United States v. Binkholder, No. 15-2125 (8th Cir. 2016)
Annotate this CaseDefendant appealed his sentence after pleading guilty to four counts of wire fraud. The court concluded that, because the district court did not apply one of the two total offense levels specifically contemplated by the plea agreement, defendant's appeal waiver does not preclude this appeal. The court concluded that the district court did not clearly err in determining that defendant's post-plea conduct was inconsistent with a finding that he had accepted responsibility for his offenses. The court concluded, however, that it must reverse and remand so that the district court may determine in the first instance whether M.U. was a victim under the Guidelines and, if necessary, proceed to resentencing. The court further concluded that the district court did not plainly err when determining the amount of restitution owed to A.B. and R.W. Finally, the court declined to consider defendant's claim that he received ineffective assistance of counsel. Accordingly, the court otherwise affirmed the judgment.
Court Description: Kelly, Author, with Bright and Gruender, Circuit Judges] Criminal case - Sentencing. Defendant's appeal waiver did not preclude the appeal as he was sentenced using a higher total offense level than was contemplated in the agreement; the district court did not abuse its discretion by denying defendant an acceptance-of-responsibility reduction based on his post-plea misconduct; while this court's writ required the district court to recognize a particular person as a victim under the Crime Victim's' Rights Act, the writ did not require the district court to find the person as a victim for purposes of the Guidelines; the court cannot, on this record, find that the district court properly determined whether the person was a victim under Guidelines Sec. 2B1.1 such that the person's losses should increase defendant's offense level; on remand, the court should determine the person was a victim under the Guidelines and, if necessary, resentence defendant; district court correctly calculated restitution; claim of ineffective assistance of counsel would not be considered on direct appeal. Judge Gruender, concurring in part and dissenting in part.
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