Jury Finding of Loss Sets Floor for Establishing Offense Level; OK for Court to Find Higher Actual and Attempted Loss
10th Cir. Published Cases
U.S. v. Wilfong, --- F.3d ----, 2007 WL 355311 (10th Cir. Feb. 6, 2007)
Although the jury stated on the verdict form that the loss due to D’s identity theft conspiracy offense was between $30,000 and $70,000, it was not a 6A violation for the district court, following the PSR, to determine that actual loss was $83,000 and intended loss was $151,000, thus increasing the guideline level. Instead of just saying “You lose, we already decided this one,” the 10th also says that after all, the jury was only asked to decide actual loss, but then cites to the jury instruction where the jury was instructed on attempted loss (OK, maybe there is a difference between intended loss and attempted loss....). The 10th also rejected his 6A challenge to level of proof and jury required to establish criminal history.
Facts supported guideline role enhancement: although the district court did not specifically find that D organized or led his co-conspirators, it is clear that he “exercised management responsibility over the critical property of the conspiracy (i.e., the fake Oklahoma driver's licenses), and shared with [his co-D] the critical decision-making authority.”
As passenger in the vehicle that eluded arrest, D “aided and abetted” the reckless endangerment flight, and the 10th upholds the bump up on his guidelines.
10th Cir. Unpublished cases
In a spate of unfortunate decisions–unfortunate policy-wise and fairness-wise–the 10th rejects challenges by BOP inmates who were eligible for or had completed the in-custody drug treatment program but did not get the sentence reduction. Granting the reduction is discretionary with the BOP, and BOP policy to consider possession of firearm offenses an ineligible "crime of violence" is reasonable. (Following Martin v. Rios, 472 F.3d 1206 (10th Cir.2007)).
U.S. v. Wilfong, --- F.3d ----, 2007 WL 355311 (10th Cir. Feb. 6, 2007)
Although the jury stated on the verdict form that the loss due to D’s identity theft conspiracy offense was between $30,000 and $70,000, it was not a 6A violation for the district court, following the PSR, to determine that actual loss was $83,000 and intended loss was $151,000, thus increasing the guideline level. Instead of just saying “You lose, we already decided this one,” the 10th also says that after all, the jury was only asked to decide actual loss, but then cites to the jury instruction where the jury was instructed on attempted loss (OK, maybe there is a difference between intended loss and attempted loss....). The 10th also rejected his 6A challenge to level of proof and jury required to establish criminal history.
Facts supported guideline role enhancement: although the district court did not specifically find that D organized or led his co-conspirators, it is clear that he “exercised management responsibility over the critical property of the conspiracy (i.e., the fake Oklahoma driver's licenses), and shared with [his co-D] the critical decision-making authority.”
As passenger in the vehicle that eluded arrest, D “aided and abetted” the reckless endangerment flight, and the 10th upholds the bump up on his guidelines.
10th Cir. Unpublished cases
In a spate of unfortunate decisions–unfortunate policy-wise and fairness-wise–the 10th rejects challenges by BOP inmates who were eligible for or had completed the in-custody drug treatment program but did not get the sentence reduction. Granting the reduction is discretionary with the BOP, and BOP policy to consider possession of firearm offenses an ineligible "crime of violence" is reasonable. (Following Martin v. Rios, 472 F.3d 1206 (10th Cir.2007)).
posted by Anonymous at 8:53 AM
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