In United States v. Ghertler, the defendant pled guity to a federal criminal indictment charging federal crime of fraud against seven victim companies. The Presentence Investigation Report included relevant conduct that the defendant committed fraud on a total of 14 companies. The defendant appealed the sentence, objecting to the loss calculations, the number of victims and he raised an objection to the abuse of trust, sophisticated means, and the obstruction of justice enhancements.
The appellate court upheld the sentence, noting that the following factors under 18 United States Code §3553(c)(1) were mentioned by the sentencing judge:
• the defendant’s criminal history,
• calls to commit federal fraud calls while in prison
• the likelihood of reoffending a federal crime
• the need to protect the public from further crimes
• the nature and circumstances of the federal offense as a sentencing consideration.
The court of appeals did reverse the abuse of trust enhancement, finding that the defendant did not occupy position of trust with any of the victims. The district court’s reliance on the “imposter” provision of the Guidelines was not applicable because there was no relationship of trust established. The defendant did not have a lengthy relationship of trust with these victims. Rather, his was more like a quick strike with an overt fraud.
There was sufficient evidence to support the sophisticated means enhancement due to activities such as researching the companies he defrauded to develop inside information that facilitated the fraud.
Finally, relying on Rita v. United States, the defendant challenged his sentence enhancement on facts found by the court at sentencing that were neither admitted by his plea nor found by a jury. The appellate court cited precedent holding that the judge may make factual findings in reaching an advisory sentence as long as the sentence does not exceed the maximum statutory sentence.