Federal Sentencing Guidelines
| Publication year | 2015 |
Federal Sentencing Guidelines
Rosemary Cakmis
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The sentencing decisions of the United States Court of Appeals for the Eleventh Circuit in 2014 focused on United States Sentencing Guidelines (USSG, or the Guidelines) enhancements applied in connection with economic, drug, immigration, firearm, and sex-related offenses.1 This Survey first discusses the precedential decisions dealing with enhancements that only apply to a specific type of offense, such as an economic, drug, or sex-related offense, and are found in Chapter Two of the United States Sentencing Guidelines Manual (the Guidelines Manual). Next, this Survey examines decisions reviewing the "Adjustments" in Chapter Three of the Guidelines Manual, which apply to any type of offense. The Survey then discusses decisions regarding assorted enhancements that
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are based on prior convictions for controlled-substance offenses and crimes of violence. Those enhancements are contained in the specific-offense characteristics for immigration and firearm offenses in Chapter Two of the Guidelines Manual, as well as in the criminal history enhancements for certain drug, firearm, and violent offenses set forth in Chapter Four. Finally, the Survey summarizes decisions involving departures and variances.
Chapter Two, Part B of the Guidelines Manual2 contains the primary-offense guidelines and specific-offense characteristics for "Basic Economic Offenses" like fraud, theft, and robbery.3 Some of the enhancements in Part B, however, also apply to economic offenses addressed in other parts of the Guidelines Manual. For example, the money laundering guideline applied in United States v. Campbell4 increases the base offense level by the number of levels from the loss table in USSG § 2B1.1(b)(1)5 corresponding to the value of the laundered money.6 Similarly, the bribery guideline applied in United States v. Esquenazi7 enhances the base offense level by the number of levels from the loss table corresponding to the value of the payment, the benefit received, or the government's loss.8
A. Enhancement for Amount of Loss
"Under the Sentencing Guidelines' approach to economic crime," the Eleventh Circuit explained in Campbell, "the amount of financial loss attributable to a defendant's crime serves as a proxy for 'the seriousness of the offense and the defendant's relative culpability.'"9 The loss table contained in § 2B1.1(b)(1), thus, is often the predominant factor in calculating sentences for economic offenses.
The loss table is fairly straightforward. The loss amount is simply plugged into the table to determine how many levels are added to the
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base offense level.10 The difficulties arise when calculating the loss amount attributable to individuals engaged in complex schemes involving various types of crimes.11
Subject to certain exclusions and credits, the commentary to § 2B1.1-(b)(1) defines "loss" as "the greater of actual loss or intended loss."12 Alternately, the sentencing court must measure the loss by "the gain that resulted from the offense" when a loss actually occurred "but it reasonably cannot be determined."13 Recognizing that "the appropriate method" to calculate loss in any given case is "highly fact-dependent,"14 the Eleventh Circuit published several decisions in 2014 expounding on the multiple layers of general principles that guide a sentencing court's loss calculations.
