Tuesday, June 09, 2015

Restitution reversed, but loss calculation affirmed

U.S. v. Alisuretove, 2015 WL 3541213 (6/8/15)(Published) - The Tenth Circuit panel reverses the district court's restitution order under the Mandatory Victims Restitution Act. Mr. Alisuretove pled guilty to a conspiracy offense which the indictment limited to five financial institutions. In calculating restitution, however, the presentence report and the district court treated the offense as an unlimited wire fraud conspiracy. No supporting factual findings were made and the record did not show whether additional financial institutions were directly and proximately harmed by the wire fraud committed on the five financial institutions listed in the indictment. Further, the record did not show whether losses on which restitution was ordered were incurred as a result of criminal acts committed within the time frame of the charged conspiracy. Consequently, the Tenth remands for resentencing with respect to restitution.

The district court's calculation under U.S.S.G. ยง 2B1.1(b)(1) of the amount of loss associated with Mr. Alisuretove's conspiracy conviction--including loss resulting from co-conspirators' placement of skimming devices on convenience store gas pumps to obtain debit card info--is affirmed. The Guidelines provide that a defendant involved in a joint criminal undertaking may be held responsible for relevant conduct that includes all reasonably foreseeable acts of his co-conspirators to further the conspiracy. And by pleading guilty to conspiracy, Mr. Alisuretove admitted to all material facts alleged in the charge.