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Jasper Knabb Files Brief of Appeal on December

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PhillyPA65   Wednesday, 01/02/13 06:44:04 PM
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Jasper Knabb Files Brief of Appeal on December 28, 2012

Under the 2011 Guidelines, an offense level of 34 and Mr. Knabb’s criminal history category of I results in a guideline range of 151 to 188 months.

The imposed sentence of 253 months thus represented an upward variance from the Guideline sentence. The sentencing court thus made three determinations that increased Mr. Knabb’s sentence that were not agreed to in the plea agreement: (1) a four-level upward adjustment under USSG §28 1.1 (b )(18)(A) for his status as a corporate officer; (2) a role adjustment for his status as a leader or organizer; and (3) an upward variance.

A. USSG §28 1.1 (b)(18)(A)

In his briefing below, Knabb objected to the USSG §28 1.1 (b )(18)(A) enhancement solely based on the claimed disparity between his sentence and that of his codefendant Durland, who was CFO of Pegasus but did not receive the enhancement. (Excerpts of Record, Vol. II, pp. 121-122.) The court noted in sentencing Mr. Knabb that Durland had had a subordinate role to Knabb and that Durland had only netted $2.9 million from the scheme, versus the tens of millions Knabb had received. (Sentencing Hearing, Excerpts of Record, Vol. I, pp. 3-4.) Where coconspirators are not similarly situated, disparity between their sentences does not general make a sentence substantively unreasonable. United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009).

B. Leader or Organizer

Knabb objected to his four-point role adjustment under USSG §3B1.1(a) based inter alia on the fact that many of the “participants” in his scheme were unwitting. He asserted only Durland was a witting accomplice. The court specifically found that it could not determine by a preponderance of the evidence whether other participants in the scheme were aware of its illegality. (Sentencing Hearing, Excerpts of Record Vol. III, at p.81 (“Whether they were unwitting or not I don't know.”).) A criminal scheme can be “otherwise extensive” based on the number of unwitting participants as well as well as knowing accomplices. United States v. Booth, 309 F.3d 566, 576-577 (9th Cir. 2002).

C. Upward Variance

The district court gave Knabb a sentence that was 65 months above the Guidelines range, citing the repeated nature of Knabb’s criminal actions, investors who had lost significant money when Pegasus’s stock price plummeted that were not accounted for in the Guidelines calculation, a finding that Knabb had not been candid with the probation officer, and a long history of violations and misdemeanors which did not show “respect for the law”. (Sentencing Hearing, Excerpts of Record, Vol. I, pp. 1-7.)

CONCLUSION

For the foregoing reasons, appellate counsel respectfully requests that this Court grant her motion to be relieved and independently review the record in this case.

Download the 22 page document here: http://www.4shared.com/office/e2lpOw65/20121228_Brief_of_Appellant_Ja.html

Shareholder Evidence Database: http://PegasusEvidence.4shared.com


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