Thursday, December 10, 2020

1. US v. Gainza, No. 19-10430 (12-8-20)(McKeown w/Nguyen & Vitaliano). The 9th vacated and remanded for resentencing after the court erroneously enhanced a sentence for the number of victims. The enhancement came because of an ATM skimmer scheme. The government had the number of people who used the ATM on camera; but the user number does not translate into the success rate. The defendants did not make fraud claims on all the people who used the ATMs. Sometimes the skimmers were discovered; other times things went awry. The defendants were caught. At sentencing, the court simply multiplied the total (852) of users by $500. This resulted is a loss range which increased the offense range by 12.

The 9th found no evidence of 852 victims. The minimum number was 37 (number of fraud claims). The government could have used an expert to testify about the success rate in the schemes; or evidence of similar frauds and the percentage of losses; or some estimate grounded on evidence.  However, the government and court simply could not use the number of victims that appeared on the camera at the ATMs.

Congrats to David Porter, AFPD, Cal E (Sacramento)(for Gainza) and Kresta Daly, CJA, for co-defendant.

The decision is here:

2. US v. Sineneng-Smith, No. 15-10614 (12-8-20)(Tashima w/Berzon & Hurwitz). The 9th affirms convictions on 1324 immigration offenses for encouraging and inducing aliens to remain in the US for financial gain. On remand from SCOTUS, for reconsideration, after “shorn[ing]” a finding of constitutional over breadth, the 9th found that government presented sufficient evidence that the defendant misled and induced the victims into believing they could get a green card from a 245i Labor Certification. They could not: they retained the defendant believing they moved to the front of the queue for permanent residency. They were encouraged to keep applying for a Labor Certificate all the while standing in front of a legally closed door. This misleading was fraudulent and fell within the statute.

The decision is here:


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