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Woman waived challenge to amount of loss attributable to her conduct

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The 7th Circuit Court of Appeals affirmed the 57-month sentence for a woman involved in a real estate fraud scheme, finding she waived the issue regarding the amount of loss attributable to her conduct.

Donella Locke was charged with 15 counts of illegal conduct, but 10 counts were dismissed upon Locke’s motion because the government couldn’t present any evidence on those counts. The presentence investigation report calculated a loss of more than $2.3 million based on all of the properties underlying all 15 counts against Locke, including those that formed the basis of the dismissed counts. She initially objected, but then her attorney withdrew the objection.

Locke was sentenced to 71 months and ordered to pay the full loss amount calculated in the report. She appealed, and the 7th Circuit remanded for resentencing. Before resentencing, she successfully petitioned for the government to not present any new evidence at the resentencing proceeding. Her sentence was reduced to 57 months because the court could not consider the enhancement for offenses involving 10 or more victims. Her restitution amount was reduced to approximately $340,000.

Locke appealed again, this time arguing the District Court erred when it failed to reduce the loss amount incurred as a result of her convicted conduct by the amount the victims received when they sold the real estate that secured the fraudulently obtained loans.

The 7th Circuit judges noted this case “takes on an unnecessarily complicated pallor by co-mingling the concepts of loss and restitution. … The confusion in this case comes from the fact that although Locke waived any right to ask the appellate court to reconsider the amount of loss, on remand, the district court was required to reconsider restitution.”

“Locke was free to preserve a challenge to the loss amount based on the fair market value of the collateral at the time of the first sentencing,” Judge Ilana Rovner wrote. “Instead, she made a tactical decision to withdraw any objection to the loss amount. Had Locke not withdrawn the objection, the court would have taken evidence regarding both the amount placed at risk, the fair market value of the collateral and relevant conduct in determining the amount of loss. By waiving the objection, the district court had no reason to consider either matter and no evidence was presented.”

“Although it is true the application notes to U.S.S. G. 2B1.1 instruct that loss amounts also should be offset by the collateral, the issue of loss had been waived. Had it not been waived, the district court could have considered the evidence about sale of the homes to determine the amount of offset of the collateral, but then the relevant conduct of the unconvicted counts would also have been fair game. Locke cannot argue that the court should have considered evidence to lower the amount of loss, but not to consider conduct that surely would have increased the amount of loss. That smacks of wanting to have one’s cake and eat it too.”

The case is United States of America v. Donella Locke, 11-3743.
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

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