A former Santa Fe investment adviser who pleaded guilty to federal fraud charges remains out of prison more than a year after a judge ruled he should be resentenced because he essentially bought his way out the first time.
U.S. District Judge Judith Herrera sentenced Matthew Sample, then 42, to five years of probation in 2017 after the charismatic con artist — who had bilked large sums from a Santa Fe couple and other investors to finance a lifestyle that included a party pad with real gold woven into the wallpaper — pleaded guilty to one count of “fraud and swindles” and one count of wire fraud.
A new sentencing for Sample is scheduled Tuesday.
Federal prosecutors had wanted the judge to sentence Sample to five years behind bars, but Herrera sided with Sample’s attorney, who argued the swindler would never be able to pay back his victims if he were in lockup.
Prosecutors appealed the sentence, and in August 2018, 10th Circuit Court of Appeals Judge Carlos Lucero kicked the case back to District Court for resentencing, saying it was clear Sample had gotten probation because he earned a lot of money — which would allow him to make restitution payments.
But, Lucero wrote in his order, “Our system of justice has no sentencing discount for wealth.”
“He misappropriated more than a million dollars,” Lucero wrote. “That seriousness alone weighs against the lenient nature of the sentence the trial court imposed.”
Lucero quoted a 2006 federal court decision that noted the importance of minimizing discrepancies between white-collar and blue-collar offenders and “limiting the ability of those with money or earning potential to buy their way out of jail.”
He wrote that a federal sentencing commission considers Sample’s crimes deserving of about seven years in federal prison.
Sample filed various appeals to that ruling and has remained out of prison for more than a year while those motions have moved through the court system.
According to court documents filed by First Assistant U.S. Attorney Fred J. Federici, Sample has continued to lead the same lavish and dishonest lifestyle that brought him to court in the first place: taking trips to Hawaii and Alaska, failing to keep up with restitution payments and attempting to mislead the court about his finances.
“It is worth remarking,” Federici wrote in a memo, “that, among Sample’s indulgences … he paid at least $2,675 in gym fees to belong to San Diego’s swanky downtown ‘Fit Athletic Club,’ and told his supervisor at work that ‘he would not be seen’ at the more budget friendly gym to which his boss belonged.”
Sample also was fired from the high-paying job he told the court would help him to pay back his victims, Federici said in the memo, and lied about the circumstances of his separation from his employer, saying he’d resigned.
As of June, Sample was $37,593 in arrears on his restitution payments, according to the government, and still owed his victims $976,246.
Prosecutors want Sample sent to prison for 6½ years.
But Sample’s attorney, Ray Twohig, disputes the government’s claims and is asking the court to put Sample back on probation.
In a recent sentencing memo, Twohig repeated arguments he’d made at Sample’s original sentencing, in which he said Sample is a good person who did bad things at a difficult time in his life.
“The Court can see this is not an unrepentant con-man,” Twohig wrote in the Nov. 4 memo, “but rather a human being whose personal life got out of control by losing his business in Chicago, coming out as gay and ending his marriage, exposure to the drug and alcohol fueled segment of the gay culture, and an abusive 5 year relationship.”
Twohig said in his motion Sample was wrongfully terminated from his prior job and has moved to a different company and continued making restitution payments.
He has since married his longtime partner and has created a stable home with him in Austin, Texas — where they relocated to help care for Sample’s ailing mother before her death in 2018 — and regularly volunteers in the community, Twohig said.
All of the trips the government has characterized as personal in nature have been either for the funerals of his parents or business travel, the attorney added.
Twohig is asking the court to resentence Sample to five years of probation, order him to pay the full amount of restitution during his probationary period, be on house arrest for one year — during which he would spend “intermittent” weekends in jail — and perform 1,000 hours of community service.