Wednesday, November 18, 2009

Intended Loss Amount

Unpublished opinion in United States v. Newson, No. 08–6080 (6th Cir. Nov. 16, 2009). Panel of Judges Moore, Cook, and Ludington (E.D. Mich.). Defendant pleaded guilty to document fraud (18 U.S.C. § 1028(a)(7)). Sentence of 30 months.

Because of lack of factual record regarding the defendant’s intent, the court vacated the sentence and remanded. Defendant used another individual’s Social Security number to complete two separate credit applications in an attempt to purchase automobiles. The first attempt failed when the salesman became suspicious and contacted the individual whose Social Security number the defendant was using. The defendant did not complete the second attempted purchase for unknown reasons. She simply left the dealership after completing the credit application. (The defendant also used the Social Security number to access credit at several retail stores.)

The PSIR calculated the total intended loss as $44,600.03. This total led to a six-level enhancement under Guideline Section 2B1.1(b)(1)(D). Offense level was 13, criminal history IV, range of 24 to 30 months.

Issue: should the district court have included the value of the second automobile in the loss calculation? If an amount is to be included in intended loss, a defendant must have subjectively intended the loss and the defendant must have completed or been about to complete, but for interruption, all the acts necessary to bring about the loss.

Conclusion: not clear that defendant was going to complete the purchase of the second vehicle but for an interruption. Defendant said she completed the credit application and then abandoned her attempt to buy the automobile. She offered to prove, at the sentencing hearing, that the dealership personnel offered her possession of the vehicle, but she refused it. The district court rejected her offer of proof on the point. Appellate court concluded the district court’s refusal was clear error. If defendant refused the vehicle with the intent to abandon the scheme, the value of the vehicle should not have been included in the intended-loss calculation. In such a case, she would not have subjectively intended the loss. Nor would she have been about to complete all the acts necessary to bring about the loss.

Without the value of the second vehicle, the enhancement would have been only four levels.

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