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USSG 2B1.1 – Honest Services Fraud “Value of Benefit Received” Explained

United States v. Harper, No. 14-2701.   The defendant pleaded guilty to fraud consisting of her having abused her position as a member of a Chicago public-school board by accepting kickbacks of more than $500,000 from bus companies to which she steered transportation contracts worth $21 million. The parties stipulated that the value of the benefit received from the fraud was between $7 and $20 million.    Honesty

The guidelines in effect at the time required a 20-level enhancement for honest services fraud when “the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest,” was between $7 and $20 million. U.S.S.G. §§ 2C1.1(b)(2), 2B1.1(b) (2012).

“The value of `the benefit received or to be received’ means the net value of such benefit.” U.S.S.G. § 2C1.1, comment 3.

The defense argued that the guidelines sentence, which had provided the starting point for the judge’s determination of the sentence to impose, overstated the seriousness of the defendant’s offense because the value of the benefit of her crime had been near the low end of the $7-to-$20 million range. See U.S.S.G. § 2B1.1, comment 20(C); United States v. Kappes, 782 F.3d 828, 864 (7th Cir. 2015) (sentencing judge must address the defendant’s principal arguments in mitigation).

Since the parties had stipulated that the value of the benefit from the fraud was between $7 and $20 million, it may seem odd that the parties spent so much time at the sentencing hearing arguing over what the actual amount was.

But as the defendant’s brief explains, “While Ms. Harper did not persist in her argument that the guideline enhancement for the value of the benefit received was wrong, she made her arguments regarding the value of the benefit received as a mitigating factor for the district court to consider when imposing a sentence using the § 3553(a) factors. Ms. Harper’s argument was that the 20-level enhancement significantly overstated the seriousness of the offense and the district court should consider that overstatement when imposing sentence.”


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