rejecting a defendant’s argument that the entire value of collateral that he pledged for a legitimate loan should be used to off-set his fraudulent transactions and holding that the collateral should be reduced pro-rata based upon the ratio of the fraudulent transactions to the underlying, legitimate loan
How later courts described this case
- rejecting a defendant’s argument that the entire value of collateral that he pledged for a legitimate loan should be used to off-set his fraudulent transactions and holding that the collateral should be reduced pro-rata based upon the ratio of the fraudulent transactions to the underlying, legitimate loan
- affirming a 65-month upward variance from the advisory guidelines maximum to 300 months of imprisonment under the § 3553(a) factors for bank fraud, in light of the sentencing court’s consideration of the suffering and harm experienced by the 260 homeowners on whose property construction hens were not removed as the result of the defendant’s bank fraud, even though they were not the primary victims of the fraud scheme
- distinguishing Yagar because “[i]n the present case, ... the homeowners had no contract with a third party to cover their loss, nor was the loss short-lived. The homeowners were saddled with many thousands of dollars of debt, often for great lengths of time, while they attempted to have the construction hens removed. Most of the homeowners eventually had to undertake a class-action lawsuit to seek relief’
- concluding that a “bare bones” argument raised in a footnote “is not so undeveloped as to constitute a waiver”
Written by the judges who cited it.
The opinion
ROGERS, Circuit Judge,
concurring.
I concur in all of the majority opinion except for part Il.C.l.b, the last sentence of part II.E.2, and part II.E.3.b. These parts conclude that the district court erred below in the defendant’s favor. The Government, however, commendably conditioned its cross-appeal: if the court of appeals rejects the defendant’s arguments on appeal, the Government would forgo its cross-appeal. Because we do reject defendant’s arguments on appeal, the issues presented by the Government’s cross-appeal have been withdrawn, and we should not reach out to address them.
It is true that part II.E.3.b accepts the Government’s argument that the homeowners were victims under U.S.S.G. § 2B1.1(b)(2) as part of an analysis rejecting defendant’s challenge to the district court’s alleged reliance on U.S.S.G. § 5K2.3 (psychological harm to victims) to impose a sentence 65 months beyond the guideline range. But the Government’s § 2B1.1(b)(2) argument is not necessary to uphold the additional 65 months. We need not decide whether the district court erred in applying § 2Bl.l(b)(2), nor is it necessary for us to decide whether the word “victim” means the same thing under § 5K2.3 (dealing with departures in general) as it does in § 2Bl.l(b)(2) (dealing strictly with “basic economic offenses” such as theft and fraud). I would not reach out to decide either of these issues.
It is clear from the sentencing transcript that the district court viewed the additional 65 months as a variance justified under the § 3553(a) factors. Although the district court reasoned that a § 5K2.3 upward departure was justified, the court did not discuss adding specific amounts of time to Erpenbeck’s guidelines sentence until after *445 it had begun a thorough discussion of the § 3553 factors. After stating the intention to add a total of 65 months to Erpenbeck’s sentence, the court stated, “This adds approximately 28 percent to the length of Mr. Erpenbeck’s sentence as calculated under the Guidelines, and the Court finds this to be appropriate based on the extended nature of the harm and damage caused to Mr. Erpenbeck’s scheme, by the length of time defendant continued to engage in his scheme while at the same time indulging in luxuries and an extravagant lifestyle, and by the necessity of promoting respect for the law.” Even if the added 65 months could nonetheless be considered a departure under § 5K of the Guidelines, the district court at the very least provided an alternative rationale for the same 65 months under § 3553. Any technical error in relying upon § 5K2.3 would therefore be facially harmless. See United States v. Lalonde, 509 F.3d 750, 765 (6th Cir.2007).