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December 6, 2006

The joys of loss calculations

Anyone who enjoys federal guideline minutiae should be sure to check out today's work by the Eleventh Circuit in US v. Cedeno, No. 05-16616 (11th Cir. Dec. 6, 2006) (available here).  Here is the introduction to whet appetites:

Valentin Cedeno and Angel Concepcion participated in smash-and-grab job, using sledgehammers to bash open a large display case at Mayor's Jewelers in Boca Raton, Florida.  They made off with 108 expensive watches with a total value of $1,485,000.  The store got the watches back after the police recovered them, and it spent $13,929 repairing the damage some of the watches suffered during the smashing and grabbing....  The key issue at sentencing was the amount of "loss" under United States Sentencing Guidelines §§ 2B3.1(b)(7)(E)–(F). If the loss did not exceed $1,500,000, Cedeno and Concepcion were due a four-step increase in the offense level, but if it exceeded $1,500,000, they were in line for a five-step increase.

December 6, 2006 at 01:04 PM | Permalink


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Seems like a very obvious, albeit interesting, case. Why would you ever use the repair costs when calculating loss when already including the full value of the items. Afterall, the repairs are to bring the items back to full value (they didn't even do that here). For restitution purposes, of course, the repair losses are very relevant because they were out-of-pocket expenses that would not have occured otherwise. But for loss calculations as it relates to sentencing, it makes no sense to include both the full value and the repair costs.

Posted by: SPD | Dec 6, 2006 5:03:40 PM

How could the lawyers and the court have missed the concept that "loss" is to determined by value?

Watches have a "mark-up" of 2 to 5X cost.

Did no one agrue that fact under the now, supposidly, non-mandatory post Booker guidlines?

Disgusting, to say the least.


Posted by: jack dempsey | Dec 6, 2006 9:54:11 PM

Suspended lawyer, you has had a belly full of federal prosecutors. I fought these guys for 30 years...with much success. A M-H AV lawyer for the last 17 years of my quest.

Posted by: jack dempsey | Dec 6, 2006 9:58:34 PM

Market value

The DC used a market value concept to arrive at loss. The circuit court bought into this specious argument.

Where was the expert witness for the defendants who would testify that in certain "markets", like jewelry, diamonds etc loss is REPLACEMENT value? This shows how misguided "loss" calculations are under the guidelines.

By the way, Booker means nothing under most circuit court decisions.

Federal sentencing has become a game that some of us are old enough to remember;



Posted by: jack dempsey | Dec 6, 2006 10:15:16 PM

In Massachusetts malicious destruction of property is a felony if the value is over $250. (Being a formal element of the crime, value is a jury question.) The state appeals court ruled that the appropriate value was the original value of the object damaged. So if you punch a hole in the wall of a house, you damaged a half million dollar item and the loss is a half million dollars and you were guilty of a felony. Smash a car window and you were responsible for the entire car. The state supreme court reversed and held that the value to use is the damage done, not the value of the undamaged object.

Posted by: John Carr | Dec 7, 2006 5:14:01 PM

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