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April 26, 2013

"Sometimes a number is just a number, but when the number at issue triggers an enhancement under the Sentencing Guidelines, that number matters."

The title of this post is the first sentence of this notable Eleventh Circuit panel decision today in US v. Washington, No. 11-14177 (11th Cir. April 26, 2013) (available here).  Here is the rest of the first paragraph, as well as an interesting extra little part of the story from the final section of the Washington opinion (cites omitted):

In this appeal we decide whether the government presented sufficient evidence that 250 or more persons or entities were victimized by the fraud scheme in which Gary Washington participated.  Because the government failed to put on any evidence that there were 250 or more victims, we vacate Mr. Washington’s sentence and remand for the district court to resentence Mr. Washington with a 2-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) rather than a 6-level enhancement under § 2B1.1(b)(2)(C)....

The government asks that it be allowed to prove on remand that there were 250 or more victims for whom Mr. Washington was responsible.  We decline the government’s request. Nothing prevented the government -- which was aware of Mr. Washington’s objection -- from putting on evidence concerning the number of victims at the sentencing hearing, and a party who bears the burden on a contested sentencing issue will generally not get to try again on remand if its evidence is found to be insufficient on appeal.  We have discretion to permit the government to present evidence at resentencing even though it amounts to giving the party a second bite at the apple.  But often a remand for further findings is inappropriate when the issue was before the district court and the parties had an opportunity to introduce relevant evidence, and here the government failed to present any evidence concerning the number of victims.

April 26, 2013 at 05:59 PM | Permalink


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Sentencing enhancements are often extremely harsh and can contribute huge amounts of time to the defendant's sentence. The court can make a reasonable estimate of anything, and it can stick. In my spouse's case, the PSR recommended every enhancement possible, resulting in a sentencing recommendation of 6000 months (550 years) "Sophisticated means" bar, for instance, has gotten lower and lower....the statute says "especially"---which would mean "in particular, compared to all others" to define when the enhancement would apply...yet the 9th circuit in a recent decision found that the defendant, who diverted funds to a similar sounding account (a common embezzlement type plan)---used sophisticated means to defraud and deserved the enhancement. If the standard is that low, there would never be a fraud that could withstand the enhancement. Similarly, the enhancement for "widespread" is applied when it is a duplicate of "250 victims" How could there be any business that had more than 250 people invest and NOT be widespread or sophisticated, given the low standards? The Government basically has NO hurdle to get over---they can simply request the enhancement. This is why if you read appeal after appeal---you will see that people involved in businesses that are accused of being fraudulent have a recommendation of a LIFE SENTENCE. Then when the judge commutes this LIFE SENTENCE recommendation to 50 year, 30 years, 20 years...they are obviously giving a merciful downward departure, and these huge harsh sentences are "reasonable" --given the standard that Congress intended---then the appeals court says the judge had the discretion to depart downward and throw away the key--all the district judges have to do is say, "I considered everything". End of discussion.
So this decision is a step in the right direction. Making both the Government and Court do their job.
The fact that the court actually held the Government to any standard of proof is actually kind of amazing.

Posted by: folly | Apr 29, 2013 7:28:17 AM

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