MEMORANDUM & ORDER On August 9, 2022, the Court sentenced Defendant to a total of 60 months of custody followed by two years of supervised release with special conditions, restitution, and a $300.00 mandatory special assessment. Sentencing Mem. & Order at 1, ECF No. 112. On June 5, 2024, Defendant filed his second pro se motion to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2) in light of the so-called “Zero-Point Offender” reduction contained in Amendment 821 to the United States Sentencing Guidelines (“U.S.S.G.” or the “Sentencing Guidelines”). Def. Second Mot. to Reduce Sentence (“Second Mot.”), ECF No. 137. On June 20, 2024, the Court granted Defendant’s motion for a sentence reduction and scheduled a re-sentencing hearing. ECF No. 141. The Court now re-sentences Defendant, providing a complete statement of reasons pursuant to 18 U.S.C. §3553(c)(2) of those factors set forth by Congress in 18 U.S.C. §3553(a). For the reasons discussed below, Defendant is sentenced to a total of 51 months of custody, consisting of 51 months on Count 37 and 36 months on Counts 42 and 43, to run concurrently, followed by three years of supervised release with special conditions, consisting of three years on Count 37 and one year on Counts 42 and 43, to run concurrently. Defendant is also ordered to pay restitution in the amount of $45,869.32 on Count 37, $1,463.00 on Count 42, and $907.00 on Count 43, and a $300.00 mandatory special assessment. BACKGROUND On November 9, 2018, the Government filed a forty-three-count Superseding Indictment against Defendant and his co-defendants (collectively, the “Defendants”), alleging Defendants engaged in a scheme to defraud the Internal Revenue Service (“IRS”) by submitting materially false tax returns to the IRS to collect tax refunds. Superseding Indictment, ECF No. 35. The Superseding Indictment charged Defendant with: (1) Wire Fraud, in violation of 18 U.S.C. §1343 (Counts 1-18); (2) Aggravated Identity Theft, in violation of 18 U.S.C. §1028A (Counts 19-36 and 38-41); (3) Conspiracy to Commit Aggravated Identity Theft, in violation of 18 U.S.C. §§1028A and 371 (Count 37); and (4) Aiding and Assisting in the Preparation of False Tax Returns, in violation of 26 U.S.C. §7206(2) (Counts 42 and 43). Id. On March 4, 2019, following a six-day trial, Defendant was convicted by a jury of one count of Conspiracy to Commit Aggravated Identity Theft, in violation of 18 U.S.C. §§1028A and 371 (Count 37), and two counts of Aiding and Assisting in the Preparation of a False Tax Return, in violation of 26 U.S.C. §7206(2) (Counts 42 and 43). Jury Verdict, ECF No. 80. The jury returned a verdict of not guilty on Counts 3, 4, 7, 10-15, 18, 21, 22, 25, 28-33, 36, 39, and 41. Id. All other counts were previously dismissed on the Government’s motion. Minute Entry on Mar. 1, 2019. On August 9, 2022, the Court sentenced Defendant to a total of 60 months of custody, consisting of 60 months on Count 37 and 36 months on Counts 42 and 43, to run concurrently. Sentencing Mem. & Order at 1. The Court also sentenced Defendant to two years of supervised release with special conditions following his term of custody, consisting of two years on Count 37 and one year on Counts 42 and 43, to run concurrently. Id. The Court ordered Defendant to pay a $300.00 mandatory special assessment, as well as restitution in the amount of $45,869.32 on Count 37, $1,463.00 on Count 42, and $907.00 on Count 43. Id. The Court ordered Defendant to surrender to the United States Marshals Service on September 26, 2022. Judgment at 2, ECF No. 113. On February 9, 2024, Defendant filed a pro se motion to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2), in light of the so-called “Zero-Point Offender” reduction contained in Amendment 821. Def. First Mot. to Reduce Sentence, ECF No. 135. The Court denied Defendant’s motion. See Minute Entry on Feb. 12, 2024. On February 28, 2024, the U.S. Probation Department (“Probation”) filed a Supplemental Presentence Report (“Supplemental PSR”) stating Defendant is eligible for a sentence reduction as a Zero-Point Offender. Suppl. PSR, ECF No. 136. On April 24, 2024, the Second Circuit affirmed Defendant’s sentence. United States v. Ajelero, 22-1825, 2024 WL 1756060, at *1 (2d Cir. 2024) (summary order); see also ECF No. 139. On June 5, 2024, Defendant filed a second pro se motion to reduce his sentence, pursuant to 18 U.S.C. §3582(c)(2), in light of the Zero-Point Offender reduction. Second Mot. On June 20, 2024, the Government filed its response to Defendant’s second motion to reduce his sentence, stating it did not oppose Defendant’s motion and requesting the Court retroactively recalculate Defendant’s Sentencing Guidelines range and impose a new sentence within that range. Gov’t Response at 3, ECF No. 140. That same day, the Court granted Defendant’s motion for a sentence reduction and scheduled a re-sentencing hearing for November 14, 2024, ECF No. 141, which was adjourned until December 13, 2024, ECF No. 143.1 DISCUSSION The Court now sentences Defendant and sets forth its reasons for Defendant’s sentence using the rubric outlined in 18 U.S.C. §3582(c)(2). I. Legal Standard A defendant may move to reduce his sentence based on a retroactive amendment to the United States Sentencing Guidelines set by the United States Sentencing Commission (the “Sentencing Commission” or “Commission”). 