United States v. Jason Cox
665 F. App'x 457
| 6th Cir. | 2016Background
- Jason Cox, an Edward Jones investment advisor with little supervision, developed a gambling addiction and misappropriated funds from multiple clients. He pled guilty to mail fraud, wire fraud, and money laundering and was sentenced to 60 months and ordered to pay restitution of $412,252.85.
- One victim, Jodene Beavers, a developmentally disabled woman, lost nearly all inherited assets after Cox induced asset sales, took checks, and relocated her to inferior housing causing emotional and physical harm.
- The Pre-Sentence Report (PSR) calculated loss (initially $432,539, later adjusted to $412,252.85) and recommended offense level 22 based on a $400k–$1M loss range; parties agreed to a lower $200k–$400k range for sentencing (offense level 20) in part because forthcoming Guidelines changes.
- The PSR and court applied enhancements: +12 loss-based levels (by agreement), +2 for abuse of trust, and +2 for vulnerable victim; acceptance of responsibility reduced level to 20 (guideline range 37–46 months); court varied upward to 60 months.
- Cox appealed asserting errors: improper abuse-of-trust enhancement (and alleged double-counting with vulnerable-victim), erroneous inclusion of fees/penalties in restitution, and that his above-Guidelines sentence was procedurally and substantively unreasonable.
Issues
| Issue | Cox's Argument | Government's Argument | Held |
|---|---|---|---|
| Abuse-of-trust enhancement (USSG §3B1.3) | Cox: position not a trust; misconduct resulted from victim credulity and off-books solicitations | Gov: as advisor he had discretionary control and little oversight, which facilitated concealment | Court: Affirmed enhancement; advisor role involved substantial discretionary judgment and limited supervision |
| Double-counting (abuse of trust + vulnerable victim) | Cox: applying both enhancements duplicates same conduct | Gov: enhancements target different aspects—victim selection vs. post-selection abuse | Court: No double-counting; factors address distinct conduct and victim selection, so both apply |
| Restitution inclusion of fees/penalties | Cox: restitution improperly includes early-distribution tax penalties, wire and real-estate fees; loss for sentencing excludes these items | Gov: restitution governed by MVRA and §5E1.1; restitution can include such charges even if excluded from loss for guidelines | Held: Court rejected plain-error challenge; fees may be excluded from loss for sentencing but can be included in restitution; district court’s adoption of restitution not reversible |
| Procedural/substantive reasonableness of 60-month sentence | Cox: court misstated guideline baseline, failed to explain upward variance, overweighted seriousness and ignored mitigation (history, cooperation, repayment) | Gov: court stated applicable range, considered §3553(a) factors (history, addiction, offense gravity, deterrence, restitution) and adequately explained variance | Held: Affirmed; no plain error procedurally and sentence was substantively reasonable under §3553(a) |
Key Cases Cited
- United States v. Gilliam, 315 F.3d 614 (6th Cir.) (standards for reviewing position-of-trust determinations)
- United States v. Tribble, 206 F.3d 634 (6th Cir.) (discretion accorded employee is decisive for trust positions)
- United States v. Brogan, 238 F.3d 780 (6th Cir.) (job must involve substantial discretionary judgment for trust enhancement)
- United States v. Dobish, 102 F.3d 760 (6th Cir.) (distinguishing vulnerable-victim and abuse-of-trust enhancements for double-counting)
- Gall v. United States, 552 U.S. 38 (2007) (procedural and substantive reasonableness; §3553(a) considerations)
- United States v. Vonner, 516 F.3d 382 (6th Cir.) (plain-error standard elements for forfeited sentencing objections)
- United States v. Blackie, 548 F.3d 395 (6th Cir.) (clarifies requirement to state applicable guideline range and explain sentence calculation)
- United States v. Rutley, [citation="482 F. App'x 175"] (7th Cir.) (restitution may include interest/fees even if excluded from §2B1.1 loss calculation)