In U.S. v. Foley, No. 06-11145 (Nov. 21, 2007), on a government appeal of a sentence of a defendant convicted of fraud, the Court reversed the sentence and remanded for resentencing.
The Court agreed with the government that the district court erred in believing that the forfeiture amount found by the jury bound the court when calculating the amount of "loss" for sentencing purposes. The Court noted that forfeiture and loss are distinct, and require distinct calculations. Loss takes account of "relevant conduct." The sentencing court therefore "abdicated its responsibility" to make independent Guideline findings.
The Court also found that the district court erred, when calculating the number of victims, in relying on the number of persons who had responded to a probation office questionnaire. The Court noted that these responses did not "establish how many people sustained the loss."
The Court further found that the district court erred when it abdicated its responsibility to determine whether the defendant obstructed justice.
The Court noted that these cumulative errors were not harmless, since they resulted in a sentence 250 months below the bottom of the otherwise potentially applicable Guidelines range – a factor the district court must still consider.
The Court rejected all of Foley’s arguments on cross-appeal. The Court noted that the restitution statute now defined a "victim" more broadly than before, therefore making Foley liable to "any victim" of his fraud scheme. The Court rejected all of Foley’s remaining arguments as meritless.