Monday, January 11, 2010

Inadequate Explanation of Loss Calculations Require Resentencing

US v. Wilkinson: Wilkinson pleaded guilty to conspiracy to defraud the US, mail fraud, and conspiracy to steal trade secrets stemming from a scheme in which he acquired confidential bid information from his company's competitor (via a bribe from someone in that company) in order to secure contracts with the Defense Energy Support Center (DESC). At sentencing, the parties disagreed as to the amount of loss that should be used to calculate Wilkinson's advisory Guideline range and whether DESC had suffered any actual loss that would require Wilkinson to pay restitution. Ultimately, the district court adopted a Guideline loss calculation that left the advisory range at 12 to 18 months (versus 51 to 63 months in the PSR), sentenced Wilkinson to three years of probation, plus a fine an restitution to another victim not at issue in the appeal. The district court did not order Wilkinson to pay any restitution to DESC.

On appeal by the Government, the Fourth Circuit vacated the sentence and remanded for resentencing. The attacks on both the sentence and restitution order rested on the argument that the district court had improperly calculated DESC's losses. The court concluded that the district court "did not provide us anything close to a sufficient explanation of its rationale in making its loss finding with respect to DESC that would enable use to review such finding under the clearly erroneous standard." Thus, the court remanded with specific instructions to revisit the DESC loss issue with more detail and then, if necessary, proceed with resentencing. District

Judge Moon concurred and dissented in parts, arguing that some of the loss amounts were sufficiently detailed to allow for the conclusion that the district court's conclusions were correct with respect to those particular amounts.

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