Friday, February 29, 2008

U.S. v. Garro, No. 06-50513 (2-28-08). Sometimes you have to be shocked by the greed, and not the defendant's. Investers were promised a 100% return on their investments, and then 200%. It was like a hedge fund on steroids. If it seemed too good to be true, it was. Thirty-seven million dollars and change later, the investers were crying foul. There was a trial, and conviction (even after the defendant testified about the volatility of business . . . win some, lose some). At sentencing, the defendant got 135 months, which was a three-level departure from the guidelines. The 9th did not have much sympathy for his appeal, rejecting arguments against the adjustments for sophistication, obstruction of justice (testimony), use of another (secretary), and the burden of proof. The 9th, on that issue, held that clear and convincing is appropriate if there is uncharged conduct, but here the defendant was sentenced on the convicted counts. Moreover, this was a plain error review. The 9th finds the sentence reasonable after 3553 considerations.

U.S. v. Barsumyu, No. 07-50251 (2-28-08). The defendant got 21 months for a scheme to defraud credit cards and the defendant had a device making machine. The 9th upheld the sentence as reasonable, embracing a "holistic" approach to assessing the sentence and guidelines rather than adjustment by adjustment or factor-by-factor, so long as the guidelines are correct and all factors considered. The SR conditions lead to a remand because the court imposed no contact or use of computers anywhere, anytime, any circumstances. The 9th thought this a little extreme under the circumstances and facts, and the use of computers in our economy.


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