United States v. Gary Washington
2013 U.S. App. LEXIS 8479
| 11th Cir. | 2013Background
- The government sought a 6-level enhancement under U.S.S.G. § 2B1.1(b)(2)(C) for 250+ victims in Washington’s fraud scheme but offered no evidence of 250+ victims.
- Washington pled guilty to four offenses related to trafficking and using unauthorized credit card numbers and re-encoding machines.
- Probation reported the scheme spanned May 2010–March 2011 and claimed 250+ victims based on spreadsheets.
- The government conceded Washington’s involvement began in September 2010, limiting potential victims to those involved during that period.
- At sentencing, the district court accepted the government’s usual practice and applied the 6-level enhancement without presenting concrete 250+-victim evidence.
- The district court later resentenced, reducing the enhancement to a 2-level one on remand and ordering restitution to identified victims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 250+ victims enhancement was properly applied | Washington contends no evidence proves 250+ victims. | Washington raised objections; government failed to prove 250+ victims. | Vacated; remanded for resentencing with a 2-level enhancement. |
| Burden and sufficiency of evidence for the enhancement | Government failed to present reliable, admissible evidence. | Government asserted thousands of victims but offered no substantive proof. | Government did not meet its burden; evidence insufficient to support the enhancement. |
| Remand for new evidence; whether government may introduce new evidence on remand | N/A | N/A | Court declines allowing new evidence on remand but vacates and remands for proper resentencing. |
Key Cases Cited
- United States v. Askew, 479 F.3d 779 (11th Cir. 2007) (burden to prove enhancement by preponderance of evidence at sentencing)
- United States v. Onofre-Segarra, 126 F.3d 1308 (11th Cir. 1997) (sentencing evidence must be reliable; attorney arguments alone insufficient)
- United States v. Wilson, 884 F.2d 1355 (11th Cir. 1989) (arguments at sentencing require evidentiary support)
- United States v. Castellanos, 904 F.2d 1490 (11th Cir. 1990) (defendant must be afforded opportunity to rebut contested evidence)
- United States v. Hunter, 323 F.3d 1314 (11th Cir. 2003) (pre-plea conduct limitations on accountability for offenses)
- United States v. Martinez, 606 F.3d 1303 (11th Cir. 2010) (remand doctrine when government fails to present evidence at sentencing)
- United States v. Canty, 570 F.3d 1251 (11th Cir. 2009) (remand for further findings generally inappropriate when issue was before district court)
- United States v. Alred, 144 F.3d 1405 (11th Cir. 1998) (remand to resentence without improper enhancement when evidence insufficient)
- United States v. Archer, 671 F.3d 149 (2d Cir. 2011) (spectrum of remand evidence exceptions across circuits)
- United States v. Leonzo, 50 F.3d 1086 (D.C. Cir. 1995) (government failure to sustain burden on contested issues)
- United States v. Perez-Oliveros, 479 F.3d 779 (11th Cir. 2007) (guidelines enhancements require reliable proof)