United States v. Herrera, No. 19-50181 (9th Cir. 2020)
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The Ninth Circuit affirmed defendant's sentence for mail fraud stemming from his involvement in a lucrative unemployment-fraud scheme. The panel held that the evidence supported the district court's finding that the losses exceeded $3.5 million and losses exceeding $3.5 million merit an 18-level enhancement under USSG 2B1.1(b)(1)(J). In this case, although the district court cited the correct sentencing provision, it incorrectly stated that it was imposing a 16-level enhancement. However, despite this misstatement, the panel held that it was not error for the district court to apply the 18-level enhancement. The panel also held that the evidence supports the district court's imposition of a leadership-role enhancement under USSG 3B1.1(b) where defendant was a leader within the unemployment-fraud scheme, and he was properly treated as such at sentencing.
Finally, the panel held that state government agencies who suffer losses that are included in the actual loss calculation under USSG 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in USSG 2B1.1(b)(2)(A)(I). Therefore, the panel held that the district court did not err in applying an enhancement for 10 or more victims because there can be no doubt that EDD suffered losses and because EDD is properly considered a victim under section 2B1.1(b)(2)(A)(i).
Court Description: Criminal Law. The panel affirmed a sentence for mail fraud arising from a lucrative unemployment-fraud scheme from which the defendant and his brother collected millions of dollars. Reviewing for plain error, the panel held that it was not error for the district court to apply the 18-level enhancement set forth in U.S.S.G. § 2BG1.1(b)(1)(J) for losses exceeding $3.5 million, which was supported by the evidence, despite the district court’s misstatement that it was imposing a 16- level enhancement. The panel held that the district court did not abuse its discretion in imposing a leadership-role enhancement under U.S.S.G. § 3B1.1(b). Addressing a question of first impression in this circuit, the panel held that state government agencies who suffer losses that are included in the actual loss calculation under U.S.S.G. § 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in U.S.S.G. § 2B1.1(b)(2)(A)(I). The panel concluded that the district court did not err in applying the enhancement for “10 or more victims” because there can be no doubt that EDD suffered losses, and it is undisputed that if EDD was properly counted as a victim, the enhancement applies. UNITED STATES V. HERRERA 3
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