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United States v. Cooper

United States District Court, N.D. Alabama, Southern Division

June 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PHILIP HENRY COOPER, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          L. Scott Coogler United States District Judge

         I. Introduction

         The defendant, Philip Henry Cooper (“Cooper”), has filed a response and objection to Writs of Execution filed by the Government, a motion to amend his judgment to provide that restitution is to be paid in installments, and a request for a hearing. (Doc. 112.) The Government has responded in opposition. (Doc. 117.) Cooper has replied in support. (Doc. 118.) For the following reasons, Cooper's requests are due to be denied.

         II. Background

         The grand jury indicted Cooper and others in June 2016 for bank bribery, wire fraud, money laundering, and conspiracy to defraud Regions Bank (“Regions”) of over $5.1 million. (Doc. 1.) It returned a Superseding Indictment containing the same kinds of charges in September 2016. (Doc. 36.)

         In May 2017, Cooper pleaded guilty to conspiracy. In his Plea Agreement, Cooper admitted to perpetrating the scheme and personally receiving over $1 million from it, and agreed to pay $5.1 million in restitution back to Regions, jointly and severally with his co-conspirators. (Doc. 69.) He agreed to forfeit $551, 649 formerly stored in his attorney's trust account and a safe in his house. He also agreed not to contest, by appeal or post-conviction motion, any restitution order entered against him. (Id. at 12-13.) The Government agreed to recommend a 60-month prison sentence. It also agreed not to take Cooper's residence for restitution or forfeiture, and to recommend to the Attorney General that the $551, 649 be applied towards his restitution obligation-in other words, that the forfeited funds be “restored” to Regions. At his May 2017 plea hearing, Cooper agreed that he had read his Plea Agreement and discussed it with his lawyer, initialed all its pages, and signed it in various places. (Doc. 116.) He also agreed that he had knowingly and voluntarily signed the portion waiving his right to appeal or file a post-conviction petition except in limited circumstances. (Id. at 19.)

         Cooper later revealed, in an objection to the original Presentence Investigation Report (“PSR”), that he had approximately $59, 000 worth of equity in the residence that the Government had agreed not to forfeit or liquidate for restitution. Cooper's Revised PSR contains additional facts concerning his and his wife's finances: Cooper is married to P.S., who is employed with a company that, prior to sentencing, was planning to transfer her to Florida; Cooper and P.S. sold the residence that the Government agreed not to forfeit, and P.S. purchased a house in Florida in August 2017 for $302, 000, with $70, 000 of that coming out of the couple's checking account; as of September 2017, Cooper received $1, 643.67 per month from the Regions Financial Corporation Retirement Plan; as of September 2017, Cooper had $531, 660.90 in a Regions 401(k) account and $206, 784.27 in a Fidelity account; as of September 2017, P.S.'s monthly income was $5, 659.80, making her and Cooper's combined income $7, 303.47-more than $2, 600 over their total monthly expenses.

         At sentencing, the Government recommended that Cooper receive 48 months in prison-a year lower than the 60 months it agreed to in the Plea Agreement, and over three years lower than the low end of his Guidelines range. The Court agreed, and also noted that it would not impose a fine against Cooper “because the restitution . . . is going to take care of the majority of the assets that a fine could be recovered from.” (Doc. 111 at 7.) The Court also orally ordered Cooper to pay $5.1 million in restitution jointly and severally with two co-defendants. The following exchange then occurred:

The Court: As to your restitution, he has paid a significant portion of that; is that correct?
Defense Counsel: Yes, sir. He's paid slightly over half. We would ask, if the court is so inclined, to order that it be payable henceforth by installment plan given the amount.
The Court: Right. Well, this is what I normally say in this and that is that the restitution will be with interest. And it's all due immediately. But until he gets out of prison, there is not going to be an effective way of really breaking up and figuring out how much he can pay per month kind of thing.
Defense Counsel: Yes, sir.
The Court: So when he gets out, I'm going to direct the probation office to get with him and calculate what would be an effective amount based on what's left to be paid at that time.

(Doc. 111 at 8-9.) Cooper did not object to the restitution order or anything else the ...


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