Appellate Law

CA1: individualized loss determinations, Booker, and ID theft

By S. COTUS

US v. Diaz-Correa, No. 06-2721 (unpublished).  Now why the heck is this unpublished?  This was a Booker remand in an ID theft case.  Now it is back.  However, it comes down to some very specific Guidelines issues.  Most of which are reviewed for plain error view, and result in another remand.

• Regarding a USSG § 2B1.1.(b)(3) enhancement for "theft from the person of another." where there is no physical taking of the property, no enchantment is possible under United States v. Pizarro-Berríos, 448 F.3d 1, 10-11 (1st Cir. 2006).  But, this wasn?t plain error, and there were some law-of-the-case issues.  However, he is out of prison, so the First says that on a remand they should be vacated even though they might not have any consequence by themselves.
• But, where a stipulation between the government and the defendant is based on an error of law, it isn?t as binding.  The first says that a loss amount stipulation might have mislead the District Court into thinking that it didn?t have to "make an individualized determination regarding the amount of loss [and number of victims] attributable to, or reasonably foreseeable by [Díaz].?  But, the law is that such determinations are required.      

Full post as published by Appellate Law and Practice on August 04, 2008 (boomark / email).