Federal prosecutors want former Fayetteville real-estate developer Brandon Barber to serve about 20 years in prison for conspiracy to commit bankruptcy fraud, money laundering and conspiracy to commit bank fraud, according to a court document filed Thursday.
But Asa Hutchinson III, Barber's attorney, said the recommendation is a starting point and U.S. District Judge P.K. Holmes III could sentence Barber to much less time in prison.
"We're arguing with the judge that the starting point is too high," said Hutchinson. "We're wanting the starting point to be much lower, with all deference to the court."
As part of an agreement with prosecutors, Barber, 38, pleaded guilty to the three felonies July 31.
He initially was charged with 27 counts involving about $30 million in bank loans and his $53 million personal bankruptcy in 2009, debt Barber sought to have discharged because he said he had no assets.
As part of the plea agreement, Barber admitted he defrauded banks by lying about the value of real estate to get inflated loans. Barber also admitted that he directed his Fayetteville attorney to use a trust fund account to help him hide money.
A sentencing hearing for Barber is scheduled to begin Aug. 13 in U.S. District Court in Fort Smith.
First Assistant U.S. Attorney Wendy Johnson filed a memorandum in federal court Thursday saying the probation office's final calculations recommend a prison sentence of 235-293 months, which equates to 19 years, seven months, and 24 years, five months. That was the sentence she recommended in the court filing.
Hutchinson said the calculation used by the federal government punishes Barber more than once for the same offense.
"In a lot of these white collar cases, the guidelines, while well intended, wind up amounting to a much more punitive sentence in my opinion," said Hutchinson.
Hutchinson said he anticipates U.S. attorneys filing a motion with the court before Aug. 13 asking the judge to consider Barber's cooperation with the government and other factors that would lower the offense level.
Sentencing guidelines, while "very influential," are advisory, not mandatory, Hutchinson said.
"The judge ultimately has the decision whether to follow the guidelines or depart from the guidelines," said Hutchinson.
The probation office's calculations took into consideration $32.3 million that seven Arkansas banks lost because of schemes that Barber and five indicted co-defendants are accused of conducting.
According to Johnson's court filing, testimony from the federal government's witnesses could take an hour to an entire day of the hearing that begins Aug. 13.
The presentencing investigation reports are under seal with the court. The federal government had six objections to the initial presentencing report from May 7, and Barber's attorneys had 20 objections, according to Johnson's memo.
U.S. attorneys had no objections to the final presentencing investigation report filed Thursday.
Hutchinson said he will request that Barber be sentenced to prison in Pennsylvania so he'll be closer to his two children, who live in New York City.
In Thursday's court filing, Johnson also asked the court for a preliminary order of forfeiture for any property involved in the crimes for which Barber was convicted.
"At sentencing, the United States will request a money judgment against the defendant for the proceeds of the bank fraud conspiracy, the conspiracy to defraud the bankruptcy court and the $20,000 involved in the money laundering offense and other additional evidence in support of the amount," wrote Johnson.
Johnson also asked the judge to issue an order allowing any of Barber's property to be seized to pay the monetary judgment against him.
Since the criminal case began two years ago, Barber has been represented in court by Asa Hutchinson Sr., the candidate for governor, and his son, Asa Hutchinson III.
Barber, a Jonesboro native, was a prominent real-estate developer in Northwest Arkansas before the recession that began in 2007. His Fayetteville developments include the $17 million, seven-story Legacy Building near Dickson Street.
Barber has been in the Washington County jail since June 14, 2013.
NW News on 07/25/2014