Tuesday, October 29, 2013

Real Estate Investment Fraud Case Results in UPward Variance for Non-Criminal Conduct!

In this case, the defendant pled guilty to wire fraud in connection with a real estate investment scheme. The parties reached an agreement on defendant's sentencing guidelines and the loss amount, taking into account that some of the losses were not due to defendant's conduct at all, but rather, due to the investments themselves. 

The district court did not accept the parties' loss conclusions and applied a much higher loss amount and varied upward nearly double from the joint guideline recommendation of sixty months in custody.  The court used the rational for the upward variance as the impact on the victims' lives (even though much of the losses were simply investments that didn't work out).  The issue for the Ninth Circuit was whether the "life-destroying" facts of the victims proper for the court to consider in varying upward.  The Ninth said yes - the Court could consider these other factors.

Judge Tashima wrote a very strong dissent on this issue, citing procedural error in imposing an upward variance on the basis of investor losses that were not attributable to the defendant's criminal conduct.

United States v. Christensen, 2013 WL 5583827, *10 (9th Cir. Oct. 11, 2013)