Case 1:15-cr-00580-WFK Document 71 Filed 06/29/17 Page 1 of 11 PageID #: 265
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`UNITED STATES OF AMERICA,
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`-X
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`OMAR CHRISTOPHER MILLER,
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`-X
`WILLIAM F. KUNTZ, II, United States District Judge:
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`Defendant.
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`MEMORANDUM & ORDER
`15-CR-0580 (WFK)
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`On August 26,2016, Omar Christopher Miller ("Defendant") was convicted by a jury of one count
`of visa fraud, in violation of 18 U.S.C. § 1546(a). The Court now sentences him and provides a
`complete statement of reasons pursuant to 18 U.S.C. § 3553(c)(2) of those factors set forth by
`Congress and the President and contained in 18 U.S.C. § 3553(a). For the reasons discussed below.
`Defendant is hereby sentenced to twelve (12) months of incarceration served], 3 years of
`supervised release, and payment of a $100.00 special assessment.
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`BACKGROUND
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`On May 12,2015, the United States filed a Complaint against Defendant, alleging he had
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`knowingly subscribed as true false statements with respect to material facts in an immigration
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`application and knowingly presented £in application containing false statements. See Compl. at
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`1, ECF No. 1. On November 12, 2015, the United States indicted Defendant on one count of
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`visa fraud, in violation of 18 U.S.C. § 1546(a). See Indictment, ECF No. 15. On August 26,
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`2016, after a trial before this Court, a jury found Defendant guilty of the sole count of the
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`Indictment. See Verdict Sheet, ECF No. 63. This Court personally observed the testimony, both
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`oral and documentary, as well as the demeanor of all the witnesses. Those witnesses included
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`Mr. Andrew Daehne, a foreign service office employed by the United States Department of
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`State, Detective Inspector of the Jamaica Constabulary Force who had worked for the JCF for
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`more than twenty-six (26) years at the time of the trial; Mr. Percival Anderson, Deputy
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`Superintendent of the JCF who at the time of the trial had been employed more than twenty nine
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`years and four months; Mr. Derrick Powell, Inspector of The JCF who had been an Inspector
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`with the JCF for more than sixteen years at the time of trial and who had been with the JCF for
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`thirty-five years at the time of trial; Mr. Carmine Borges who served as the Supervisory Customs
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`and Border Protection Officer at the time of the trial; Mr. Eric Klaussmann, Special Agent for the
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`United States Diplomatic Security Service of The State Department of the United States; and
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`Valerie Neita-Robertson, an Attorney licensed to practice in Jamaica called by The Defendant
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`who when asked by this Court at page 347, lines 7 through 19 of the trial transcript the following
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`questions gave the following answers:
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`"The Court: If you are arrested and then you subsequently are acquitted, does that mean
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`you were never arrested?
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`"The Witness: if you - no. If you are arrested and charged.
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`"The Court: Yes.
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`"The Witness: And then you are acquitted."
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`"The Court: Yes."
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`"The Witness: It means you were arrested and charged you went before a court."
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`"The Court: Okay. You can be acquitted, but you still would have been arrested.
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`"The Witness: Technically speaking, yes."
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`This Court entered judgment of guilty on the unanimous jury verdict returned in this case.
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`The Court now sentences the Defendant and sets forth its reasons for Defendant's
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`sentence using the rubric of the § 3553(a) factors pursuant to 18 U.S.C. § 3553(c)(2).
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`L
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` Legal Standard
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`DISCUSSION
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`18 U.S.C. § 3553 outlines the procedures for imposing sentence in a criminal case. If and
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`when a district court chooses to impose a sentence outside of the Sentencing Guidelines range,
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`the court "shall state in open court the reasons for its imposition of the particular sentence, and ..
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`. the specific reason for the imposition of a sentence different from that described" in the
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`Guidelines. 18 U.S.C. § 3553(c)(2). The court must also "state[] with specificity" its reasons for
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`so departing "in a statement of reasons form[.]" Id.
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`"The sentencing court's written statement of reasons shall be a simple, fact-specific
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`statement explaining why the guidelines range did not account for a specific factor or factors
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`under § 3553(a)." United States v. Davis, 08-CR-0332,2010 WL 1221709, at *1 (E.D.N.Y.
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`Mar. 29,2010) (Weinstein, J.). Section 3553(a) provides a set of seven factors for the Court to
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`consider in determining what sentence to impose on a criminal defendant. The Court addresses
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`each in turn.
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`II.
