USA V. ROBERT LOFFREDI. NO. 12-1124.
Robert Loffredi appeals his sentence of 78 months’ imprisonment for mail fraud, 18 U.S.C. § 1341. He challenges only the district court’s imposition of a two-level upward adjustment for an offense involving ten or more victims. See U.S.S.G. § 2B1.1(b)(2) (A)(i).
Loffredi owned and operated a securities brokerage firm that offered its customers investments in certificates of deposit, mutual funds, and Treasury bills. Instead of purchasing the investments requested by his customers, however, Loffredi diverted their money toward his own personal expenses and business debts. Over four years he fraudulently misappropriated approximately $2.8 million from his brokerage customers.
On appeal Loffredi argues that we should side with the other circuits that, he believes, have interpreted the guidelines in a way that would exclude his defrauded customers from the victim tally.
The guidelines define “victim” in § 2B1.1(b)(2) as “any person who sustained any part of the actual loss determined under subsection (b)(1).” U.S.S.G. § 2B1.1 cmt. n.1. “Actual loss,” in turn, is defined as “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i).
In United States v. Panice, 598 F.3d 426 (7th Cir. 2010), we held that “[v]ictims whose losses were reimbursed sustained an actual loss for the period of time up until the point at which they were reimbursed” and are therefore properly counted as victims under § 2B1.1(b)(2) along with those who reimbursed them. Id. at 433;
Loffredi argues that we should overturn Panice because, he says, other circuits give better effect to the plain meaning of the language in the guidelines. He points in particular to United States v. Yagar, 404 F.3d 967 (6th Cir. 2005), which involved bank-account holders who temporarily lost funds due to the defendant’s fraudulent withdrawals but were reimbursed by the bank; the Sixth Circuit held that because their losses were “shortlived and immediately covered by a third-party,” the account holders did not sustain any “actual loss,” id. at 970-72.
Other circuits encountering similar circumstances have adopted the same reasoning. See United States v. Kennedy, 554 F.3d 415, 419-22 (3d Cir. 2009); United States v. Conner, 537 F.3d 480, 489-91 (5th Cir. 2008); United States v. Armstead, 552 F.3d 769, 782 (9th Cir. 2008).
have not suffered “any part of the actual loss” for the offense and must not be counted as victims, lest the court engage in improper double counting.
We reject Loffredi’s argument that a plain reading of the word “sustained” compels the conclusion that a victim’s losses must be endured for some minimum period of time.
We stated in Panice that the guidelines’ definition of “victim” contains no inherent temporal baseline and does not require that the loss persist through the time of sentencing. 598 F.3d at 433. We are not persuaded by the reasoning of other circuits that infer such a limitation from the text of the guidelines.
have suffered pecuniary harm that resulted from the offense.
Finally, contrary to Loffredi’s assertions, Paniceso certain and complete that they suffered no actual pecuniary harm.
Loffredi never asserted that his fraud was painless with respect to his customers; he relied instead on an all-or-nothing defense that the customers cannot be victims because they were reimbursed. For the reasons stated, we reject that contention.
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