18 U.S.C. §3582(c)(2) provides, where a defendant’s term of imprisonment is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),” a district court “may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” District courts follow a two-step process for motions to reduce sentence under §3582(c)(2). Dillon v. United States, 560 U.S. 817, 827(2010). First, “§3582(c)(2) requires the court to follow the Commission’s instructions in [U.S.S.G.] §1B1.10 to determine the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Id. Second, “§3582(c)(2) instructs a court to consider any applicable §3553(a) factors and determine whether, in its discretion, the reduction authorized…is warranted in whole or in part under the particular circumstances of the case.” Id.; see also United States v. Laurent, 11-CR-303, 2024 WL 4424393, at *3 (E.D.N.Y. Oct. 4, 2024) (Garaufis, J.) (“If eligibility for a sentence reduction is established under step one, the court proceeds to step two of the analysis by considering the factors set forth in section 3553(a).” (emphasis added)). II. Zero-Point Offender Eligibility On November 1, 2023, Amendment 821 to the Sentencing Guidelines, also known as the “Zero-Point Offender” reduction, became effective. Amendment 821 provides certain offenders who did not receive any criminal history points under Chapter Four, Part A of the Sentencing Guidelines and whose instant offense did not involve certain aggravating factors — so-called “Zero-Point Offenders” — are eligible for a two-level decrease in their total offense level. See Amendment 821 to U.S. Sentencing Guidelines; U.S.S.G. §4C1.1. The Zero-Point Offender reduction may be applied retroactively unless the reduction “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. §1B1.10(a)(2)(B). To be eligible for a sentence reduction as a Zero-Point Offender, a defendant must meet the following criteria: (1) the defendant did not receive any criminal history points from Chapter Four, Part A of the Sentencing Guidelines; (2) the defendant did not receive an adjustment under U.S.S.G. §3A1.4 (Terrorism); (3) the defendant did not use violence or credible threats of violence in connection with the offense; (4) the offense did not result in death or serious bodily injury; (5) the instant offense of conviction is not a sex offense; (6) the defendant did not personally cause substantial financial hardship; (7) the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (8) the instant offense of conviction is not covered by U.S.S.G. §2H1.1 (Offenses Involving Individual Rights); (9) the defendant did not receive an adjustment under U.S.S.G. §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or U.S.S.G. §3A1.5 (Serious Human Rights Offense); (10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role); and (11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. §848. U.S.S.G. §4C1.1. The parties all agree Defendant satisfies each of these criteria. Second Mot. at 7; Gov’t Response at 3; Suppl. PSR at 3. The Court agrees as well. At Defendant’s initial sentencing hearing, the Court calculated Defendant’s recommended Guidelines sentencing range to be 51 to 63 months of imprisonment based on a total offense level of 24, a criminal history score of zero, and a criminal history category of I. Sentencing Mem. & Order at 9. As a Zero-Point Offender, Defendant receives a two-level reduction to his original total offense level of 24, yielding an amended total offense level of 22. Coupled with a criminal history category of I, this amended total offense level results in an amended Guidelines range of 41 to 51 months. Because this reduction “has the effect of lowering” Defendant’s original Guidelines range of 51 to 63 months, the Court finds the Zero-Point Offender reduction may be applied retroactively. See U.S.S.G. §1B1.10(a)(2)(B). III. 18 U.S.C. §3553(a) Factors Having found Defendant eligible for a sentence reduction, the Court turns to the second prong under 18 U.S.C. §3582(c)(2) to consider any applicable §3553(a) factors and determine whether the reduction is warranted in whole or in part under the particular circumstances of the instant case. There are seven §3553(a) factors for the Court to consider in determining what sentence to impose on a criminal defendant. The Court addresses each in turn. A. The History and Characteristics of the Defendant and the Nature and Circumstances of the Offense The first §3553(a) factor requires the Court to evaluate “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. §3553(a)(1). 1. Family and Personal Background Defendant was born on August 19, 1964 in Lagos, Nigeria to Nasir deen Kudelndo and Ayoola Ajelero. See Original Presentence Investigation Report (“PSR”) 48, ECF No. 93. Defendant’s parents are deceased. Id. Defendant has two full siblings as well as several half-siblings. Id. Defendant was raised by his parents and his father’s two other wives in a middle-class household in Nigeria and reported no abuse in his childhood. Id. 50. Defendant moved from Nigeria to Brooklyn, New York in 1993. Id. 53. He became a naturalized citizen of the United States in 2004. Id. 52. Defendant has two adult sons, both of whom resided with Defendant prior to his imprisonment for the instant offense. Id. 51. Defendant’s sons are aware of his conviction and remain supportive of him. Id. The mother of Defendant’s children passed away in October 2020. Ex. 1 to Original Def. Sentencing Mem., ECF No. 107. 2. Educational and Employment History Defendant obtained the equivalent of a bachelor’s degree in mechanical engineering from the University of Ife in Lagos, Nigeria in 1989, and obtained a computer networking certification from Nouvall Engineering Services in 1998. PSR
58-59. As discussed infra Part III(A)(6), Defendant owned and operated Mo-Betta Ventures, Inc., the subject of the instant offense, from 1996 to 2019. Id. 64. Defendant also has prior work experience as a ride share and cab driver in Brooklyn, as an employee of a cleaning business in Brooklyn, and as a site engineer in Nigeria. Id.