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`Analysis
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`A. The Nature and Circumstances of the Offense and the History and
`Characteristics of the Defendant
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`The first § 3553(a) factor requires the Court to evaluate "the nature and circumstances of
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`the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1).
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`Defendant was bom on August 14,1976, in Kingston, Jamaica, where he resided until
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`2013. See Presentence Investigation Report ("PSR") 27, 29, ECF No. 65. Defendant's
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`parents are in a long-term partnership and, although they never married, continue to reside
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`together and are in good health. Id. ^ 27. Defendant and his five siblings were raised in a
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`middle-income household and provided with basic necessities. Id. ^ 28. In 1992, Defendant
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`graduated from Denham Town High School in Kingston with a high school diploma. Id. H 42.
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`From approximately 1994, when Defendant was eighteen, until 2013, Defendant was employed
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`as a reggae music writer and artist and also worked as a club promoter in Kingston. Id. 1144.
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`In 1996, at the age of nineteen. Defendant was arrested and charged with Shooting with
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`Intent and Illegal Possession of a Firearm and Ammunition by the Jamaican Constabulary Force
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`("JCF") in Kingston. Id. HH 5, 24. He was held in custody for approximately one year while
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`awaiting trial and was released after being acquitted at trial in the Supreme Court of Jamaica in
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`1997. At the age of twenty-five. Defendant began smoking marijuana and used the drug once per
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`day until approximately one year prior to his arrest for the instant offense, /c/. H 41. In 2010,
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`Defendant surrendered to JCF officials after receiving a notice that the police were looking to
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`question him in connection with two shooting incidents in Kingston, which had resulted in the
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`deaths of four people. PSR Hlj 5, 25. He was detained for several weeks. Defendant was
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`ultimately released without being charged with a crime. Id.
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`On February 7, 2013, Defendant entered the United States via John F. Kennedy
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`International Airport in Queens, New York, on an 0-2 visa that had been issued on April 23,
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`2012, by the U.S. Embassy in Kingston.' M H 3. The Embassy had issued the visa so that
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`' An 0-2 visa is a temporary visa for an individual to assist in a specific event or performance by another individual
`who has an extraordinary ability. PSR If 3. In determining whether or not to issue visas, U.S. Department of State
`consular officials must make numerous determinations. Id. One finding the consular officials must make is whether
`the individual seeking the visa intends to use the visa to immigrate to the United States illegally and not for the
`stated purpose. Id. Consular officers must be satisfied that the applicant has overcome a presumption that the visa
`will be used for illegal immigration into the United States before issuing the visa. Id. Consular officials must also
`make determinations about the suitability of visa-seeking individuals, or entry into the United States, insofar as the
`safety and security of the American people and society. Id. In making such evaluations, consular officials examine
`visa applicants' criminal histories, query intelligence databases, and verify information provided by applicants,
`among other things. Id.
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`Defendant and his band could perform a series of concerts in Florida. Id. 4. After his visa
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`expired, Defendant failed to return to Jamaica as he was required to do. Id. Instead, he settled in
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`Philadelphia, Pennsylvania, with Yolanda Miller (nee Carchidi), whom he married in 2014. Id.
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`Tin 4, 29-30. Defendant has six children from five prior relationships. Id. 31, 34-37. Five of
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`Defendant's children reside with their mothers—^four in Jamaica and one New Jersey—^while his
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`youngest son currently resides with Defendant in New Jersey, id. 29, 31, 34-37.
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`On March 15,2015, Defendant submitted a false and misleading application to the U.S.
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`Citizenship and Immigration Services ("USCIS") for permanent residency. In the course of
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`processing Defendant's application, USCIS officials referred the matter to Homeland Security
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`Investigations ("HSI") for further investigation, particularly regarding the legitimacy of
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`Defendant's marriage. Id. During the investigation, HSI special agents discovered that
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`Defendant had made false statements, deliberately lying on his application for permanent
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`residency, his 0-2 visa application, and a prior B1/B2 tourist visa application in 2009.^ Id.
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`Special agents with the Diplomatic Security Service ("DSS") then joined the investigation. Id.
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`On the aforementioned applications. Defendant had falsely denied any prior arrests and falsely
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`denied being known by any other names or aliases. Id. \S. Those statements were lies. The
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`investigation revealed that in truth the Defendant had been arrested twice before in Jamaica
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`under the name Andy Fowl, id.
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`5, 24-25. Defendant deliberately lied seeking to hide the
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`existence of these prior arrests and his use of the name Andy Fowl on his visa and permanent
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`residency applications. M ^ 5.
