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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 Had Locke not withdrawn the objection, the court would have taken evidence regarding both the amount placed at risk, the fair market value of the collateral and relevant conduct in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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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