10-1351 U.S. v. Locke

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Sentencing
Relevant conduct; restitution

Where the government dismissed many counts of fraud without presenting evidence, it was error for the district court to include the fraud in establishing relevant conduct and ordering restitution without any factual findings.

“The district court’s findings on the record were insufficient to answer that question and support the restitution order it pronounced. The district court never discussed its restitution decision during sentencing. It did increase the offense level by two points based on the involvement of more victims than those listed in the counts of conviction, but it did not explain how those victims were directly harmed by Locke’s scheme or schemes. See Randle, 324 F.3d at 556. It did state that Locke’s ‘offense took place over the two-year period with all of the attendant dishonesty contained within this scheme.’ (Sent. Tr. at 38.) But a subsequent statement may cut against the suggestion that a single scheme existed: ‘I don’t think [the guidelines] take into account the length of time over the course of two years and the number of separate wire frauds.’ Id. at 41 (emphasis added). The district court made no findings as to (1) whether the counts involved individual schemes, as suggested by the discrete charges, or were part of an overall scheme or pattern of criminal conduct; (2) the scope of Locke’s scheme or pattern of criminal activities, if a single scheme or pattern is found; and (3) which victims were harmed by Locke’s conduct within that scheme or those individual schemes.”

Affirmed in part, and Reversed in part.

10-1351 U.S. v. Locke

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Kanne, J.

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