Remand Ordered for Restitution Recalculation

U.S. v. Howard, 2015 WL 1903339 (4/28/2015) (CO) (published): The panel affirms the district court’s loss calculations under USSG §2B1.1(B)(1) but remands because the district court’s restitution calculations were incorrect. Howard was convicted of mortgage fraud. He argued that the method used by the district court to calculate loss under §2B1.1 could not be used to calculate restitution. The court calculated loss under §2B1.1 by adding the unpaid principal balances on each loan held by the victim and subtracting the amounts recovered from sales of the properties securing the loans. Howard pointed out that this method would not reflect the actual loss to downstream noteholders, because they could have paid less than the unpaid balance to acquire the notes. The panel agreed. It said that “[a]lthough the total-loss calculation under USSG § 2B1.1 does not depend on which lender in the chain of title of a mortgage note suffered what loss, that information is necessary to avoid windfalls in awarding restitution.”