Embezzling Doctor's Conviction Upheld Because Reduction in the Amount of Loss for Money Returned By the Defendant to the Victim Only Applies When the Actual Loss Amount is Used

United States v. Massam, No. 12-15924, from SDFla

 

Chief Circuit Judge Carnes joined by Circuit Judge Wilson and District Judge Dalton (MDFla)

 

Summary: In a typically literate opinion, Chief Judge Carnes begins by invoking a quotation from Alexander Pope to explain the defendant’s appeal of his sentence imposed pursuant to his conviction for the embezzlement of the ERISA pension funds of his employees.

 

The defendant contended that the loss amount used for purposes of calculating his Sentencing Guidelines Range was wrong.  The amount of loss used under the Guidelines is the actual loss or intended loss, whichever is greater.  Specifically, he claimed that the amount of loss should have been reduced by the amount of a supersedeas bond which was paid to his ex-wife, who was owed certain amounts of the pension funds due to a divorce settlement.

 

The panel concluded that the guidelines commentary provided that the amount of loss shall be reduced by money returned by the defendant to the victim before the offense was detected.  Since a credit against loss for purposes of the Guidelines required a victim (because it would otherwise be impossible to return money to the victim!), this credit applied only to a Guidelines calculation of actual loss.  Because the intended loss amount was used for the defendant’s Guidelines, his argument was inapposite. His ex-wife was also not a victim, because she suffered no actual loss either.