United States v. Murray
2011 U.S. App. LEXIS 15503
| 5th Cir. | 2011Background
- Murray was the CEO and majority owner of Premiere Holdings, created from a merger involving Money Mortgage and Lapin & Wigginton.
- Premiere’s P72 Program solicited investor funds with promises of 12% returns on real estate investments.
- Loans were often high risk with promised collateral and a 25% loan origination fee not disclosed.
- By Sept 2001, large loans defaulted and Premiere filed for Chapter 11 on Oct 2, 2001, with $165 million outstanding.
- Murray was convicted on multiple counts; at sentencing the district court used the 2001 Guidelines and found a loss of $84 million plus a leader/organizer uplift.
- District court imposed a below-guidelines sentence of 240 months; Murray challenges ex post facto applicability, loss calculation, the leadership enhancement, and substantive reasonableness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex post facto: apply 2001 Guidelines to pre-effective conduct. | Murray contends application violates ex post facto. | Government argues no plain error after Booker/Castillo-Estevez; guidelines advisory. | Not plain error; application upheld. |
| Methodology for calculating loss under §2B1.1(b)(1). | Loss should be $28 million or discounted for collateral/market factors. | Loss is $84 million based on expert testimony; collateral considerations properly applied. | District court’s loss estimation deemed reasonable and properly applied. |
| Leader/organizer enhancement under §3B1.1(a). | Murray lacked control over others; no basis for enhancement. | Evidence supports Murray’s coordination and control across sides of the operation. | No plain error; enhancement properly applied. |
| Substantive reasonableness of below-guidelines sentence. | Sentence is greater than necessary; argues disparities and over-punishment. | Court weighed factors and mitigated; sentence within reason given harm and scale. | Sentence substantively reasonable. |
Key Cases Cited
- Castillo-Estevez v. United States, 597 F.3d 238 (5th Cir. 2010) (guidelines advisory after Booker; ex post facto dispute not plain error)
- Marban-Calderon v. United States, 631 F.3d 210 (5th Cir. 2011) (ex post facto analysis under amended guidelines; plain error not shown)
- Goss v. United States, 549 F.3d 1013 (5th Cir. 2008) (actual loss; collateral deduction; deference to district court)
- Olis v. United States, 429 F.3d 540 (5th Cir. 2005) (extrinsic factors influencing loss; collateral valuation not discounted by market factors)
- Rome v. United States, 207 F.3d 251 (5th Cir. 2000) (application of PSR; adequacy of evidentiary basis for loss findings)
- Cabrera v. United States, 288 F.3d 163 (5th Cir. 2002) (leader/organizer analysis permissible by inference from facts)