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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 Had Locke not withdrawn the objection, the court would have taken evidence regarding both the amount placed at risk, the fair market value of the collateral and relevant conduct in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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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