United States v. Skys
637 F.3d 146
| 2d Cir. | 2011Background
- Skys pleaded guilty to one count of securities fraud, three counts of wire fraud, and one count of bank fraud; sentenced to 130 months with five years’ supervised release.
- Skys falsely claimed Kaiser-Himmel owned 13.4 million Sprint Nextel shares and forged documents to obtain about $83 million from financial institutions.
- Citigroup and others declined after verifying the false ownership; none of Kaiser-Himmel’s misrepresentations were true.
- The Presentence Report described uncharged conduct: Backspace2 solicitations to investors and a $300,000 payoff from a Florida dentist, labeled as victims.
- The district court adopted the PSR, applied a 10-victim enhancement and a 4-level leadership adjustment, yielding a 235–293 month range, then sentenced below guidelines.
- On appeal, Skys challenges the 10-victim and leadership enhancements; the panel remands for supplementation to permit meaningful review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there were 10 or more victims for §2B1.1(b)(2). | Skys argues victims were not properly counted. | Skys contends Backspace2 investors and institutions were not properly included. | Remand for supplementation to determine actual losses and victim count. |
| Whether the leadership/organizer enhancement under §3B1.1(a) was properly applied. | Skys argues there were no adequate findings of an additional criminally responsible participant. | Government contends the scheme was extensive and warranted the adjustment. | Remand for specific factual findings establishing eligibility for the enhancement. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (reasonableness review and calculation of Guidelines range)
- Carrozzella v. United States, 105 F.3d 796 (2d Cir. 1997) (extension of §3B1.1 extensive/organizational framework)
- Ware v. United States, 577 F.3d 442 (2d Cir. 2009) (need for specific findings to support §3B1.1)
- Abiodun v. United States, 536 F.3d 162 (2d Cir. 2008) (victims and loss calculations under §2B1.1)
- Espinoza v. United States, 514 F.3d 209 (2d Cir. 2008) (need for precise factual findings on role adjustments)
- Liebman v. United States, 40 F.3d 544 (2d Cir. 1994) (organizational size and responsibility considerations)
- Rubenstein v. United States, 403 F.3d 93 (2d Cir. 2005) (factors for determining extensiveness and participants)