In Ninth Circuit appeal, Elizabeth Holmes challenges convictions and also seeks resentencing

As reported in this new Insider piece, former Theranos CEO Elizabeth Holmes has filed an appeal of her conviction and sentence in the Ninth Circuit.  Here are the basics:

Holmes was convicted on four counts and sentenced last November to 11.25 years in prison, with three years of supervision following her release.  Holmes, 39, is due to begin her sentence on April 27 after a judge last week denied her request to remain free while she appeals her conviction.  At the time her punishment was handed down, Holmes told the court, through tears, that she was "devastated by my failings" and "felt deep pain for what people went through because I failed them."

But in the brief filed Monday with the US Court of Appeals for the 9th Circuit, Holmes's attorneys claim her original trial was flawed, producing an "unjust" conviction and a "severe" prison sentence.  They argue that she was unjustly barred from citing Balwani's testimony in her own defense....

Holmes's defense team also argued that testimony from Theranos' former lab director, Dr. Adam Rosendorff — that the company's technology was "uniquely problematic" — improperly influenced the court, citing the fact that Rosendorff was not cross-examined and questioned about failings in other labs at which he worked.

For those reasons, the court "should reverse the conviction and remand for a new trial or, alternatively, remand for resentencing," Holmes's lawyers wrote.

The full Holmes brief to the Ninth Circuit is available at this link. The last dozen or so pages of the brief develops the sentencing argument, and here is how this part of the brief begins:

At sentencing, the district court applied a 26-level Guidelines enhancement, adding more than 10 years to what otherwise would have been a 0-7 month range.  It did so by making factual findings about the number of victims and the amount of loss by a mere preponderance of the evidence, based in large part on extra-record and untested evidence such as government interview memoranda.  That was error: under this Court’s precedent, the court needed to find the facts supporting its severe enhancement by clear-and-convincing evidence.  The result of this error is an excessive 135-month term of imprisonment.  That is 27 months higher than what the Probation Office recommended, for a woman who — unlike other white-collar defendants — neither sought nor gained any profit from the purported loss and was trying to improve patient health.  At a minimum, this Court should remand for resentencing.

(FWIW: I think the first sentence means to say "a 0-6 month range.")

Some prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 
• Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April
• Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions