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Eleventh Circuit Discussion of Loss and Restitution in Sentencing for Federal Crimes

Kish Law LLC

Yesterday, the Eleventh Circuit issued an opinion in U.S. v. Patterson. Even though the criminal defense attorney below failed to object to the Presentence Investigation Report (PSI) and Patterson lost his appeal on the plain error standard, this opinion provides a good review of the Eleventh Circuit law regarding intended loss, actual loss, and restitution and the Federal Sentencing Guidelines.

The Guidelines calculate a sentencing range based, in part, on how much ‘loss’ was caused by the defendant’s crime. The sentence is calculated using “intended” loss because a “criminal pays the price for the ambition of his acts, not their thoroughness,” whereas the amount that a criminal must pay back, called “restitution,” “must be based on the amount of loss actually caused by the defendant’s conduct.”

It often is hard to calculate the loss figure, because some fraud crimes result in “actual” loss amounts that differ dramatically from the “intended” loss. That was the problem in this case. This case involved stolen cars, some of which were never recovered and/or owners could not be located, and others were returned to their owners intact. For these reasons, the “intended” loss more than doubled the “actual” loss and restitution. Patterson argued that the loss amount used in sentencing should equal the restitution amount, but the Court rejected his argument, explaining that “cases offer substantial explanations why these figures can diverge.” The Court of Appeals said, “the district court did not err, let alone plainly err.”

The opinion is available here.

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