United States v. Donella Locke
2014 U.S. App. LEXIS 13868
| 7th Cir. | 2014Background
- Locke and a co‑conspirator committed real estate fraud using false documents, SSNs, fictitious vendors, and inflated income; details tied to prior appeal.
- indictment originally charged 15 counts; at trial only 5 were proven; 10 counts dismissed after government conceded lack of evidence.
- Presentence report calculated loss at $2,360,914.51 based on all counts; Locke argued loss should reflect convicted conduct only (<$1 million).
- At first sentencing, court assumed loss >$1 million but < $2.5 million; Lockewithdrew objection to loss amount; sentence of 71 months run concurrently with supervised release; restitution of $2,360,916.51.
- On remand for restitution and victims, the district court limited consideration to convicted counts for loss due to waiver; restitution recalculated under MVRA.
- Final re‑sentencing reduced offense level and restitution to $340,789; district court offset restitution by collateral recoveries; judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of loss amount | Locke did not preserve loss challenge when withdrawing objection. | Waiver bars loss review; only restitution remains for MVRA. | Loss issue waived; rest of challenge governed by restitution framework. |
| Loss vs restitution distinction | Loss and restitution should be recalculated consistently based on the conviction and relevant conduct. | Loss for sentencing and restitution are separate calculations; different rules apply. | They are distinct analyses; MVRA governs restitution, not the loss guidelines. |
| Remand scope after waiver | District court should reconsider loss with potential evidence from collateral recoveries. | Because loss was waived, only restitution issues on remand. | Remand limited by waiver; restitution may adjust for collateral recovery under MVRA. |
| Relevant conduct vs MVRA findings | Relevant conduct used to determine loss and number of victims should be reviewed. | Relevant conduct applies to loss/number of victims at sentencing; MVRA separate. | Waiver of loss or not, MVRA restitution is not governed by 'relevant conduct'; only loss discussion limited by waiver. |
Key Cases Cited
- United States v. Hussein, 664 F.3d 155 (7th Cir. 2011) (distinguishes loss vs restitution; relevance of 'relevant conduct' to MVRA)
- United States v. Frith, 461 F.3d 914 (7th Cir. 2006) (relevant conduct not within MVRA scope)
- Robers v. United States, 134 S. Ct. 1854 (2014) (restoration of restitution and timing of offset against collateral)
- U.S. v. Westerfield, 714 F.3d 480 (7th Cir. 2013) (recognizes overlap may occur between guideline loss and MVRA evidence)
- United States v. Green, 648 F.3d 569 (7th Cir. 2011) (loss versus collateral offset considerations in sentencing)