USA v. Ruth Arnao, No. 09-3390 (3d Cir. 2011)

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This opinion or order relates to an opinion or order originally issued on August 23, 2011.

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PRECEDENTIAL IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ Nos. 09-3388, 09-3389 _____________ UNITED STATES OF AMERICA, Appellant/Cross-Appellee, v. VINCENT J. FUMO, Appellee/Cross-Appellant. _____________ No. 09-3390 _____________ UNITED STATES OF AMERICA, Appellant, v. RUTH ARNAO, Appellee. _____________ On Appeal from the District Court for the Eastern District of Pennsylvania (No. 06-CR-00319) District Judge: Honorable Ronald L. Buckwalter Argued May 25, 2011 Before: FUENTES, GARTH, NYGAARD, Circuit Judges (Opinion Filed: August 23, 2011) Zane David Memeger, Esq. Robert A. Zauzmer, Esq. [ARGUED] John J. Pease, Esq. Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Appellant/Cross-Appellee Samuel J. Buffone, Esq. [ARGUED] BuckleySandler LLP 1250 24th Street NW, Suite 700 Washington, D.C. 20037 Peter Goldberger, Esq. 50 Rittenhouse Place Ardmore, PA 19003 Counsel for Appellee/Cross-Appellant Fumo Patrick J. Egan, Esq. [ARGUED] Eric E. Reed, Esq. Fox Rothschild LLP 2000 Market Street, 10th Floor Philadelphia, PA 19103 Counsel for Appellee Arnao ORDER AMENDING OPINION FUENTES, Circuit Judge IT IS HEREBY ORDERED that the Opinion filed on August 23, 2011 shall be amended. A new footnote #12 will be inserted on page number 59 at the end of the second paragraph under Section A. The text of the footnote is as follows: Arnao also joins in Fumo s arguments opposing the Government s contention that the District Court erred in failing to apply a 2-level sophisticated means enhancement with regard to the Citizens Alliance fraud. Because we find that the District Court abused its discretion in ruling that the Citizens Alliance fraud did not involve the use of sophisticated means, the same finding of abuse of discretion applies in Arnao s sentence. Accordingly, the 2b1.1(b)(9)(C) additional enhancement of 2 levels applies in the Guideline calculation for Arnao as well as Fumo. The numbering of all subsequent footnotes shall be adjusted accordingly. IT IS FURTHER HEREBY ORDERED that the opinion shall be amended to delete the next to last sentence in Section A on page 59 that reads Because these revised calculations create a loss that is greater than $1,000,000, Arnao will receive a 2-level increase in her base offense level under § 2B1.1(b)(I) , and replace it with the following sentence: Because these revised calculations create a loss that is greater than $1 million, Arnao will receive an additional 2level increase (thereby totaling 16 levels) in her base offense level under §2B1.1(b)(I). By the Court, /s/ Julio M. Fuentes Circuit Judge DATED: September 15, 2011 tmk/cc: Peter Goldberger, Esq. Dennis J. Cogan, Esq. Samuel J. Buffone, Esq. Robert A. Zauzmer, Esq. John J. Pease, III, Esq. Edwin J. Jacobs, Jr., Esq. Stephen F. Funk, Esq. Patrick J. Egan, Esq.