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United States v. Lofink

April 29, 2009


On Appeal from the United States District Court for the District of Delaware (D.C. No. 08-cr-001) District Judge: Honorable Gregory M. Sleet.

The opinion of the court was delivered by: Jordan, Circuit Judge


Submitted Under Third Circuit LAR 34.1(a) March 27, 2009

Before: RENDELL, AMBRO and JORDAN, Circuit Judges.


The United States District Court for the District of Delaware sentenced Defendant Anthony Lofink for his convictions on charges of wire fraud, conspiracy to commit wire fraud, and conspiracy to commit money laundering. Lofink had moved for a departure from the Guidelines range contained in the Presentence Investigation Report ("PSR"), butthe District Court denied the motion on the basis that it had taken Lofink's arguments into account when fashioning his sentence. Because our precedents require district courts to decide departure motions on their merits in order to satisfy the requirement of procedural reasonableness, we will vacate the sentence and remand for resentencing. In doing so, however, we intimate no opinion as to the merits of Lofink's departure motion or the substantive reasonableness of the sentence the District Court imposed.



Lofink was employed as a claims processor for the State of Delaware's Bureau of Unclaimed Property (the "Bureau"). The Bureau is responsible for overseeing the transfer of unclaimed property to the State through the legal process of escheat.*fn1 Delaware law also allows former owners of escheated property to file a claim for recovery with the Bureau for the value of that property. Del. Code Ann. tit. 12, §§ 1143, 1146.

As a claims processor, Lofink had a number of formal responsibilities. He sent claim forms to potential claimants after they had contacted the Bureau, and he ensured that the forms, when returned, were properly completed, notarized, and accompanied by supporting documentation. Although he had authority to approve claims for property valued at up to $1,000, larger claims were supposed to require two additional levels of review.*fn2 Once claims were approved, Lofink would prepare payment vouchers. Such vouchers were typically approved by the Director or Assistant Director of the Division of Revenue, and then the Office of the State Treasurer would prepare checks in amounts corresponding to the approved claims.The Bureau would receive the checks, and Lofink was responsible for their distribution. In practice, Lofink's supervisors entrusted him with managerial discretion, and their review of the claims and supporting documents was limited.

Between May 2005 and July 2007, Lofink fraudulently processed and shared in the proceeds of nine false claims, ranging in value from approximately $20,000 to $200,000 and totaling $1,245,247.53.*fn3 These claims, submitted by Lofink's co-conspirators,*fn4 included false representations that the claimants were owners of stock in predecessors of Time Warner, Inc. To ensure the claims' success, Lofink would forge letters from Time Warner, using as a model a genuine letter submitted to the Bureau from Time Warner, indicating that Time Warner had documentation to support the claim. Lofink would also log on to the State's computer database using his supervisors' passwords (at least one of which was, conveniently, "password") to record claim approvals without their knowledge.

Lofink and his co-conspirators made some effort to structure their financial transactions to avoid detection of the fraud, but his purchases were hardly discrete. With his ill-gotten gain, Lofink bought drugs, expensive cars, jewelry, clothing, and cosmetic procedures, and he entered into an agreement with one of his co-conspirators to open a tanning salon in New Castle, Delaware.

Investigators eventually caught on to Lofink's scheme,*fn5 and he was charged with wire fraud in violation of 18 U.S.C. § 1343, conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956. Pursuant to a plea agreement, Lofink waived indictment and pled guilty to all three counts.


The Pre-Sentence Report ("PSR") calculated Lofink's base offense level as 23 for his conviction for wire fraud involving a loss of more than $1,000,000 but not more than $2,500,000.*fn6 See U.S.S.G. §§ 2B1.1(a)(1), (b)(1)(I), 2S1.1(a)(1). The PSR then proposed three two-level increases: one because Lofink was also convicted for money laundering, see U.S.S.G. § 2S1.1(b)(2)(B); one for his role as an organizer/leader in the criminal activity, see § 3B1.1(c); and one forhis abuse of a position of trust, see § 3B1.3. Lofink received a three-level decrease for his acceptance of responsibility. See § 3E1.1. The resulting total offense level of 26, when combined with his criminal history category of I, yielded a sentencing range of 63 to 78 months.

Lofink objected to the position-of-trust enhancement proposed by the PSR, arguing that he only possessed low- level authority to process claims. The District Court overruled that objection, finding that the ...

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