.S.S.G. § 1B1.10. As relevant here,
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`Amendment 821 provides an “Adjustment for Certain Zero-Point Offenders” that reduces a
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`defendant’s total offense level by two points if the defendant has no criminal history points, as
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`calculated under § 4A of the Sentencing Guidelines, and if the offense of conviction meets certain
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`criteria, including that “the defendant did not personally cause substantial financial hardship”
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`through the offense.
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`/d. § 4C1.1. Gowingasserts that he qualifies for the adjustment and requests
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`a sentence reduction in accordance with the reduced guideline range. (Def.’s Mot. at 1.) Although
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`Gowingreceived zero criminal history points (Presentence Investigation Report (“PSR”) 4 94), he
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`
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`' «Pursuant to 18 U.S.C. § 3582(c)(2), ....a federal court may reduce a defendant's sentenceif the defendant
`was originally sentenced to a term of imprisonment based on a sentencing range that has subsequently been
`lowered by the Sentencing Commission when that modification is made retroactive.” United States v.
`Elendu, No. 20-CR-179-14 (DLC), 2024 WL 458643, at *2 (S.D.N.Y. Feb. 6, 2024) (citing United States
`v. Martin, 974 F.3d 124, 136, 139 (2d Cir. 2020)).
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`1
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`does not qualify for the adjustment because he personally caused substantial financial hardship.
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`Gowingis therefore ineligible for a sentence reduction pursuant to Amendment 821. Asa result,
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`Gowing’s Motion is DENIED.
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`I. FACTUAL AND PROCEDURAL BACKGROUND
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`In a “long-running and multifaceted advance fee scheme,” Gowing and Co-Defendant Emil
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`Scheringer told victims that large sums of money were delayed under various natural-resource
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`contracts overseas.
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`(Government’s Mem. in Opp’n (“Mem.”), ECF No. 158, at 2.) Gowing and
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`Scheringer asked victims to contribute fundsto pay certain fees, promising that they would receive
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`substantial returns on their investments once the delayed money wasreleased. (/d.) Gowing was
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`an attorney licensed to practice law in the State of Florida and admittedly used his status as an
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`attorney to persuadevictimsto give moneyto the scheme. (/d. (citation omitted).) In one instance,
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`Gowing convinced a formerclient to contribute $50,000 to the scheme and corresponded with her
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`over the course of several years to assure her she would be paid back.
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`(Mem. at 2; PSR 4 27—
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`36.) According to her victim impact statement, she never recouped the funds and lost $50,000 in
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`savings as a result. (PSR §§ 47, 76.) Another victim was forced to declare bankruptcy. (/d. § 76.)
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`In total, Gowing and Scheringer were responsible for defrauding at least 200 people out of at least
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`$15,634,368.
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`(Ud. §§ 74-76.) Hundreds of thousands of dollars of that money flowed through
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`Gowing’s personal bank accounts.
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`(Mem. at 2; PSR { 13.)
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`Following a jury trial, Gowing was convicted of one count of conspiracy to commit wire
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`fraud in violation of 18 U.S.C. § 1349.
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`(See Am. J., ECF No. 118, at 1.) The jury also returned a
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`special verdict concluding that Gowing continued the offense following his arrest and release on
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`bail, resulting in an additional penalty pursuant to 18 U.S.C. § 3147(1).
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`(Mem. at 1-2; Am. J. at
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`1-2.) On October 6, 2010, this Court sentenced Gowing to a term of 240 months’ imprisonment
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`2
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`on Count One and a consecutive term of 24 months’ imprisonmentfor continuing the offense while
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`released on bail, followed by three years of supervised release. (Am. J. at 2-3.) Gowing was also
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`required to forfeit $9,000,000 and pay a $100 mandatory special assessment.
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`(/d. at 5-6.)
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`Il. LEGAL STANDARD
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`A defendant with zero criminal history points will be eligible for the “Adjustment for
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`Certain Zero-Point Offenders” under Amendment 821 if he meets ten enumerated criteria.
