Tuesday, October 22, 2019

Affirmation of Sentence under Plain-error Standard Highlights Need to Strenously Object to PSR, at Hearing

United States v. McClaflin, 2019 WL 4559348 (10th Cir. 2019, Sept. 20, 2019) (CO). Defendant Karen McClaflin pled guilty to two counts stemming from the operation of a “fix and flip” real estate Ponzi scheme which defrauded investors of more than $14.5 million dollars. At sentencing, the district court calculated the advisory sentencing guidelines at 135 to 168 months’ imprisonment, applied a 6-level enhancement for substantial financial hardship to more than twenty-five victims (USSG § 2B1.1), and then determined a downward variant sentence of 96 months was appropriate.

On appeal, McClaflin argued the district court: (1) abused its discretion by denying her motion for an additional continuance of the sentencing hearing; (2) procedurally erred by imposing the 6-level enhancement based upon victim impact statements; and (3) failed to consider all of the requisite 18 U.S.C. 3553(a) factors. The Tenth Circuit determined the district court did not plainly err when it sentenced McClaflin, therefore it affirmed the judgment and sentence.

One important lesson here is issue preservation. If you want to preserve an objection to an enhancement, object to the application of it in the Presentence Reprot. Object, with specificity, to the PSR’s factfinding that supports the enhancement. File a written objection and restate the objection orally at sentencing. Don’t just rely on the government’s concessions. Here, the government objected to the PSR’s 6-level enhancement, arguing that only a 2-level enhancement was warranted based on the plea agreement (substantial financial hardship to more than 10 victims). Defense counsel joined the government’s objection, but when pressed at sentencing, said “it is the government’s objection…not the defendant’s.” The Tenth said it was okay for the district court to independently find facts for the greater enhancement based on victim impact statements, especially given defense counsel’s failure to adequately preserve any issue regarding their reliability.