United States v. Snowden
806 F.3d 1030
10th Cir.2015Background
- Defendant Blake Snowden pled guilty to unlawfully obtaining information from a protected computer and intercepting emails.
- The district court applied a 16-level loss enhancement under USSG § 2B1.1(b)(1) based on alleged losses exceeding $1 million, yielding 41–51 months guideline range.
- The court downward varied to 30 months.
- The district court included $1.5 million in development costs as actual loss, plus $25,000 in response costs, for loss calculation.
- Onyx’s data breach involved copying thousands of emails and copying Bullhorn data, with only about $25,000 in response costs and development costs totaling approximately $1.5 million.
- The court ordered restitution of $25,354, later agreed to be corrected on remand to $24,174.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether loss calculation under USSG 2B1.1 was correct. | Government argued development costs justify higher loss. | Snowden contends only actual response costs are loss; development costs are not loss. | Harmless error; sentence unaffected by loss calculation. |
| Whether the district court properly treated development costs as loss for sentencing. | Government relies on commentary allowing cost of developing proprietary information. | Defendant asserts no actual pecuniary loss from the data theft. | We would not affirm solely on development-cost loss; need actual loss evidence. |
| Whether the restitution amount should be corrected on remand. | Restitution amount reflected $25,354. | Disagreement over exact amount; seeks correction to $24,174. | Remand for entry of restitution in the amount of $24,174. |
| Whether the sentence would have been different if guideline range was correctly calculated. | Discretionary variance allowed; court already varied downward. | Sentence would rely on proper guideline range. | Harmless error; court stated it would impose the same 30-month sentence regardless. |
Key Cases Cited
- United States v. Todd, 515 F.3d 1128 (10th Cir. 2008) (guideline range calculation framework; need for loss proof)
- United States v. Booker, 543 U.S. 220 (U.S. 2005) (authorization of non-Guidelines sentence under 3553(a))
- United States v. Glover, 413 F.3d 1206 (10th Cir. 2005) (harmless error standard for miscalculated guideline range)
- Pena-Hermosillo v. United States, 522 F.3d 1108 (10th Cir. 2008) (taint of upward variance where proper notice is lacking)