RICO Sentence for Mail Fraud and Money Laundering Vacated and Remanded for Resentencing Due to Guideline Errors

United States v. Pratt, No. 11-31049 (Aug. 28, 2013) (Higginbotham, Owen, and Graves)

Pratt was found guilty at trial of conspiracy to violate RICO because of her abuse of her political influence and power to further the objectives of a criminal enterprise to illegally funnel state and federal funds and property to members of the conspiracy for their personal benefit.  She appealed her conviction and sentence.  The panel affirmed her conviction but vacated her sentence and remanded for resentencing.

The Government alleged two types of racketeering activity: mail fraud and money laundering.  The district court calculated the sentencing guidelines based on money laundering, when it should have based them on mail fraud.  Pratt did not appeal the use of the money laundering guidelines, though, so she waived that error.  In its use of the money laundering guideline, § 2S1.1, the district court erred by applying a two-level enhancement under § 2B1.1(b)(8)(A) and calculating the loss based on the value of all of the goods and services misappropriated according to § 2B1.1 instead of the value of the laundered funds according to § 2S1.1.  Section 2S1.1 refers to the table in § 2B1.1 to increase the base offense level according to the value of the laundered funds, but that does not mean the instructions and definitions of § 2B1.1 thereby apply to an offense subject to the § 2S1.1 guideline. 

Based on the district court’s miscalculations, it believed the guideline range was 78-97 months when it sentenced Pratt to 87 months.  The correct guideline range, based on the mail fraud guideline, was 70-87 months.  The panel held that the district court’s error was plain and that Pratt’s substantial rights were affected because the court “stated on the record that it was choosing a sentence within the middle of the Guidelines range as the appropriate sentence, indicating that the Guidelines range calculated by the district court was a primary factor in the selection of the 87-months’ sentence . . . .”  Under the correct guideline range, 87 months was the top instead of the middle, so the panel vacated the sentence and remanded.

As for the actual conviction, the panel found that the district court questioned the venire adequately about pretrial publicity.  The potential jurors completed an eight-page screening questionnaire, and the court questioned all potential jurors during voir dire and out of the presence of other potential jurors about their ability to be impartial.  The panel rejected Pratt’s contention that only a trial lawyer can ask sufficiently probing and nuanced questions to uncover bias.  The panel also affirmed the district court’s determination that the Government did not use its peremptory challenges to exclude jurors on the basis of race, since the Government offered other plausible reasons for striking five of the six potential jurors who were black.  Lastly, the panel found that the fourth superseding indictment sufficiently identified the pattern of racketeering activity underlying the conspiracy.