In United States v. Herrera, --- F.3d ---, No. 19-50181 (9th Cir. 2020), the Court affirmed a sentence for mail fraud arising from an unemployment-fraud scheme.
The district court calculated the Guidelines as follows: "'The base offense level is 7. The specific offense characteristics increase that by 22 levels. The role in the offense by an additional 3, which gives a subtotal of 32. Reduced by 3 for acceptance of responsibility to 29.' The 22-level specific offense enhancement calculation breaks down as follows: an 18-level enhancement for losses greater than $3.5 million, a 2-level number-of-victims enhancement, and a 2-level sophisticated-means enhancement."
On appeal, the defendant argued the district court miscalculated the amount-of-loss enhancement and improperly imposed the leadership-role and number-of-victims enhancements.
The Court rejected these arguments. First, it held, "the district court merely misstated the amount-of-loss enhancement. After considering the parties’ evidence and arguments, the district court found that the losses exceeded $3.5 million. The evidence supports this finding. Losses exceeding $3.5 million merit an 18-level enhancement. U.S.S.G. § 2B1.1(b)(1)(J)."
Second, it explained, "[o]n this record, we conclude the district court did not abuse its discretion by imposing the leadership-role enhancement. Herrera was a leader within the unemployment-fraud scheme, and he was properly treated as such at sentencing."
Finally, the Court considered "[w]hether the definition of 'victim' under § 2B1.1 includes a state government agency [here, the EDD]." It framed the issue as "whether the definition of 'victim' for § 2B1.1, which does not include government entities in its list of various entities that may be counted as victims, must be interpreted to exclude government entities regardless of whether they suffer loss included in the loss calculation."
The Court held it did not. It relied on the 'presumption of
nonexclusive include.' This presumption holds that 'the word include does
not ordinarily introduce an exhaustive list.'" The Court concluded, "state government agencies who suffer losses that are
included in the actual loss calculation under § 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in § 2B1.1(b)(2)(A)(i)."
