A helpful reader made sure I did not miss the interesting Third Circuit panel ruling this past week in US v. Kirschner, No. 20-1304 (3d Cir. April 22, 2021) (available here), discussing loss calculations under the fraud guidelines. There are lots of element to the Kirschner opinion, but the introduction provides an effective overview:
In 2018, Jonathan Kirschner pleaded guilty to one count of impersonating an officer acting under the authority of the United States and one count of importing counterfeit coins and bars with intent to defraud. At sentencing, the District Court applied to Kirschner’s sentence three enhancements pursuant to the U.S. Sentencing Guidelines — a 2-level enhancement because Kirschner’s fraud used sophisticated means; another 2-level enhancement because Kirschner abused a position of public trust to facilitate his crimes; and a 22-level enhancement because the “loss” attributable to his scheme was greater than $25 million but less than $65 million, even though it grossed only about one one-thousandth of that.
Kirschner appeals the District Court’s judgment of sentence and challenges the three enhancements it applied. For the reasons that follow, we will vacate Kirschner’s sentence and remand for resentencing. While the District Court was well within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, we conclude it clearly erred in applying the 22-level enhancement for loss, and we cannot say that the error was harmless.
I have always thought the federal fraud guideline deeply misguided due to commentary basing offense severity calculations on the greater of intended or actual loss (and the guideline is also deeply problematic for placing extreme emphasis on "loss" and by only requiring proof by a preponderance). In this case, a focus on intended loss meant a guy who netted only about $30,000 selling fake goods when caught was sentenced as if he had netted $36 million!
Ultimately, the panel here concluded intended loss was not subject to the "deeper analysis" needed to justify the district court's calculation. But, for those following broader debates over the basic validity of guideline commentary, the panel had this interesting aside:
Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly. Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended. By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.” United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring). But Kirschner assumes the comment is correct, and so we will too.
This kind of aside reinforces my sense — or perhaps I should just say my hope — that it is only a matter of time before the US Supreme Court will consider, in some context, the validity of guideline commentary that arguably “sweeps more broadly than the plain text" of the guideline.
Comments
Post a Comment