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January 15, 2008

Debatable sentencing rulings at end of long white-collar affirmance

Yesterday the Third Circuit issued a very long opinion in US v. Jimenez, No. 05-4098 (3d Cir. Jan. 14, 2008) (available here), which affirms the convictions and sentences of five persons found guilty of mortgage fraud and bank fraud.  A complicated sentencing discussion begins on page 40 of the opinion, and over the next 10+ pages the opinion covers a lot of ground in ways that strike me as questionable.  The Jiminez panel indicates, inter alia, that defendants have a burden to dispute the government's prima facie showing on loss, that the potential use of the wrong guideline manual was harmless, and that acquitted conduct can readily be treated exactly the same as uncharged conduct.

Though the various rulings in Jimenez are not extreme, many seem quite debatable and likely would have been subject to more debate absent all the other issues that the Jimenez panel had to deal with here.  Of particular note, I do not believe the Third Circuit has previously ruled after Blakely and Booker that acquitted conduct can and should readily be treated exactly the same as uncharged conduct, but Jimenez now seems to make this outcome the law of the circuit.

January 15, 2008 at 01:00 PM | Permalink


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