In United States v. Isaacson,15 for instance, several conspirators devised and executed "a complex scheme designed to defraud investors through a group of hedge funds."16 After a few years, the auditors of the hedge funds became suspicious, prompting the conspirators to recruit the defendant to assist in preparing inflated valuations of the hedge funds' assets to placate the auditors. As a result, the defendant was convicted of conspiracy to commit securities fraud.17
At sentencing, the defendant objected to the § 2B1.1(b)(1) loss enhancement that was based on an investment in the hedge funds.18 The United States District Court for the Southern District of Florida "defined [the defendant's] agreement to participate in the conspiracy narrowly, as a conspiracy to defraud the auditors."19 In overruling the defendant's objection, however, the sentencing court "concluded that by
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defrauding the auditors, Mr. Isaacson participated in the broader conspiracy that caused [the investor] to make its investment."20 The Eleventh Circuit disagreed.21
The Eleventh Circuit explained that "a defendant is responsible for the conduct of his co-conspirators only if that conduct was 'in furtherance of the jointly undertaken criminal activity' and 'reasonably foreseeable in connection with that criminal activity.'"22 The sentencing court therefore must first "make individualized findings concerning the scope of criminal activity undertaken by a particular defendant."23 Then, the court must determine whether the co-conspirators' acts were "in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant."24
The determinative factor in Isaacson was the sentencing court's finding that the scope of activity undertaken by the defendant was limited to the conspiracy to defraud the auditors, not the investors.25 Based on that finding, the defendant could only be held accountable for the loss resulting from the acts of himself or his co-conspirators that were "taken to defraud the auditors."26 The record, however, did not support the conclusion that the investment loss "resulted from" the conspiracy to defraud the auditors.27 The Eleventh Circuit ruled that the sentencing court clearly erred in basing that conclusion on "a number of inferential leaps and assumptions not supported by the record."28 Because the challenged loss was not within "the scope of criminal activity undertaken" by the defendant, the Eleventh Circuit vacated the sentence and remanded the case for resentencing.29 The court limited the scope of the resentencing on remand to the record the parties made on the objections at the original sentencing.30
Relying on the same general principles discussed in Isaacson, in United States v. Baldwin31 the Eleventh Circuit rejected challenges to
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loss calculations based on acts by co-conspirators.32 The defendants in Baldwin appealed their sentences for assorted crimes arising from a "scheme involving the unauthorized use of personal identifying information to claim fraudulent tax refunds, which were deposited onto debit cards opened in the names of identity theft victims."33
The Eleventh Circuit affirmed the sentencing court's determination that each defendant was accountable for the total amount of fraudulent tax refunds requested during the conspiracy, despite the sentencing court's failure to articulate specific findings concerning the scope of criminal activity each defendant agreed to jointly undertake.34 That failure, the Eleventh Circuit explained, did not require vacatur of the sentences because the record supported the sentencing court's determination.35
Additionally, in Baldwin, the Eleventh Circuit rejected one conspirator's argument that he could not be held responsible for the loss associated with the fraudulent tax returns that were filed when he was incarcerated because he could not participate in those acts.36 Noting that incarceration does not, as a matter of law, "automatically trigger[] withdrawal from a conspiracy" the Eleventh Circuit explained, "It was foreseeable that the other members of the conspiracy would continue to operate despite [the incarcerated conspirator's] absence."37 Moreover, the court observed, the conspirator resumed the criminal activity upon his release from custody, thereby demonstrating that "he never ceased to be a part of the overall conspiracy and is responsible for the losses incurred during his incarceration."38
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The defendants in Esquenazi were convicted on multiple counts charging conspiracies to violate the Foreign Corrupt Practices Act,39 to commit wire fraud, and to launder money, as well as substantive violations of 15 U.S.C. § 78dd-2 and 18 U.S.C. § 1956.40 Pursuant to § 2C1.1(b)(2), their sentences were enhanced by the number of levels from the loss table in § 2B1.1(b)(1) corresponding to the value of "the benefit received or to be received in return for the payment" of a bribe.41
On appeal, the defendants argued that "the value of 'the benefit received' should be the value they each received individually," as opposed to the total value received by the company they owned and operated in connection with the charged offenses.42 Because that argument was not presented to the District Court for the Southern District of Florida, it was relegated to plain error review.43 The Eleventh Circuit concluded that "nothing in our case law makes any error in this case plain."44 Hence, the court affirmed the sentences based on the total value received by the company.45
The defendant in Campbell appealed his sentence after being convicted on ninety-six counts charging various fraud, money laundering, and conspiracy offenses related to a scheme to defraud the State of Alabama. The defendant and his co-conspirators had created a non-profit corporation through which state funds were funneled into the conspirators' accounts. The loss calculations were based on the premise that all the money the non-profit corporation received constituted a loss to the State of Alabama, but that loss amount was then decreased by twenty percent to account for the funds properly distributed to the state.46 The resulting appeal presented "a factual dispute over the legitimacy of the [non-profit corporation] and a legal dispute over what the Government is required to prove in order to establish a loss amount under § 2B1.1(b)-(1)."47
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The Eleventh Circuit...
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