United States v. Vincent Bazemore
2016 U.S. App. LEXIS 18115
| 5th Cir. | 2016Background
- Vincent Bazemore ran a STOLI scheme: he misrepresented applicants’ net worth and intent to transfer policies, obtained large life policies for elderly applicants, paid premiums with loans, and collected commissions.
- Convicted of four counts of mail fraud; initial sentence used intended-loss based on $81M face value, producing a lengthy Guidelines range; this court affirmed conviction but vacated sentence and restitution in Bazemore I, directing proper loss measures.
- On remand, the PSR and district court recalculated loss using actual loss: insurers’ actual loss (commissions less retained premiums) plus lender’s actual loss (loans related to rescinded/settled/lapsed policies), totaling $2,685,574, yielding an 18-level enhancement and a 188-month sentence.
- Bazemore appealed the resentencing, arguing (1) law of the case/mandate rule barred any actual-loss enhancement, (2) errors in measuring lender loss (failure to account for Portigon’s sale to EAA and potential profits on active loans), (3) insufficient causation/foreseeability for losses, (4) proffer agreement breach, and (5) Apprendi challenge.
- The Fifth Circuit affirmed: law-of-the-case/mandate did not bind resentencing to zero actual loss; measuring lender loss at time of the first sentencing was permissible; excluding speculative profits on active loans was reasonable; losses were reasonably foreseeable and caused by Bazemore’s fraud; proffer and Apprendi arguments were waived or inapplicable.
Issues
| Issue | Bazemore's Argument | Government/District Court Argument | Held |
|---|---|---|---|
| Whether law of the case/mandate rule barred any actual-loss enhancement on remand | Earlier sentencing rulings established zero actual loss to insurers, so remand sentencing must not apply an actual-loss enhancement | Earlier rulings addressed methodology, not an explicit factual finding of zero actual loss; lender loss was not decided earlier | No; law of the case/mandate did not preclude actual-loss enhancement on remand |
| Proper time to measure lender’s actual loss after Portigon sold its interest to EAA | Loss should reflect Portigon’s later sale (showing full reimbursement) or be measured at resentencing when EAA held the interest | Guidelines allow measuring loss at initial sentencing; Goss supports using time of first sentencing to avoid rewards/penalties from appeal delay | Held: measuring actual loss at time of first sentencing was legally acceptable |
| Whether to offset lender loss with speculative future profits from active policies | Must offset lender loss by expected profits from active policies; excluding them undercounts loss | Future profits are speculative; Guidelines require reasonable estimate using known outcomes only | Held: excluding speculative profits from active policies was reasonable |
| Whether actual losses to insurers and lender were reasonably foreseeable and caused by Bazemore’s fraud | Losses resulted from insurers’ independent decisions or post-offense transactions (e.g., EAA purchase), so causation/foreseeability lacking | Policies would not have issued absent Bazemore’s fraud; commissions and lending losses were foreseeable consequences | Held: losses were reasonably foreseeable and caused by Bazemore’s offense |
Key Cases Cited
- United States v. Bazemore, [citation="608 F. App'x 207"] (5th Cir.) (prior appeal directing proper loss calculation and discussing intended vs. actual loss)
- United States v. Goss, 549 F.3d 1013 (5th Cir.) (measuring collateral value at time of initial sentencing)
- United States v. Olis, 429 F.3d 540 (5th Cir.) (review standards for loss-calculation methods)
- United States v. Binday, 804 F.3d 558 (2d Cir.) (excluding active, uncertain policies from actual-loss calculation as speculative)
- Apprendi v. New Jersey, 530 U.S. 466 (Sixth Amendment principle on facts that increase maximum sentence)
- Hurst v. Florida, 136 S. Ct. 616 (Supreme Court decision limited to capital sentencing scheme requiring jury factfinding)
- United States v. Tuma, 738 F.3d 681 (5th Cir.) (rejecting Apprendi challenge to judge-found Guidelines facts that do not increase statutory maximum)