Sixth Circuit - Economic Crimes

United States v. Woodson, 960 F.3d 852 (6th Cir. 2020). A consistent “home base” from which defendants carry out key aspects of their criminal scheme does not preclude a §2B1.1(b)(10) enhancement for relocating a fraudulent scheme to another jurisdiction to evade law enforcement.

United States v. Igboba, 964 F.3d 501 (6th Cir. 2020). The court did not err when it attributed $4.1 million in losses to the defendant in a tax fraud cause even though some losses were linked to the defendant by a single piece of evidence. Also, the sophisticated means enhancement, pursuant to §2B1.1(b)(10), applied based upon the defendant’s acquisition of taxpayer personally identifying information and his use of a virtual private network, the Tor browser, the dark web, multiple bank accounts and email aliases, and corporate shell companies.

United States v. Kozerski, 969 F.3d 310 (6th Cir. 2020). In a set-aside procurement-contract fraud case, §2B1.1 loss excludes the value of the services provided to the victim. In this case, which involved the fraudulent procurement of government contracts set aside for service-disabled veterans, the court did not clearly err when it calculated loss by using the aggregate difference between the defendant’s bid and the next lowest bid.

United States v. Bailey, 973 F.3d 548 (6th Cir. 2020). Section 2B1.1(b)(2)(A)(ii)’s 2-level enhancement for mass-marketing does not apply to word-of-mouth solicitation.

United States v. Bailey, 973 F.3d 548 (6th Cir. 2020). The court applied the wrong legal standard to determine loss under §2B1.1(b)(1). Relevant conduct “is significantly narrower than the conduct embraced by the law of conspiracy,” and to be held accountable for the acts and omissions of others, those acts must be, among other things, within “the scope of the criminal activity that the particular defendant agreed to jointly undertake.”

United States v. Bailey, 973 F.3d 548 (6th Cir. 2020). The court did not err in using conspiracy principles to determine restitution, although it did err in applying those same principles to determine §2B1.1(b)(1) loss. The court could have apportioned loss among codefendants, but it was not required to do so.

United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021). Application Note 3(F)(i) to §2B1.1, which states “loss shall be not less than $500 per access device,” impermissibly expands “loss” in §2B1.1(b)(1) and is thus invalid.

United States v. Nicolescu, 17 F.4th 706 (6th Cir. 2021). In a wire fraud case involving fake car auctions on eBay, the court did not abuse its discretion when it used gain to estimate §2B1.1 loss. The court was not required to use traceable gains, as the defendants argued, and instead properly relied on the defendants’ unencrypted spreadsheet tracking their gains and cross-referencing those gains against victim complaints filed with the FBI.

United States v. Nicolescu, 17 F.4th 706 (6th Cir. 2021). A 2-level enhancement under §2B1.1(b)(4) for receiving and selling stolen property only applies to a professional fence, that is, a person who sells property that others have stolen. This enhancement does not apply to defendants who steal and sell stolen property as part of conspiracy, even when one defendant steals the property and another defendant sells the property.

United States v. Nicolescu, 17 F.4th 706 (6th Cir. 2021). Application Note 2 to §2B1.6, which applies when a defendant is convicted of aggravated identity theft, prohibits the application of any specific offender characteristic for transferring, possessing, or using a means of identification as to any other count of conviction. This application note does not prohibit a 2-level increase under §2B1.1(b)(11)(B)(i) for producing or trafficking a means of identification.

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