The preponderance-of-the-evidence baseline for considering sentencing facts has long been established in the First Circuit. Indeed, the United States Court of Appeals for the First Circuit has considered, and rejected, arguments that the Fifth Amendment's Due Process Clause and the Sixth Amendment right to a jury trial prohibit the finding of sentencing facts by a preponderance of the evidence.
Between 2006 and 2008, a real estate developer, agent, and broker orchestrated a mortgage fraud scheme in Massachusetts. After his scheme was exposed, Cox was charged with multiple counts of bank and wire fraud and money laundering. A jury subsequently found Cox guilty on some of the charged counts, and he was sentenced to a below-guidelines term of 150 months of imprisonment. He appealed to the United States Court of Appeals for the First Circuit.
Was the conviction proper?
The district court did not err after a jury convicted defendant of eight of sixteen counts alleging wire and bank fraud, and unlawful monetary transactions when it adopted a presentence report that enhanced defendant's sentence using offenses of which he was acquitted, but then departed from the Guidelines sentencing range of 262-327 months and imposed a sentence of 150 months' imprisonment, or when it ordered defendant to forfeit $2,966,334. This was proper as defendant engaged in the same fraudulent conduct in persuading multiple banks to make loans to nominal or "straw" buyers he recruited to purchase multi-family homes.