170.

Evaluating the "Amount of Loss" for Sentencing in Odometer Fraud Cases

Many probation offices and courts have accepted the analysis described below. This has led to loss valuation of $3,000 to $6,000 per vehicle rolled, depending on the types of cars involved, and the size of the rollback. Generally, when vehicles are sold to consumers for $4,000 to $7,000, OCL argues successfully for loss per vehicle of $3,000. Where consumers pay in the range of about $8,000 to $12,000, OCL argues for a $4,000 loss per vehicle. Where retail values exceed $12,000, higher values are appropriate. This is true regardless of whether the defendant sold directly to consumers, or, as in most cases, to other wholesalers or to dealers. The consumer is the victim of these offenses, so the consumer price is the relevant starting point (if that information is available). OCL strives to attribute to defendants all vehicles whose odometers were rolled. This results in loss findings in the hundreds of thousands of dollars where only 100 vehicles are involved. Loss figures in the millions of dollars are common for more significant cases. Descriptions of defendants' violative behavior, and loss analysis, can be based on the "form" letters to probation at Civil Resource Manual 181 and Civil Resource Manual 182. Data related to particular cases, such as the number of vehicles involved, the average number of miles rolled off of odometers, and pricing information (if available), must be used to complete the letter. Effective November 1, 2001, the Sentencing Guidelines moved fraud offenses, including odometer fraud, to U.S.S.G. 2B1.1. Section 2B1.1 will apply only to crimes where the count of conviction occurred in whole or in part after November 1, 2001. This guideline is likely to result in higher offense levels than old 2F1.1, so 2F1.1 will continue to be used for offenses completed before November 2001. Analysis of loss under 2B1.1 is somewhat different than it was under 2F1.1, so a different analysis for the probation office and the court is needed. An analysis of loss under 2F1.1 is found in the form letter at Civil Resource Manual 181 ("Probation Letter for Convictions Where the Count of Conviction Occurred Prior to November 1, 2001"). Use Civil Resource Manual 182 ("Probation Letter for Convictions Where the Count of Conviction Occurred in Whole or in Part After November 1, 2001") for 2B1.1 cases. The letter refers to several attachments that are publications, as well as a declaration of Richard Diklich. These publications and the Diklich declaration can be obtained from OCL (202 307-0092). The agent assigned to a case needs to prepare an affidavit for him- or herself to execute containing information mentioned in the letter that is case-specific. This is information regarding the average rollback (number of miles), price information, and the number of vehicles whose odometers were altered by the defendant. The "Eppes Declaration" (Civil Resource Manual 175) is an example of such an affidavit. There are blanks in that affidavit that would be filled in to reflect the facts of a particular case. Not every item would be filled in for every case, since data may not be available for each item. To the extent information is not available, the arguments made in the various intertwined sentencing documents must be edited to omit references to such information. Responses to defense objections must be tailored to the defense arguments. Nevertheless, sentencing memoranda such as the ones provided at 176, 178, 183, and 184 can be used to set forth the government's position. In addition to the odometer sentencing arguments, the memorandum at Civil Resource Manual 183 and 184 contains an opposition to a defendant's request for a downward departure for diminished capacity under U.S.S.G. § 5K2.13. United States v. Alborz, 818 F. Supp. 1306 (N.D. Cal. 1993), has been cited against the government in various sentencing hearings. That case can generally be distinguished successfully, particularly by making an appropriate presentation to the probation office and obtaining pertinent pre-sentence report findings, so that the difficulty the court found in Alborz will not be present. Arguments that have succeeded in distinguishing Alborz are at Civil Resource Manual 179 et seq. [updated June 2008] [cited in USAM 4-8.310]