Enhancement for Counterfeit Obligations Based on Face Value, Not Intended Loss

In United States v. Wright, No. 10-2970 (3d. Cir. June 1, 2011), the Third Circuit vacated a sentence of twenty months imprisonment and remanded for resentencing. The court recognized the facts of this case could never have been envisioned by the Sentencing Commission. Wright and a man he falsely identified as his brother attempted to sell $120,000 worth of fake U.S. currency for $60,000 to a small business owner. Wright and his "brother" told the business owner that their father was a politician and banker in Sierra Leone, who had recently been assassinated, and that he and his brother fled to the United States as refugees. They claimed to have brought with them millions of dollars in U.S. currency, that had been provided to Sierra Leone by the U.S. as aid. They claimed that the currency had been dyed black in order to prevent the use of the currency by rebels who might have intercepted it. In a meeting with the business owner, Wright and his "brother" demonstrated the process of cleaning the black papers with special solvent. After the two black papers they used for demonstration were "sloshed" in the solvent, they were revealed to be two genuine $100 bills. Distrustful of the arrangement, the small business owner notified the U.S. Secret Service. They arranged a second meeting, where the business owner told Wright that he was bringing another prospective buyer. At this time, they agreed to sell $200,000 worth of currency for $100,000. During this meeting, they again performed the demonstration, revealing two genuine $100 bills.

Wright’s "brother," Soko Kanneh, pled guilty and Wright chose to proceeded to trial. At the conclusion of his trial, the jury convicted Wright of possession of altered currency and conspiracy. Wright’s PSR recommended a base level offense of 9 plus an 8-level enhancement for a total offense level of 17.

Wright objected to the 8 level enhancement, as § 2B5.1(b)(1) bases the enhancement on the "face value of the counterfeit items." All parties in this case acknowledged the "face value" of the counterfeit items to be $400, the four $100 bills used for demonstration purposes. The district court overruled Wright’s objection, concluding that the enhancement could be applied based on the loss Wright intended to cause. Wright appealed.

The government argued the district court did not make a one-step enhancement based on § 2B5.1(b)(1), but instead made a two-step upward departure based on § 5K2.0(a)(2)(B), which allows upward departures where "there is present a circumstance that the Commission has not identified. . ." The Third Circuit acknowledged that by focusing on the face value of the defaced currency rather than the intended loss, § 2B5.1 does not address the gravamen of the harm, thus an upward departure under § 5K2.0(a)(2)(B) would be justified, as would an upward variance under § 3553(a)(2)(A). However, the Third Circuit found the district court did not reach its sentence by an upward departure or an upward variance, but rather, clearly based its sentence on an enhancement for intended loss based on § 2B5.1(b)(1). Because the language of § 2B5.1(b)(1) clearly states that the enhancements are based on the face value of the counterfeit currency, the Third Circuit found the district court erred in imposing the enhancement based on intended loss.