United States v. Lige
2011 U.S. App. LEXIS 4610
| 5th Cir. | 2011Background
- Lige pleaded guilty to illegal possession of unauthorized access devices used to fraudulently obtain cellular phones from Sprint/Nextel.
- He impersonated legitimate account holders to place fraudulent orders billed to victims but shipped to him, which he resold.
- Probation report showed 197 fraudulent orders: 85 delivered, 112 canceled before shipping; actual loss $112,655; intended loss $245,881.
- Probation recommended a 12-level enhancement under U.S.S.G. § 2B1.1(b)(1)(G) for intended loss over $200,000.
- District court adopted the retail value as the loss measure, calculating an advisory range of 46–57 months and imposing a 46-month sentence.
- Lige challenged whether loss should be measured at wholesale (replacement cost) rather than retail value.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper loss measure under § 2B1.1 for stolen phones | Lige—use wholesale cost (replacement value) for loss | Retail value reflects victim’s market, not wholesale cost | Retail value used; not error in calculation |
| Deference to district court on loss amount | District court’s loss estimate should be upheld as plausible | Need de novo review of loss calculation | Loss calculation reviewed de novo; method using retail value affirmed |
| Market value guidance under Guidelines | Wholesale market should set value | Retail market value appropriate for retail-vendor victims | Fair market value reflects the market in which victim would sell; retail price applied |
Key Cases Cited
- United States v. Harris, 597 F.3d 242 (5th Cir.2010) (de novo review of loss calculation applied to guideline interpretation)
- United States v. Olis, 429 F.3d 540 (5th Cir.2005) (loss must focus on pecuniary impact with realistic economic approach)
- United States v. Perry, 638 F.2d 862 (5th Cir. Unit A Mar.1981) (market value should reflect actual market value, not fiction retail price for wholesale goods)