United States v. Kirschner

United States v. Kirschner

Opinion

 [*331]  OPINION OF THE COURT

RESTREPO, Circuit Judge.

In 2018, Jonathan Kirschner pleaded guilty to one count of impersonating an officer acting under the authority of the United States and one count of importing counterfeit coins and bars with intent to defraud. At sentencing, the District Court applied to Kirschner's sentence three enhancements pursuant to the U.S. Sentencing Guidelines—a 2-level enhancement because Kirschner's fraud used sophisticated means; another 2-level enhancement because Kirschner abused a position of public trust to facilitate his crimes; and a 22-level enhancement because the "loss" attributable to his scheme was greater than $25 million but less than $65 million, even though it grossed only about one one-thousandth [**2]  of that.

Kirschner appeals the District Court's judgment of sentence and challenges the three enhancements it applied. For the reasons that follow, we will vacate Kirschner's sentence and remand for resentencing. While the District Court was well within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, we conclude it clearly erred in applying the 22-level enhancement for loss, and we cannot say that the error was harmless.

I. Background

In 2017, Jonathan Kirschner earned $30,105 by importing counterfeit coins and bullion and then, posing as a federal law enforcement agent, selling them as genuine articles to unsuspecting customers. Eventually, several customers discovered the coins or bullion they bought were fakes and alerted federal authorities—the real federal authorities. Pretending to be prospective buyers, federal agents set up a sting and snared Kirschner. Searching his home and interdicting packages destined for him, agents discovered and seized thousands of counterfeit coins and bullion that, according to the government's expert, would have been worth approximately  [*332]  $46.5 million if genuine. Agents also seized a plethora of numismatic and [**3]  bullion paraphernalia meant to mimic the idiosyncratic packaging materials used by the authentication agencies.

Kirschner subsequently pleaded guilty to one count of impersonating a federal agent, in violation of 18 U.S.C. § 912, and one count of importing counterfeit coins and bars with intent to defraud, in violation of 18 U.S.C. § 485. In the plea agreement, the parties agreed that the sentencing judge may impose any "reasonable sentence" up to the statutory maximums—three years for the § 912 count, and fifteen years for the § 485 count. The parties also agreed on the framework for calculating an appropriate sentence under the Guidelines. While acknowledging that the District Court retained "sole discretion" to impose Kirschner's sentence, App. 55, the parties agreed that, under the Guidelines, Kirschner's base offense level would be 6; the base offense level would be enhanced for "intended losses" by either 14 (according to Kirschner) or 22 (according to the government); and the resulting offense level would be reduced by 3 for Kirschner's acceptance of responsibility. The parties thus agreed that the total offense level ought to be 17 (if Kirschner's proposed enhancement for loss was adopted) or 25 (if the government's [**4]  was). The parties did not contemplate any further sentencing enhancements, reductions, or deviations.

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