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September 4, 2009

Eighth Circuit affirms stat-max sentence for false statement in bankruptcy proceeding

With a struggling ecomony perhaps leading more and more businesses and persons to consider declaring bankruptcy, a ruling today from the Eighth Circuit in US v. Waldner, No. 08-2606 (8th Cir. Sept. 4, 2009) (available here), provides a sharp reminder why one must be truthful in any bankruptcy proceeding.  Here is the unofficial summary of the Waldner ruling from the Eighth Circuit's website:

District court did not err imposing a 16- level increase under Guidelines Sec. 2B1.1(b)(1)(I) as the court properly concluded the amount of loss exceeded $1 million; nor did the court err in imposing enhancements under Guidelines Sec. 2B1.1(b)(9)(c) for use of sophisticated means, Guidelines Sec. 3B1.2 for abuse of a position of private trust or Guidelines Sec. 3C1.1 for obstruction of justice; no error in denying request for reduction for acceptance of responsibility; even though the district court committed significant procedural error when it purported to use certain upward departures to calculate a new advisory guidelines range, the error did not require reversal or resentencing because the sentence was within the properly calculated advisory Guidelines range and was substantively reasonable; restitution order of $1.72 million affirmed.  Judge Bright, concurring.

Judge Bright's concurrence, fully reprinted here, captures the heart of the reasonableness sentencing issue:

The district court imposed the maximum possible penalty under the law (ten years).  I would note that Waldner is a first-time offender, a good wage earner in his earlier positions, and apparently a good father and husband.  The sentence does appear heavy but it was within the discretion of the district court.  Thus, I concur.

September 4, 2009 at 11:12 AM | Permalink


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When talking about bankruptcy, sometimes it looks like talking about hell and death penalty. Since, for some clients, bankruptcy is the end of everything. No house, no jobs, no money. That's why as an attorney, I always try suggests other methods first to them, if I see that they are not necessary to declare bankruptcy at the moment. Rudy

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