The defendant embezzled a total of 933,369 USD from his company’s profit sharing plan, but that he returned money to the plan, resulting in a shortfall of 468,663 USD.
The judgment of the trial court was affirmed.
Calculation of loss occurred in result of embezzlement under U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) has to account for an amount of each deprivation. In determining the hardness level of sentence the court must take into account whether deprivation of funds was of permanent or of temporary nature.
The provision in U.S. Sentencing Guidelines Manual § 2B1.1 commentary, application note 2 states that certain offenses consisting of a series of transactions without a corresponding increase in loss, may not encompass the return and re-embezzlement of funds. In this case since each act of embezzlement represents a separate delinquent act which implies an additive loss calculation.
(a) whether the hardness level of sentence was justified and (b) whether enhancement of the liability for obstruction of justice has a sufficient legal reason.
The appellate court asserted that the trial court did not err in calculating the amount of the loss and determining the offense level in compliance with U.S. Sentencing Guidelines Manual § 2B1.1(b)(1). It was admitted that “each unlawful withdrawal reflected a completed act of embezzlement… [T]he trial court did not abuse its discretion in declining to reach the question of enhancement for obstruction of justice… Appellee was not entitled to an enhancement for appellant’s alleged perjury during sentencing, because appellee failed to disclose that it possessed an anticipated rebuttal witness”.