In United States v. Cingari, No. 17-12262 (Mar. 17,
2020) (Grant, Jordan, Siler), the Court upheld the forfeiture award and
the defendants’ sentences.
As to forfeiture, the defendants, a married couple, argued
for the first time on appeal that the Supreme Court’s decision in Honeycutt
precluded holding them jointly and severally liable. However, the Court found no plain error because
it was not clear that Honeycutt applied to civil asset forfeiture under
981(a)(1)(C), which independently authorized the forfeiture in this case, and
because Honeycutt turned on the employer-employee relationship and did
not obviously apply to a husband-wife relationship where there was joint
ownership of the proceeds. In a
footnote, the Court noted that the government had attempted to expressly waive
this argument, but that did not relieve the defendants of their burden to show
plain error.
As to the sentence, the defendants, who were convicted of
both mail fraud and falsifying immigration forms, argued that the district
court should have applied 2L2.1 instead of 2B1.1. Although the calculation began with 2B1.1,
since that produced a higher offense level, the defendants argued that the
cross-reference provision in 2B1.1(c)(3)(C) applied. Applying
circuit precedent, the Court rejected that argument, finding that the heart of
the offense conduct was a fraud that more aptly fit 2B1.1 rather than 2L2.1. The Court also found that this analysis was
supported by the commentary governing the cross-reference provision, and there
was no inconsistency with the text of the Guideline. The Court again cast doubt on whether the
rule of lenity applies to the Guidelines but found it unnecessary to resolve that
issue because the language was not grievously ambiguous.
