Brandon Barber’s day of reckoning approaches — he’s scheduled for sentencing in Fort Smith on Aug. 13 — and federal prosecutors think the bankrupt northwest Arkansas real estate developer should spend a very, very long time in prison.
In a sentencing memorandum filed Wednesday, U.S. Attorney Conner Eldridge and his first assistant, Wendy Johnson, agreed with the U.S. Probation Office’s calculation of Barber’s guideline sentence range of 235 to 293 months. In other words, at least 19 and a half years, although U.S. District Judge P.K. Holmes has discretion to vary from the guideline range. And he could get credit for the time he’s served in the Washington County jail since his bond was revoked in June 2013.
The sentencing range, which Barber and his attorneys have challenged, is supercharged by the loss amount calculated for Barber’s crimes: more than $32.3 million. The government also argues that Barber should be punished more severely for using “sophisticated means” to accomplish his crimes and because he was the ringleader of a criminal conspiracy.
Barber’s objections to the Probation Office’s pre-sentencing report were filed under seal, but his attorney, Asa Hutchinson III, told Whispers that the defense still had points of disagreement with the final report. Barber, Hutchinson said, is not trying to avoid responsibility or deny his guilt, but he wants the sentencing guidelines to be applied fairly.
The defense will dispute the government’s worst-case calculation of the victims’ losses and argue that the fraud was not as sophisticated enough to warrant extra points in the sentencing matrix.
And, he said, Barber should get a credit for accepting responsibility for his crimes and pleading guilty relatively early in the prosecution.
In its memorandum, the government helpfully itemized Barber’s victims and their losses:
- Legacy National Bank of Springdale, $9.9 million in principal only in the Legacy Condominiums transaction;
- Enterprise Bank & Trust of Clayton, Missouri, $7.6 million in principal only on the Bellafon Retail transaction;
- First Federal Bank of Harrison, $5.3 million in principal only in the Outfield, Spring Creek and Executive Plaza real estate transactions;
- Today’s Bank of Huntsville (formerly First State Bank of Northwest Arkansas), $3.7 million (principal only) in fraudulent loans to Barber and his Lynkohn LLC for the Legacy Condo project;
- Bank of Fayetteville, $2.4 million in principal only for loans to SBC Investments LLC and Metro District LLC for which Barber submitted false financial statements;
- First State Bank of Lonoke, $1.8 million in loans for The Peaks Condos transaction, for which Barber submitted false financials; and
- Simmons First National Bank, $1.6 million in principal involved in the Metro District transactions.
Three of Barber’s co-defendants are also scheduled for sentencing: James Van Doren on Nov. 3, Jeff Whorton on Nov. 5 and Brandon Rains on Nov. 6. (The original version of this article gave August sentencing dates for Rains, Van Doren and Whorton, but the hearings were subsequently rescheduled.)