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August 18, 2008

Interesting "loss" issue in Sixth Circuit case

The Sixth Circuit this morning has an interesting discussion of loss calculations within the federal guidelines in affirming a sentence in US v. Simpson, No. 07-5840 (6th Cir. Aug. 18, 2008) (available here).  Here is how the Simpson opinion starts:

Defendant Harold Simpson appeals the sentence and order of restitution imposed for his crime of mail fraud.  For several years, Simpson underreported payroll information for his businesses to his workers’ compensation insurance carriers.  The district court concluded that the “loss” caused by this conduct was the amount of additional premiums that the insurance carriers would have charged had they been given accurate information.  The court then used those figures to calculate Simpson’s Sentencing Guidelines range and the amount of restitution due to the carriers. On appeal, Simpson argues that the proper measure of loss was not the unpaid premiums, but the amount of money that the carriers actually paid on claims.  This argument fails, however, because what Simpson took through his deceit was insurance coverage, and the fair market value of that coverage was the amount of the unpaid premiums.  We therefore affirm the judgment of the district court.

D'oh!

August 18, 2008 at 11:34 AM | Permalink

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Comments

How is this not appropriate? The defendant intended to get the entire coverage by fraud, the coverage is valued at $X (the premiums), so the loss is $X.

Loss is a proxy for HARM, not a measure of restitution.

Posted by: dweedle | Aug 19, 2008 11:52:13 AM

I find it interesting how much lower the guidelines range was for this case than the Perez case brought up just a couple days ago.

Posted by: Soronel Haetir | Aug 19, 2008 5:05:44 PM

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