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`^ The 2009 visa application was denied because the consular officer was not persuaded that Defendant was not going
`to immigrate to the United States illegally. PSR ^ 4.
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`On July 15, 2015, Defendant was arrested by DSS and HSI special agents and U.S.
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`Marshals at his home in Philadelphia, Pennsylvania. Id. 6. In a post-arrest statement.
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`Defendant admitted to using the alias Andy Fowl in the past and to a prior arrest in 2010. Id.
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`On November 4,2015, Defendant was released on a $100,000 imsecured bond with
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`pretrial reporting conditions, id. at 1, and he has been fully compliant with the conditions of his
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`release ever since, id. H 2.
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`On February 25, 2016, Defendant submitted an application for asylum to USCIS on
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`which he admitted that he had in fact been known by the alias Andy and had in fact been
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`previously been arrested in 1995. He continued to lie, however, about his use of the alias Andy
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`Fowl. He also continued to lie about his 2010 arrest. Id. ^5.
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`On August 26, 2016, Defendant was found guilty by jury verdict of a single count of visa
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`fraud after a trial before this Court. Id.^\.
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`B. The Need for the Sentence Imposed
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`The second § 3553(a) factor instructs the Court to consider "the need for the sentence
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`imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to
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`provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
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`(C) to protect the public from further crimes of the defendant; and (D) to provide the defendant
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`with needed educational or vocational training, medical care, or other correctional treatment in
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`the most effective manner." 18 U.S.C. § 3553(a)(2).
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`The Court's sentence punishes Defendant for violating federal law and is crafted to deter
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`him and others from engaging in similar criminal activity in the future. It also reflects the
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`seriousness conveyed to this court by the numerous members of the Jamaica Police Forces who
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`traveled to this Court to document their understanding as the Jamaican Police Constabulary of
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`Defendant's numerous violent shooting charges in Jamaica. This Court has broad discretion to
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`consider this conduct in imposing sentence for the instant offense. United States v. Pica, 692
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`F.3d 79, 88 (2d Cir. 2012) ("A district court may treat acquitted conduct as relevant conduct at
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`sentencing, provided that it finds by a preponderance of the evidence that the defendant
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`committed the conduct."). There was more than ample testamentary and documentary evidence
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`presented to this Court throughout the Defendant's trial for visa fraud establishing be a
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`preponderance of the evidence on a clear and convincing basis that the JCF had probable cause
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`to arrest Defendant for the shooting, including testimony by the arresting JCF officer to that
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`effect. Trial Tr. 159:1-162:19; 186:8-187:12 (testimony regarding Defendant's arrest); 173:21-
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`180:3; 186:19-190:18 (testimony regarding Defendant's court proceedings). This Court finds
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`Defendant's prior involvement in such a serious and violent crime supports an upward variance
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`in sentencing him for the instant offense because, as discussed above, his deliberate visa fraud
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`involved making false statements regarding this arrest and deliberate lies to hide his other called
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`(OC) or also known as (a/k/a) name: Andy Fowl.
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`The Kinds of Sentences Available
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`The third § 3553(a) factor requires the Court to detail "the kinds of sentences available"
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`for Defendant. 18 U.S.C. § 3553(a)(3).
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`Defendant was convicted of one count of visa fraud, in violation of 18 U.S.C. § 1546(a),
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`for which he faces a maximum term of imprisonment of ten years. 18 U.S.C. § 1546(a). He may
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`also be sentenced to a term of supervised release of not more than three years, id. § 3583(b)(2),
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`and he is eligible for not less than one nor more than five years of probation, id. § 3561(c)(1),
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`with a fine, restitution, or community service imposed absent extraordinary circumstances, id. §
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`3563(a)(2). In addition. Defendant faces a maximum fine of $250,000.00, id. § 3571(b), and
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`payment of a special assessment of $100.00, id. § 3013. The Court's sentence falls within the
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`kinds of sentences available for Defendant.
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`C. The Kinds of Sentence and the Sentencing Range Established For Defendant's
`Offense
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`The fourth § 3553(a) factor requires the Court to discuss "the kinds of sentence and the
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`sentencing range established for ... the applicable category of offense committed by the
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`applicable category of defendant as set forth in the guidelines[.]" 18 U.S.C. § 3553(a)(4)(A).
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`Guidelines § 2L2.2(a) applies to violations of 18 U.S.C. § 1546(a) and sets a base offense
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`level of eight. See United States Sentencing Commission, Guidelines Manual^ § 2L2.2 (Nov.
