Guideline Sentencing: An Outline of Appellate Case Law on ...

Section II: Offense Conduct
975 F.2d 580, 584 (9th Cir. 1992) (court required to include all losses that arose
from common scheme or plan); U.S. v. LaFraugh, 893 F.2d 314, 317–18 (11th Cir.
1990) (wire fraud defendant’s sentence properly based on losses caused by all conspirators).
Cf. U.S. v. Fox, 889 F.2d 357, 360–61 (1st Cir. 1989) (proper to include as
relevant conduct four prior uncharged acts <strong>of</strong> embezzlement for defendant convicted
on only one count).
Note that to hold defendant accountable for the conduct <strong>of</strong> others, that conduct
must be within the scope <strong>of</strong> defendant’s agreement and reasonably foreseeable. See,
e.g., U.S. v. Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993) (remanded: court must
find that conduct was within scope <strong>of</strong> defendant’s agreement relating to credit card
fraud—“mere knowledge that criminal activity is taking place is not enough”) [5#15];
U.S. v. Fuentes, 991 F.2d 700, 701 (11th Cir. 1993) (remanded: defendant should
not have been sentenced on basis <strong>of</strong> coconspirator acts committed in furtherance <strong>of</strong>
fraud conspiracy that were not reasonably foreseeable).
May losses that occurred before a defendant joined a conspiracy, or after defendant
left, be included in relevant conduct? A Nov. 1995 addition to Note 2 <strong>of</strong> §1B1.3
states that “relevant conduct does not include the conduct <strong>of</strong> members <strong>of</strong> a conspiracy
prior to the defendant’s joining the conspiracy, even if the defendant knows
<strong>of</strong> that conduct.” However, departure may be warranted for an “unusual set <strong>of</strong> circumstances
in which the exclusion <strong>of</strong> such conduct may not adequately reflect the
defendant’s culpability.” See also U.S. v. Oseby, 148 F.3d 1016, 1026 (8th Cir. 1998)
(remanded: “We have held that a person cannot be held liable for the losses caused
by other conspirators in the scheme prior to the time the person entered the conspiracy.
See U.S. v. Cain, 134 F.3d 1345, 1349 (8th Cir. 1998). It seems logical that a
person should also not be held responsible for the losses that occur after he exits the
conspiracy. This is especially true in a case where that person is a minor participant
in the conspiracy, as the district court found Oseby was in this conspiracy.”).
E. More Than Minimal Planning
Several guideline sections require a two-level increase in the <strong>of</strong>fense level if the <strong>of</strong>fense
involved “more than minimal planning.” See USSG §§2A2.2(b)(1),
2B1.1(b)(4)(A), 2B1.3(b)(3), 2B2.1(b)(1), and 2F1.1(b) (2)(A). As defined in Application
Note 1(f) to §1B1.1, more than minimal planning “means more planning
than is typical for commission <strong>of</strong> the <strong>of</strong>fense in simple form,” “exists if significant
affirmative steps were taken to conceal the <strong>of</strong>fense,” and “is deemed present in any
case involving repeated acts over a period <strong>of</strong> time, unless it is clear that each instance
was purely opportune.” Generally, a finding <strong>of</strong> more than minimal planning
is fact-specific and will only be reversed if clearly erroneous. See, e.g., U.S. v. Phath,
144 F.3d 146, 150–51 (1st Cir. 1998) (remanding §2F1.1(b)(2) enhancement for
bank fraud defendant, who deposited two counterfeit checks, recruited two others
to deposit four other checks, and withdrew the money within a span <strong>of</strong> forty-eight
hours: “Almost all crimes involve some degree <strong>of</strong> planning. We do not find the
amount <strong>of</strong> planning here sufficient to justify the enhancement.”); U.S. v. Cropper,
101