United States v. Morris, No. 12-50302 (9th Cir. 2014)
Annotate this CaseDefendant pleaded guilty to wire fraud and making a false statement on a loan application. On appeal, defendant challenged the district court's imposition of a 16-level increase to defendant's base offense level based on that court's calculation that the banks suffered a loss of over a million dollars. The court held that, in a mortgage fraud case, loss under U.S.S.G. 2B1.1(b) is calculated in two steps. First, calculating actual or intended loss allowed for a reasonable foreseeability analysis although the actual loss generally consisted of the entire principal of the fraudulently obtained loan. Second, crediting against the actual or intended loss the value of any collateral recovered or recoverable, did not permit a foreseeability analysis. Rather, the value of the collateral was credited against the amount of the loss calculated at the first step, whether or not the value of the collateral was foreseeable. The court affirmed the sentence because the district court followed this rule in calculating the loss attributable to defendant as $1,033,500.
Court Description: Criminal Law. The panel affirmed a sentence in a mortgage fraud case in which the defendant contended that the district court erred in calculating the banks’ loss under the Sentencing Guidelines. The panel held that, in a mortgage fraud case, loss under U.S.S.G. § 2B1.1(b) is calculated in two steps. The first step is to calculate the greater of actual or intended loss, where actual loss is the reasonably foreseeable pecuniary harm from the fraud, which will almost always be the entire value of the principal of the loan. The second step is to apply the “credits against loss” provision and deduct from the initial measure of loss any amount recovered or recoverable by the creditor from the sale of the collateral, whether or not the value of the collateral was foreseeable.
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