United States v. Horob, No. 11-30119 (9th Cir. 2013)
Annotate this CaseDefendant, a livestock buyer and cattle rancher, was convicted of false statements to a bank, bank fraud, wire fraud, money laundering, bankruptcy scheme to defraud, and aggravated identity theft. Defendant's convictions stemmed from his involvement in a scheme to secure loans with cattle he did not own and promises to use these loans for profitable business enterprises. The court overturned the convictions of false statements to a bank and aggravated identity theft, affirming defendant's convictions on the remaining counts. In this second appeal, the court held that defendant was not entitled to the presumption of vindictiveness because the district court did not impose a more severe sentence on remand; defendant failed to show actual vindictiveness on the part of the district court; defendant failed to show that the district court abused its discretion in finding over $5 million in relevant conduct losses; defendant failed to show that his fraud scheme was not sufficiently complex to warrant a sophisticated means enhancement; and defendant has not met his burden of showing that the trial court's certification of the transcripts was clearly erroneous. Accordingly, the court affirmed the district court's resentencing of defendant.
Court Description: Criminal Law. The panel affirmed the district court’s imposition of the same total sentence on remand for resentencing for bank fraud, wire fraud, money laundering, and bankruptcy scheme to defraud, after this court in a prior appeal overturned the defendant’s convictions of false statements to a bank and aggravated identity theft. The panel held that the presumption of vindictiveness does not apply when a district court does not impose a more severe overall sentence on remand, even when as here the vacated conviction carried a mandatory consecutive sentence. The panel also held that the defendant failed to show actual vindictiveness. The panel held that the district court properly considered as relevant conduct uncharged loans that were part of a common scheme with the offense of conviction, that the district court did not err in applying a sophisticated means enhancement, and that the district court did not err in rejecting the defendant’s challenge to the accuracy of the trial transcripts.
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