United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE
2017, Defendant Gregory Gibbons pleaded guilty to one count
of conspiracy to commit wire fraud affecting a financial
institution, in violation of 18 U.S.C. § 1349. ECF No.
108, 109. In advance of sentencing, the parties submitted
memoranda disputing the proper calculations for restitution
and for loss under the Sentencing Guidelines. The Court
resolves those disputes in this Decision and Order.
Court has already analyzed the issue of restitution in
connection with the sentencing of co-defendant Laurence
Savedoff. See ECF No. 316. Although the government
continues to advance different restitution figures, it offers
no persuasive reason why the Court should reconsider its
prior order. Accordingly, the Court need not retread that
ground, and restitution will be ordered against Gibbons
consistent with the Court's November 20, 2019 Decision
and Order (ECF No. 316).
determine loss under the Sentencing Guidelines, the Court
must engage in a different analysis from that employed to
calculate restitution. See United States v. Zangari,
677 F.3d 86, 92 n.8 (2d Cir. 2012) (citing cases for
proposition that loss and restitution involve
“different methods of calculation” and are used
for “different purposes”). “Under U.S.S.G.
§ 2B1.1(b)(1), the base offense level for various crimes
resulting in financial loss is enhanced based on the amount
of loss.” United States v. Lacey, 699 F.3d
710, 713 (2d Cir. 2012). Loss “is the greater of actual
loss or intended loss, ” intended loss being “the
pecuniary harm that was intended to result from the offense,
” and actual loss being “the reasonably
foreseeable pecuniary harm that resulted from the
offense.” United States v. Skys, 637 F.3d 146,
153 (2d Cir. 2011) (emphases omitted). Furthermore, a
defendant receives credit against loss in the amount
“the victim has recovered at the time of sentencing
from disposition of the collateral” or, if the
collateral has not been sold, “the fair market value of
the collateral as of the date” of the guilty plea.
U.S.S.G. § 2B1.1 app. note 3(E)(ii), (iii). The
government must prove relevant sentencing facts by a
preponderance of the evidence, see United States v.
Salazar, 489 F.3d 555, 557-58 (2d Cir. 2007), and the
sentencing court need only make a “reasonable estimate
of the loss.” Lacey, 699 F.3d at 719.
parties agree on the losses that resulted from all but two of
the transactions. Therefore, the Court adopts those
1. 1732 Unionport Road: $30, 763.13
2. 4087 Edson Avenue: $22, 734.37
3. 814 Faile Street: $103, 308.23