United States v. Brant Rushton
2013 U.S. App. LEXIS 25707
| 7th Cir. | 2013Background
- Rushton operated a commodity pool used to run a Ponzi scheme; he pled guilty to mail fraud and money laundering with statutory max 20 years per count.
- Probation calculated guidelines by adding 4-level commodity pool operator fraud and 2-level abuse of trust on top of base mail fraud; total offense level 28 (78–97 months).
- District judge sentenced Rushton to 96 months and ordered $1.62 million restitution; judge criticized him for exploiting vulnerable victims including elderly and disabled.
- Government and Rushton argued that the 2-level abuse of trust overlap with the 4-level pool operator enhancement should not stack under Application Note 14(c).
- Appellate issues included whether the abuse of trust enhancement should apply when the commodity pool operator enhancement does, and whether errors on remand could be corrected by adding a vulnerable-victim enhancement.
- Court concluded the sentencing was botched; remand for complete resentencing was warranted to correct multiple errors including vulnerable-victim enhancement and proper offense-level calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May abuse of trust overlap with pool operator enhancement? | Rushton | Rushton | No; overlap barred; remand required |
| Should money laundering offense govern Guidelines range on remand? | Rushton | Gov’t | Remand for corrected calculation using money laundering offense level |
| Was vulnerable-victim enhancement properly considered on remand? | Rushton | Gov’t | Yes; should add vulnerable-victim enhancement (at least 2 levels) |
| Can the government seek additional enhancements on remand for a sentence open record? | Rushton | Gov’t | Rule adopted that government generally cannot pursue new enhancements not raised initially on remand |
| What is the proper remedy for a flawed sentencing calculation? | Rushton | Gov’t | Resentence from scratch on remand |
Key Cases Cited
- United States v. Garrett, 528 F.3d 525 (7th Cir. 2008) (plain-error standard for sentencing claims; discretionary considerations)
- United States v. Love, 706 F.3d 832 (7th Cir. 2013) (government cannot seek new enhancements on remand in some circumstances)
- United States v. Tello, 687 F.3d 785 (7th Cir. 2012) (remand sentencing procedures and enhancements)
- United States v. Sutton, 582 F.3d 781 (7th Cir. 2009) (remand and enhancement considerations)
- United States v. Wyss, 147 F.3d 631 (7th Cir. 1998) (government’s ability to seek unraised enhancements on remand; circuit split)
- United States v. Matthews, 278 F.3d 880 (9th Cir. 2002) (open-record remand sentencing framework)
- United States v. Ynfante, 78 F.3d 677 (D.C. Cir. 1996) (remand scope and use of record evidence)
- United States v. Cornelius, 968 F.2d 703 (8th Cir. 1992) (remand scope and new evidence on sentencing)
- United States v. Sanchez Solis, 882 F.2d 693 (2d Cir. 1989) (truth and fairness in sentencing remands)
- United States v. Goldberg, 406 F.3d 891 (7th Cir. 2005) (impact of remand on earlier sentencing outcomes)
- United States v. Garcia-Guizar, 234 F.3d 483 (9th Cir. 2000) (upholding higher sentence on remand when appropriate)