United States v. George, No. 18-50268 (9th Cir. 2020)
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USSG 2B1.1(b)(2) requires the sentencing court to determine whether the victims suffered a loss that was significant in light of their individual financial circumstances. The Ninth Circuit affirmed defendant's sentence for mail fraud, wire fraud, and conspiracy. Defendant co-owned and operated companies that defrauded nearly 5,000 homeowners out of millions of dollars.
The panel affirmed the district court's imposition of a six-level sentence enhancement for an offense that resulted in substantial financial hardship to 25 or more victims under USSG 2B1.1(b)(2)(C). In this case, some of the victims lost their homes, some filed for bankruptcy, and many others borrowed money to avoid foreclosure, fell further behind on mortgage payments, renegotiated their loans on worse terms, or paid additional penalties and fines. The panel also held that the district court did not have to identify specific victims by name even if it had been asked to do so. Furthermore, it was sufficient for the government to produce evidence for enough of the victims to allow the sentencing court reasonably to infer a pattern. Finally, the panel held that the sentence was not substantively unreasonable and the restitution order did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000).
Court Description: Criminal Law. The panel affirmed a sentence for mail fraud, wire fraud, and conspiracy, in a case in which the defendant co-owned and operated companies that defrauded nearly 5,000 homeowners out of millions of dollars. The panel held that U.S.S.G. § 2B1.1(b)(2)(C), which provides for a six-level enhancement if the offense “resulted in substantial financial hardship to 25 or more victims,” requires the sentencing court to determine whether the victims suffered a loss that was significant in light of their individual financial circumstances. The panel held that the district court did not abuse its discretion in concluding that 25 or more victims suffered substantial financial hardship. The panel wrote that the district court would not have been required to identify specific victims by name even if it had been asked to do so, and that it was sufficient for the government to produce evidence for enough of the victims to allow the sentencing court reasonably to infer a pattern. The panel held that both but-for and proximate causation were present. The panel held that the district court did not abuse its discretion in imposing a sentence within the Sentencing Guidelines range. The panel wrote that, as the defendant recognizes, United States v. Green, 722 F.3d 1146 (9th Cir. 2013), forecloses his argument that the restitution order violated Apprendi v. New Jersey, 530 U.S. 466 (2000), UNITED STATES V. GEORGE 3 because the judge, rather than a jury, determined the amount of the loss caused by the defendant.
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