01-4084 U.S. v. Lane

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IT IS ORDERED that the motion for release pending appeal is DENIED. Rovner, J., dissenting:

“The loss-calculation issue Lane raises on appeal is a “substantial question” sufficient to warrant his release. Other circuits are divided. Some support the district court’s calculation. See, e.g., United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998); United States v. Wolfe, 71 F.3d 611, 616-17 (6th Cir. 1995); United States v. Wilson, 980 F.2d 259, 261-62 (4th Cir. 1992). However, others support Lane’s “net loss” argument. See, e.g., United States v. Wells, 127 F.3d 739, 748-49 (8th Cir. 1997); United States v. Wright, 60 F.3d 240, 242 (6th Cir. 1995); United States v. Gallegos, 975 F.2d 710, 712-13 (10th Cir. 1992); United States v. Kopp, 951 F.2d 521, 535-36 (3d Cir. 1992).

“It may well be that after a full hearing on the merits, this court will affirm the district court’s loss calculation, but at this juncture, it is our task to assess whether he has raised a “close” question. The division of existing authority makes it plain that he has done so. If this court ultimately agrees with Lane that his victims’ actual losses were zero, his sentence would likely be substantially reduced from 30 months to a 0-6 month range. It is therefore entirely possible that, by the time this appeal is resolved, Lane would have already served far more than the maximum sentence while awaiting this court’s decision. See 18 U.S.C. sec. 3143(b).

For those reasons, I would grant Lane’s motion for release pending appeal.”

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Per Curiam