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United States v. Gibbons

United States District Court, W.D. New York

January 15, 2020

UNITED STATES OF AMERICA,
v.
GREGORY GIBBONS, Defendant.

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. CHIEF JUDGE

         INTRODUCTION

         In July 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.

         DISCUSSION

         I. Restitution

         The 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).

         II. Guideline Loss

         a. Legal Standard

         To 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.

         b. Undisputed Losses

         The parties agree on the losses that resulted from all but two of the transactions. Therefore, the Court adopts those undisputed losses:

1. 1732 Unionport Road: $30, 763.13
2. 4087 Edson Avenue: $22, 734.37
3. 814 Faile Street: $103, 308.23 ...

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