Federal prosecutors plan to file a motion this month asking for a more lenient sentence for Brandon Barber, a former Fayetteville real estate developer who pleaded guilty last year to charges of fraud and money laundering involving more than $30 million.
Initially, they requested a sentence of about 20 years in prison, based on federal guidelines. Barber's attorney, Asa Hutchinson III, suggested five years instead.
Barber, 38, is scheduled for sentencing Oct. 28 before U.S. District Judge P.K. Holmes III in federal court in Fort Smith. The maximum possible sentence is 40 years in prison.
Each side filed a supplemental sentencing memorandum Tuesday in U.S. District Court.
In his six-page memorandum, U.S. Attorney Conner Eldridge wrote that the government will file a motion for a "downward departure" based on cooperation under U.S. Sentencing Guidelines, Section 5k1.1.
That section states that "upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines."
Barber has cooperated with the federal government, spending more than 45 hours meeting with federal prosecutors to assist with the prosecution of five co-defendants, Hutchinson wrote in an Aug. 1 court filing.
"Brandon Barber was the first defendant to accept responsibility for his actions, enter a plea of guilty and provide his full cooperation to the government," Hutchinson said Wednesday. "We will be asking the court to take these facts, among others, into consideration when sentencing Brandon."
FBI agents arrested Barber in New York City on March 20, 2013, and he was charged on 27 counts, most involving bank and bankruptcy fraud in Arkansas.
On July 31, 2013, Barber pleaded guilty to three federal charges: conspiracy to commit bank fraud, money laundering and conspiracy to commit bankruptcy fraud. As part of the agreement, the 24 other charges against Barber were dismissed.
Barber admitted he defrauded banks by lying about the value of real estate to get inflated loans. Barber also admitted that he directed a Fayetteville attorney to use a trust fund account to help him hide money.
In Hutchinson's filing, he stated that the amount of loss regarding Barber's offenses, for the purposes of sentencing, totals $32 million.
The government will be seeking restitution close to the amount of total losses, Eldridge wrote in his filing.
Although Barber cooperated with the government, he also violated the terms of his release on bond several times, wrote Eldridge. Barber went to restaurants and other places without permission when he was supposed to be under home detention in New York City. As a result, Barber has been incarcerated since June 14, 2013, in the Washington County jail. Hutchinson is also asking that Barber receive credit for the time he has spent in jail.
The pre-sentencing investigation reports are under seal with the court. But additional filings on the matter have been open to the public.
In a July 24 filing, federal prosecutors recommended a prison sentence of 235-293 months, between 19 years, seven months and 24 years, five months.
Hutchinson said Eldridge's filing indicated that in addition to the downward departure, Barber could get a further reduction in offense level on the basis of his acceptance of responsibility. That would mean a range of 168-210 months, which is 14 years to 17 1/2 years in prison.
"It is all entirely up to the court's discretion," Hutchinson said.
Since his criminal case began, 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.
In two court filings, Asa Hutchinson III asked that Barber be sentenced to serve his time at the federal prison camp in Lewisburg, Pa., and be deemed eligible to participate in the prison's residential drug abuse program. Pennsylvania is closer to New York City, where Barber's two children live with their mother.
Evidence that treatment is needed will be presented at the Oct. 28 hearing, Hutchinson wrote in his Aug. 1 filing.
The Oct. 28 sentencing hearing is expected to last about half a day. Hutchinson plans to call three character witnesses. The federal government has no new witnesses to put on the stand at that hearing, wrote Eldridge.
Metro on 10/13/2014