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`2016) ("USSG" or "Guidelines"). Because no adjustments apply. Defendant's total adjusted
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`offense level is also eight. The Defendant has been arrested in Jamaica and has a criminal history
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`category of one, see USSG ch. 5, pt. A.
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`Given a total offense level of eight and a criminal history category of one, the Guidelines
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`suggest a term of imprisonment of zero to six months. USSG ch. 5, pt. A. Defendant may also
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`be sentenced to: a term of supervised release of one to three years, id. § 5D 1.2(a)(2); a fine of
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`between $1,000.00 and $10,000.00, id. § 5E1.2(c)(3), (h)(1); and payment of the costs of
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`prosecution, id. § 5E1.5. The Guidelines further suggest Defendant is eligible for a term of
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`probation of not less than one nor more than five years. Id. § 5B 1.2(a)(1).
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`The U.S. Probation Department recommends a sentence of time served followed by three
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`years of supervised release with special conditions in this case. The Defendant's counsel also
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`requests a sentence of time served or, in the alternative, a sentence of home detention, to allow
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`Defendant to continue to care for his son and provide the significant emotional and
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`developmental support he requires. See Def.'s Sentencing Mem. at 2-4, ECF No. 70. The
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`Government more appropriately requests a sentence of twelve months imprisonment, which
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`would represent an upward variance from the Guidelines, "in order to reflect the serious criminal
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`conduct of which the defendant was convicted," visa fraud, as well as similar alleged
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`misrepresentations made on documents related to other immigration applications, for which
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`Defendant was not charged. See Gov't Sentencing Mem. at 1,4, ECF No. 69. The Government
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`also asserts that a sentence above the Guidelines is warranted to deter Defendant and others from
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`similar conduct in the future. Id. at 4. The Government is wise to do so. Lying to American
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`immigration authorities about prior arrests for shootings and lying to American immigration
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`authorities presents a serious challenge to national security and principled law enforcement.
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`D. Pertinent Policy Statement(s) of the Sentencing Commission
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`The fifth § 3553(a) factor requires the Court to evaluate "any pertinent policy statement.
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`.. issued by the Sentencing Commission." 18 U.S.C. § 3553(a)(5).
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`Guidelines § 4A1.3 contains a pertinent policy statement regarding departures based on
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`the inadequacy of a defendant's criminal history category. Specifically, it provides that, "[i]f
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`reliable information indicates that the defendant's criminal history category substantially under-
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`represents the seriousness of the defendant's criminal history or the likelihood that the defendant
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`will commit other crimes, an upward departure may be warranted," and notes that such
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`information may include "[p]rior similar adult criminal conduct not resulting in a criminal
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`conviction." USSG § 4A1.3(a)(1), (a)(2)(E). Here, as described above. Defendant also allegedly
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`submitted false statements in connection with prior visa, permanent resident, and asylum
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`applications. See PSR 4-5, 64. This activity constitutes adult criminal conduct similar to the
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`instant offense, which did not result in any criminal convictions and could not be factored into
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`the Guidelines calculation for the instant offense. See id. H 64. Consequently, it warrants an
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`upward departure. See id.
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`£. The Need to Avoid Unwarranted Sentence Disparities
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`The sixth § 3553(a) factor requires the Court to consider "the need to avoid unwarranted
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`sentence disparities among defendants with similar records who have been found guilty of
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`similar conduct." 18 U.S.C. § 3553(a)(6).
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`For the reasons stated in this memorandum and order, and considering the other six
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`§ 3553(a) factors, the Court's sentence avoids unwarranted sentence disparities.
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`F. The Need to Provide Restitution
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`Finally, the seventh § 3553(a) factor, which requires the Court to touch upon "the need to
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`provide restitution to any victims of the offense," 18 U.S.C. § 3553(a)(7), is not applicable in this
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`case, see id. § 3663.
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`CONCLUSION
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`A sentence of 12 months of incarceration to be followed by three years of supervised
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`release, and payment of the $100.00 special assessment is appropriate and comports with the
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`dictates of § 3553. This sentence is consistent with, and is sufficient but no greater than
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`necessary to accomplish, the purposes of § 3553(a)(2).
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`The Court expressly adopts the factual findings of the Presentence Investigation Report
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`and imposes the special conditions of release proposed by the Probation Department.
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`SO ORDERED.
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`s/WFK
`HON. WILLIAM F. KI
`UNITED STATES DISTRICT JUDGE
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`Case 1:15-cr-00580-WFK Document 71 Filed 06/29/17 Page 11 of 11 PageID #: 275
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`Dated: June 28,2017
`Brooklyn, New York
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