This appeal presents the question of whether it is error for a court to sentence a defendant under a Guidelines calculation of intended loss that is more than double the amount of restitution ordered in the same case.  We conclude that the facts of this appeal do not present the plain error that appellant asserts.  We also reject appellant’s claim of ineffective assistance of counsel because the record is not sufficiently developed and collateral attack is the preferable avenue for such challenges.  Therefore, we affirm the judgment of the district court.

This opinion provides a good review of the Eleventh Circuit law regarding intended loss, actual loss, restitution and the Federal Sentencing Guidelines. The Guidelines calculate a range based on how much loss was caused by the defendant’s crime. The sentence is calculated using intended loss, whereas the amount that a criminal must pay back, called restitution, is based on the amount of loss actually caused by the defendant’s conduct.

Some fraud crimes result in actual loss amounts that differ greatly from the intended loss. That was the problem in this case. This case involved stolen cars, some of which were never recovered 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, a “criminal pays the price for the ambition of his acts, not their thoroughness.”

White Collar Sentencing Issues

Posted by Richard A. Grossman