When the government must do more, but had its chance

United States v. Bourquin clarifies the government's burden when it seeks to apply a seldom-used guidelines provision. The court's instructions for remand are where defense attorneys may want to take a close look.

Bourquin called in a false tip to the FBI about a plot to attack a former federal prosecutor. He pleaded guilty to maliciously conveying false information concerning an attempt to kill, injure or intimidate the prosecutor by means of fire, under 18 U.S.C. § 844(e).

The PSR recommended a four-level increase under Guidelines § 2A6.1(b)(4)(B) because "the offense resulted in offense resulted in . . . a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense." Bourquin objected. The government attempted to justify the enhancement by noting the steps agencies took based on his false report, arguing that they amounted to more than a typical investigation and required a substantial expenditure of funds.

The court held that the government needed to show more. "Considering § 2A6.1(b)(4)(B)’s text and the government’s burden of proof together with cases analyzing the enhancement, we conclude that to demonstrate the applicability of subsection (B), the government must introduce a full accounting of expenditures or some accounting of expenditures coupled with facts allowing the court to reasonably assess the expenditure of funds required to respond to an offense and whether those funds are substantial."

Perhaps more important is what the court ordered for remand. The government requested a limited remand to provide additional evidence, but the court said no. The government was on notice of Bourquin's objection but failed to provide sufficient evidence, the court reasoned, so the district court should resentence Bourquin based on the existing record, without the four-level enhancement.

This is a useful decision to cite when challenging the evidence supporting an enhancement, to try to limit what the government can do on remand lest the victory on appeal become a loss in the district court.