Tuesday, January 23, 2007

Court Finds Extent of Upward Departure Unreasonable

United States v. Rajwani, No. 05-10648 (5th Cir. Jan. 16, 2007) (Jones, Davis, Garza)

Rajwani was convicted of three counts of aiding and abetting wire fraud for her participation in a "Spanish lottery" scam. The victims were three elderly ladies, two of whom lost over $60,000.

Rajwani's guideline range, which included a vulnerable victim enhancement on account of the victims' ages, was 37 to 46 months (21, I). The district court departed upward to a sentence of 120 months on each of the three counts, to be served concurrently. "[T]he court found that an upward departure was warranted because the Guidelines range did not adequately address the seriousness of the offense (U.S.S.G. § 2B1.1, Comment 19) and because the circumstances in the case were present to a degree substantially in excess of that which ordinarily would be involved in a typical offense of this kind (U.S.S.G. § 5K2.0(a)(3))." Slip op. at 5. Specifically, the court "identified the effect of the financial loss on the elderly victims and the emotional impact on the victims as justification for the upward departure." Id.

Rajwani appealed, arguing, among other things, that the 120 month sentence was an abuse of discretion and unreasonable. The court agreed. It first held that the sentence was procedurally reasonable insofar as the district court adequately addressed the relevant § 3553(a) factors in determining that a departure was warranted on the specific facts of the case.

However, the court "conclude[d] that both the degree of the departure and the sentence as a whole are unreasonable and, therefore, the district court abused its discretion in the extent of the departure." Slip op. at 14. Although "the financial vulnerability of victims and the related emotional hardship make this case somewhat atypical and justify an upward departure[, . . . ] the Sentencing Commission has substantially accounted for these aggravating characteristics of the defendant’s conduct by providing for a vulnerable victim enhancement and an enhancement based on the amount of the fraud." Id. at 19. For that reason, the court held that a sentence three times the length of the mid-Guideline range was unreasonable. The court went on to say that even "a sentence beyond twice the top of the Guidelines range (92 months) would fail reasonableness review under the facts presented here." Id.


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