Sentencing – Amount of loss

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Sentencing – Amount of loss

In sentencing a defendant for his role in a scheme to sell counterfeit art, the district court did not err in calculating amount of loss based on the intended sale prices of the works.

“On appeal, Kennedy rehashes many of the arguments he made regarding loss amount before the district court, including that the documents and records that Inspector Donnelly used for his calculations were not reliable. Specifically, Kennedy contends that Inspector Donnelly’s use of invoices was problematic because the invoices may document sales that were never consummated or sales in which the artwork was returned to Kennedy, as in the case of Linden N. The district court recognized this possibility, however, but noted that even if the invoices might overstate the actual loss, the invoices were evidence of Kennedy’s intent to sell the fake pieces of artwork listed on the invoice, and the invoice amounts were therefore accurate indicators of intended loss. See Dokich, 614 F.3d at 318–19 (noting that unlike with restitution, ‘loss’ for purposes of calculating the offense level for someone convicted of mail
fraud under the Sentencing Guidelines is defined as ‘the greater of actual or intended loss’ under § 2B1.1(b)(1)). Additionally, in arriving at the loss amount, the district court gave only limited weight to Inspector Donnelly’s calculations and primarily relied upon Kennedy’s own admissions regarding the amount he had spent purchasing counterfeit art from just one dealer—$500,000—and then marked up before selling to his customers. Kennedy identifies no problems with the district court’s reliance on these admissions, and we therefore find no error in the district court’s determination that the loss amount exceeded $1,000,000.”

Affirmed.

12-2630 U.S. v. Kennedy

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Bauer, J.

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