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Court disapproves of light sentence for con man

Copyright © 2018 Albuquerque Journal

Matthew Sample schemed to steal more than $1 million from multiple victims, used the money to pay for a lavish lifestyle and appeared to have avoided any time in prison for his crimes.

Matthew Sample

Matthew Sample

But an appeals court said it was “puzzled” by the sentence that was imposed on the Santa Fe con man and, in a ruling published this week, sent the case back to U.S. District Court in Albuquerque for re-sentencing.

In December 2015, Sample pleaded guilty to federal fraud and wire fraud charges. In court documents, he admitted stealing a total of more than $1 million from six sets of victims while he was running a hedge fund based in Santa Fe from 2008 to 2014.

He used the investors’ money to fund a high-end lifestyle. His Santa Fe home had gold woven into the wallpaper, for example.

As part of his scheme, Sample sent his investors monthly statements that falsely showed that their accounts were profitable, sent them misleading emails and provided false tax reports, according to court documents.

The money from his victims, in some cases, came from their retirement and college fund accounts.

At Sample’s sentencing hearing in March 2017, the government had asked for a sentence of about six and a half years in prison, which was at the low end of federal guidelines.

But U.S. District Judge Judith Herrera instead sentenced Sample to five years on probation.

Herrera said in court that she was basing her sentence in part on Sample’s high-paying job at the time. He was expected to make more than $200,000 that year, and Herrera said having that job would allow Sample to pay his victims back.

“If you didn’t have your current job and the ability to make these payments, I might be doing something differently,” she said during the hearing. “I don’t think you deserve to have fun for the next few years.”

Prosecutors appealed the decision.

“The government believes that the district court was willing to overlook the many red flags that the government raised (and substantiated) about Sample because of the court’s overriding concern about restitution,” prosecutors wrote in their appeal

Tenth Circuit Court of Appeals Judge Carlos Lucero said in this week’s ruling that the court has explained in published decisions that a person’s wealth should not be a factor when fashioning a sentence.

“We are puzzled by the court’s implicit suggestion that if the defendant were poor and unemployed, he might get a prison term,” Lucero wrote. “… Our system of justice has no sentencing discount for wealth.”

Lucero said that considering a person’s ability to pay restitution should be considered by a judge.

“However, the district court’s reliance on Sample’s salary and overriding all other sentencing considerations exceeded the bounds of permissible choice,” he wrote.

Ray Twohig, Sample’s attorney, said he and Sample are still reviewing the court’s decision and considering their next steps, which could include asking the court to reconsider or asking the Supreme Court to review the case.

He said Sample, who now lives in Texas, has a job organizing real estate appraisals and is continuing to pay restitution.

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