- The financial loss for financial crimes is the principal driver for the Guidelines. In the tax Guidelines, the financial loss is called the tax loss. See S.G. 2T1.1, here (for the major tax crimes); see S.G. 2T4.1 (Tax Table), here.
- The tax loss from the count(s) of conviction and the tax loss from related unconvicted conduct -- called "relevant conduct" -- can be included the the tax loss for purpose of the determinations. For the concept of relevant conduct, see SG 1B1.3, here.
- These sentencing determinations are generally made by a preponderance of the evidence. We did note that the Ninth Circuit may require some sentencing determinations to be made by clear and convincing evidence.
This morning, while going through my list of recent cases that I had not yet read, I came across United States v. Hymas, ___ F.3d ___, 2015 U.S. App. LEXIS 4822, 1-21 (9th Cir. Idaho 2015), here. In Hymas, the Ninth Circuit held that, in the facts of the case, relevant conduct financial loss determinations for nontax financial crimes must be made under by clear and convincing evidence. Although sentencing determinations are normally made by a preponderance of the evidence, the Ninth Circuit requires those determinations to be made by clear and convincing evidence "when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction." United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir. 2000) (citing United States v. Restrepo, 946 F.2d 654, 659 (9th Cir. 1991) (en banc)). The NInth Circuit has established no "bright-line rule for the disproportionate impact test," but requires it to be made in the context of the totality of the facts under guidance first given in United States v. Valensia, 222 F.3d 1173 (9th Cir. 2000). The Ninth Circuit said.
Under the Valensia totality of the circumstances test, six factors, none of which is dispositive, guide the determination of whether a sentencing factor has a disproportionate impact on the sentence:(1) whether the enhanced sentence falls within the maximum sentence for the crime alleged in the indictment; (2) whether the enhanced sentence negates the presumption of innocence or the prosecution's burden of proof for the crime alleged in the indictment; (3) whether the facts offered in support of the enhancement create new offenses requiring separate punishment; (4) whether the increase in sentence is based on the extent of a conspiracy; (5) whether an increase in the number of offense levels is less than or equal to four; and (6) whether the length of the enhanced sentence more than doubles the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence.Treadwell, 593 F.3d at 1000.In Hymas, the Ninth Circuit reviewed the relevant facts as follows: