United States v. Justin Lee Howard
759 F.3d 886
8th Cir.2014Background
- Howard extorted D.D. by threatening to disclose his sexual orientation and other repercussions after obtaining money via LifeOut.com communications.
- Total loss demanded or obtained: $53,625.25; additional coercive threats included a nude photo and targeting employers, family, and colleagues.
- Indicted for extortion under 18 U.S.C. § 875(d) for July 16–27, 2012 conduct; pled guilty to that period of conduct.
- District court calculated guidelines: base level 9, +6 for amount, −2 for acceptance, total level 13; criminal history III; Guideline range 18–24 months; sentence 21 months with restitution of $53,625.25.
- Howard challenges both the inclusion of pre-July 16 conduct as relevant conduct for sentencing and the restitution amount.
- Judgment remanded to strike restitution; otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-July 16 conduct can be relevant conduct for sentencing | Howard argues pre-July 16 losses are not relevant conduct under §1B1.3(a)(2). | Howard contends extortion not grouped and pre-conduct not preparatory for the charged offense. | Pre-July 16 conduct can be considered relevant conduct; no error in sentencing. |
| Whether restitution was proper for the offense of conviction | Howard contends restitution should cover only losses tied to charged offense. | Reynolds-based approach applies; restitution for conduct preparatory to the offense is improper. | Restitution reversed; only loss during dates of conviction ($100) is recoverable, which is not attributable to charged conduct. |
Key Cases Cited
- United States v. Allebach, 526 F.3d 385 (8th Cir. 2008) (guidelines interpretation and relevant conduct review)
- United States v. Ewing, 632 F.3d 412 (8th Cir. 2011) (distinguishing relevant conduct from preparatory acts)
- United States v. Scolaro, 299 F.3d 956 (8th Cir. 2002) (definition of acts taken prior to offense to prepare for it)
- United States v. Williams, 693 F.3d 1067 (9th Cir. 2012) (credibility and preparation in extortion context)
- United States v. Yerena-Magana, 478 F.3d 683 (5th Cir. 2007) (intent required for 'preparation' showing discouraged by record)
- Hughey v. United States, 495 U.S. 411 (1990) (restitution limited to loss caused by the specific offense)
- United States v. Reynolds, 432 F.3d 821 (8th Cir. 2005) (restitution limited when underlying offenses involve no scheme)