In U.S. v. Patterson, No. 09-13354 (Feb. 8, 2010), the Court found no plain error in a calculation of “loss” for sentencing enhancement purposes under the Guidelines that resulted in dollar amount twice as large as the amount of restitution.
The Court noted that “loss” encompasses “actual loss,” or “intended loss,” whichever is greater. In calculating “intended loss,” the sentencing court uses the “reasonable mathematical limit” of an offender’s scheme; “A criminal pays the price for the ambition of his acts, not their thoroughness.” “Restitution, on the other hand, must be based on the amount of loss actually caused by the defendant’s conduct.” Consequently, the law does not require “a simple symmetry between loss and restitution.”
The Court declined to reach Patterson’s ineffective assistance of counsel claim, based on the failure to object to the sentence, noting that § 2255 is the “preferred means” for bringing such claims.