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Case Remanded for Sentencing; 'He Did it' Isn't Good Enough

By William Peacock, Esq. on May 02, 2013 | Last updated on March 21, 2019

Gary Washington participated in a credit card scheme. Along with his cohorts, the group purchased stolen credit card numbers off of the internet and imprinted new cards with those numbers. They then used them or sold them to third parties.

There's not really a dispute as to his guilt - he did plead guilty, after all. What is currently in dispute is the appropriate sentence. USSG §2B1.1(b)(2) provides for the following sentencing enhancements:

(A) 2-level increase when the crime involved (i) 10 or more victims; or (ii) was committed through mass-marketing;

(B) 4-level increase when the crime involved 50 or more victims; or

(C) 6-level increase when the crime involved 250 or more victims.

Washington joined the scheme later than others, and by extension, the full victim count of over 6,000 individuals can't be applied to him. Washington pointed this tidbit out, and requested a full accounting of all of his victims. Because he objected to the enhancement, the government bore the burden of establishing the factual basis for the enhancement.

Yet, the district court stated, "That's the figure that's been applied to other defendants. That method of calculation has been used in all of the other cases. The objection is overruled." Because he provided "substantial assistance" to the government, his advisory range was 84-105 months. His actual sentence was 105 months, plus nearly $1 million in restitution and 3 years of supervised release.

The burden of proof for sentencing enhancements is a preponderance of the evidence. In this case, the government failed to introduce any evidence. The government "proved" the facts for this enhancement through bare assertions only. That's obviously not good enough.

Is it likely that Washington's actions hurt more than 250 people? Certainly. All it would have required was what Washington requested - a list of affected cardholders and the dates their information was stolen.

While the court's holding is good news for Washington, it's not all good news. On remand, the court held that because the government had the opportunity to prove the six-level enhancement once, and declined to do so, that they should not get another chance. However, because Washington admitted, in the course of his appeal, to injuring more than 10 people, the two-level enhancement still applies.

That should ensure a shorter, albeit still quite lengthy, sentence.

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