Wednesday, September 06, 2006

Court Vacates Below-the-Guidelines Sentence Without Government Post-Sentence Objection

US v. Curry: Curry sold gold coins on eBay. Problem was, he "sold" coins which he never had in his possession. When the deals began to fall apart and jilted buyers complained, the FBI came calling. Curry was charged and convicted by a jury of multiple counts of mail fraud, wire fraud, and unlawful monetary transactions. At sentencing, Curry's Guideline range came out to be 41 to 51 months. However, the district court imposed a sentence of 12 months on each count (served concurrently), along with 12 months of home confinement, following Curry's argument for a Booker variance. The Government appealed the sentence and Curry cross-appealed the district court's denial of his motion for acquittal.

The Fourth rejected Curry's challenges to his conviction, while upholding the Government's challenge to the sentence. The court held that the evidence was sufficient to sustain Curry's convictions, rejecting his arguments that the Government failed to prove the specific state date of his fraudulent scheme and that he acted in good faith, as he intended to pay all the jilted buyers back. As to the sentence, the court followed Green and concluded that a variance for the reasons noted by the district court (that Curry didn't begin his eBay sales with malicious intent and his presentence efforts at restitution) was unreasonable.

Most notably, the court held that the proper standard of review for the sentence was unreasonableness, rather than plain error, even though the Government failed to object to the sentence once imposed. The Government had made it clear what it's position on sentencing was (within the Guideline range, of course) and any objection after the district court announced sentence would be futile.

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