In United States v. Hackett, --- F.4th ---, No. 22-50142 (9th Cir. 2024), a divided Court affirmed the district court’s judgment in a case in which Andrew Hackett, a stock promoter, was convicted and sentenced for conspiracy to commit securities fraud and securities fraud in connection with the manipulative trading of a public company’s stock.
The district court imposed a 16-level sentencing enhancement under the pre-November 1, 2024, version of U.S.S.G. § 2B1.1(b)(1)(I), which applies if the loss exceeds more than $1.5 million. In doing so, the court relied on intended loss, rather than actual loss.
Hackett argued on appeal that the district court erred by following the commentary to § 2B1.1, which defines “loss” as the “greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A).
The majority reviewed for plain error because Hackett’s objection to the district court’s loss calculation was not sufficiently specific to preserve de novo review. The majority held that the district court’s reliance upon the definition of “loss” set forth in the commentary withstood plain error review because any error was not clear or obvious given this court’s precedent recognizing both actual and intended loss, and because there is a lack of consensus among the circuit courts on this issue.
In a cogent dissent, Judge Berzon explained why the majority was wrong.