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`U.S.S.G. § 4C1.1. One of these criteria requires that “the defendant did not personally cause
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`substantial financial hardship.” /d. § 4C1.1(a)(6). To determine “whether [a] defendant’s acts or
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`omissionsresulted in ‘substantial financial hardship,’” a court “shall consider, among otherthings,
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`the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to
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`§2B1.1." U.S.S.G. § 4C1.1(b)(3). These factors include whether the offense resulted in the victim:
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`1.
`il.
`ill.
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`iv.
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`V.
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`Vi.
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`becoming insolvent;
`filing for bankruptcy under the Bankruptcy Code(title 11, United States Code);
`suffering substantial loss of a retirement, education, or other savings or investment
`fund;
`making substantial changes to his or her employment, such as postponing his or her
`retirement plans;
`making substantial changesto his or her living arrangements, such as relocating to a
`less expensive home; and
`suffering substantial harm to his or her ability to obtain credit.
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`US.S.G § 2B1.1 n4F.
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`Substantial financial hardship might also be present where the numberofvictimsis high,
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`the amountlostis high, or the victims are particularly vulnerable. See United States v. Pagartanis,
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`No. 18-CR-00374, 2024 WL 2111544, at *2 (E.D.N.Y. May 10, 2024) (finding that “U.S.S.G. §
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`4C1.1(a)(6) is present because [the defendant] personally stole over $13 million from more than a
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`dozen victims .. . through the sale of fraudulent investments and Ponzi scheme-like activity”);
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`United States v. Ortiz, No. 19-CR-161, 2023 WL 1929690, at *5 (E.D.N.Y. Feb. 10, 2023) (finding
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`43
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`that the defendant caused significant financial hardship due to his misappropriation of $224,500);
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`United States v. Bronfman, No. 18-CR-204, 2024 WL 1740484, at *1 (E.D.N.Y. Apr. 23, 2024)
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`(finding that taking advantage of immigration status or financial difficulties might qualify as
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`causing substantial financial hardship).
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`HI. GOWING IS INELIGIBLE FOR THE ADJUSTMENT
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`Gowing usedhis status as an attorney and his personal and client relationships to convince
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`victims to participate in the scheme, ultimately causing them substantial financial hardship.
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`(See
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`supra Section I; Mem. at 2; PSR {§ 12-15, 27-36.) After first convincing victims to invest
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`significant sums of money into the scheme, Gowing kept in personal contact with them and
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`continually assured them over the span of several years that they would soon receive returns on
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`their investments. (See supra Section I; Mem. at 2; PSR 4] 12, 15, 27-36.) Gowing also used his
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`own bank account to facilitate the transfers of funds. See supra Section 1. The loss suffered as a
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`result of these actions was substantial, including a victim losing $50,000 in savings and another
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`victim declaring bankruptcy. See supra Section I; see also U.S.S.G § 2B1.1 n.4Fqi), (it). The
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`total loss amount wasalso high, reachingat least $15,634,368. See supra Section I; see also Ortiz,
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`2023 WL 1929690, at *5. Asa result, this Court finds that Gowing personally caused substantial
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`financial hardship to the victims of his crime. He therefore does not meet the requirements for an
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`offense level reduction under Amendment821 andis noteligible for a sentence reduction.
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`IV. CONCLUSION
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`Defendant Delmer Gowingis ineligible for a sentence reduction under § 4C1.1(a)(6)
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`because he personally caused substantial financial hardship. As a result, Defendant’s Motion for
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`Retroactive Application of Amendment 82] is DENIED. The Clerk of Court is directed to close
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`the open motion at ECF No. 152.
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`DatadJule G24
`New York, New York
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`SO ORDERED.
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`PELo6 L- . Daisy
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`} C
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`a \
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`GEDRGEB. DANIELS
`Umited States District Judge
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