United States v. Roger Pollock
700 F. App'x 577
| 9th Cir. | 2017Background
- Roger M. Pollock pled guilty to making a false statement to a federally insured bank in violation of 18 U.S.C. § 1014.
- At sentencing the district court increased Pollock’s Base Offense Level by 14 levels under U.S.S.G. § 2B1.1(b)(1) based on a loss calculation.
- The central factual dispute concerned whether the court could reasonably estimate the bank’s actual loss and the fair market value of pledged collateral securing the loans.
- The court also assessed Pollock’s subjective intent and whether $674,000 in diverted loan proceeds constituted intended loss or his gain.
- Pollock appealed the sentence, challenging the district court’s findings on actual loss, intended loss, and the use of gain as an alternative measure.
- The Ninth Circuit reviewed legal standards de novo, guideline application for abuse of discretion, and factual findings for clear error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court could reasonably estimate actual loss | Pollock: court could estimate actual loss and should credit fair market value of collateral | Government: record lacked reliable evidence to determine fair market value; court properly found actual loss not reasonably estimable | Court: Affirmed; no clear error in finding actual loss not reasonably estimable |
| Whether fair market value of pledged collateral should offset intended loss | Pollock: fair market value should reduce intended loss | Government: court properly declined to credit collateral value against intended loss based on evidence of Pollock's intent | Court: Affirmed; district court properly analyzed intent and declined to offset intended loss |
| Whether $674,000 diverted proceeds equals intended loss | Pollock: intended loss should be $674,000 (diverted proceeds) | Government: court evaluated subjective intent and used guidelines for intended loss; alternative gain measure also considered | Court: Affirmed district court’s intended-loss calculation; no need to resolve alternative gain finding |
| Whether $674,000 constituted defendant’s gain and whether it could be used as alternative measure | Pollock: district court erred in labeling diverted proceeds as his gain | Government: court permissibly used gain as alternative measure | Court: Not reached on merits because intended-loss calculation was correct; affirmed without deciding alternative gain issue |
Key Cases Cited
- United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (standards for reviewing guideline calculations and factual findings)
- United States v. Tulaner, 512 F.3d 576 (9th Cir. 2008) (review standards for sentencing guideline application)
- United States v. McCormac, 309 F.3d 623 (9th Cir. 2002) (analysis of intended loss and crediting collateral against loss)