United States v. Todd Horob
735 F.3d 866
| 9th Cir. | 2013Background
- Todd Horob, a cattle buyer/rancher, obtained loans secured by cattle he did not own, fabricated documents, induced others to lie, and laundered funds; banks lost over $5 million when fraud was revealed.
- Indicted and convicted on multiple counts: bank fraud, wire fraud, money laundering, bankruptcy scheme to defraud, false statements to a bank, and aggravated identity theft (the latter carrying a mandatory consecutive 24-month sentence).
- At initial sentencing the district court imposed a 132-month total sentence (including the 24-month consecutive term) after a downward variance from the Guidelines.
- On appeal this Court reversed convictions for false statements to a bank and aggravated identity theft, vacating the mandatory consecutive 24-month term, affirmed remaining convictions, and remanded for resentencing.
- At resentencing the district court again imposed a 132-month total sentence by increasing the terms on the remaining counts; Horob challenged vindictiveness, use of uncharged loans as relevant conduct, the sophisticated-means enhancement, and accuracy of trial transcripts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presumption of vindictiveness applies after remand where total sentence unchanged | Government: No presumption because overall sentence was not increased | Horob: Vacated count carried mandatory consecutive term; keeping same package reflects vindictiveness | No presumption; presumption arises only if overall sentence increases; remand sentence may repackage counts |
| Whether Horob can show actual judicial vindictiveness | Government: No evidence of retaliatory motive; court considered unchanged conduct | Horob: Judge’s comments and increased individual-count terms show hostility/retaliation | No actual vindictiveness proved; statements and reconfigured package reflect consideration of totality, not retaliation |
| Whether district court properly considered uncharged loans as relevant conduct | Government: Loans were part of the same scheme/common scheme or plan | Horob: Only indicted loans should count | Court affirmed; U.S.S.G. §1B1.3 allows common-scheme relevant conduct where multiple common factors exist |
| Whether sophisticated-means enhancement was proper | Government: Scheme was complex, used fabricated documents, multiple accounts, and recruited others to lie | Horob: Scheme not sufficiently intricate to merit enhancement | Affirmed; scheme was especially complex relative to typical fraud offenses |
| Whether district court erred in denying evidentiary hearing on transcript accuracy | Government: Transcripts were verified against audio by counsel and court | Horob: Claimed omissions/errors warrant hearing | Denial affirmed; factual finding of transcript accuracy not clearly erroneous and no specific prejudice shown |
Key Cases Cited
- United States v. Jenkins, 504 F.3d 694 (9th Cir. 2007) (standard of review for resentencing vindictiveness issues)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (presumption of vindictiveness when sentence increased after successful challenge)
- United States v. Bay, 820 F.2d 1511 (9th Cir. 1987) (no presumption if overall sentence unchanged despite increases on individual counts)
- United States v. Hagler, 709 F.2d 578 (9th Cir. 1983) (affirming no presumption where sentencing package remained the same)
- United States v. Booker, 543 U.S. 220 (U.S. 2005) (sentencing courts consider totality of circumstances post-Guidelines advisory regime)
- United States v. Wahid, 614 F.3d 1009 (9th Cir. 2010) (interpretation of §1028A(b)(3) limiting its application to predicate felonies listed in §1028A(c))
- United States v. Anzalone, 886 F.2d 229 (9th Cir. 1989) (clear-error standard for transcript accuracy findings)