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Jan
13

Determining the Loss Amount and Relevant Conduct

A. Loss amount
1. Relevant Conduct USSG § 1B1.3
Prior to November 1, 1992, a co-conspirator was held responsible for all reasonably foreseeable quantity of drugs involved in the conspiracy, regardless of the scope of the defendant’s agreement to participate. See United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir.), cert. denied, 505 U.S. 1210, 112 S.Ct. 3007, 120 L.Ed.2d 882 (1992).
On November 1, 1992, a clarifying amendment to § 1B1.3 became effective. See, U.S. v. Butler, 41 F.3d 1435, 1443 (n.7). Section 1B1.3(a), as amended, provides that a defendant is responsible for:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity [.] U.S.S.G. Sec. 1B1.3(a).
The amendment also included commentary that explains how section 1B1.3 should be applied in cases of jointly undertaken criminal activity. Application note 2 of the commentary provides:
A “jointly undertaken criminal activity” is a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged in the conspiracy.

In the case of a jointly undertaken activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both:

(A) in furtherance of the jointly undertaken criminal activity; and
(B) reasonably foreseeable in connection with that criminal activity.
Furthermore, the commentary states:
In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake ( i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct of others that was not in furtherance of the criminal activity jointly undertaken by the defendant, or was not reasonably foreseeable in connection with that criminal activity, is not relevant conduct under the provision.

As such, reasonable foreseeability alone is no longer sufficient to establish accountability. Instead the defendants are only accountable for other conduct that was reasonably foreseeable and within the scope of the criminal activity that the defendant agreed to undertake.
That is, “to determine a defendant’s liability for the acts of others, the district court must first make individualized findings concerning the scope of criminal activity undertaken by a particular defendant.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993) (citing U.S.S.G. § 1B1.3, cmt. (n.2)); United States v. Bush, 28 F.3d 1084, 1087 (11th Cir.1994) (same); see also United States v. Campbell, 279 F.3d 392, 400 & n. 5 (6th Cir.2002) (same, and cases cited therein); United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995) (“This determination, as it goes to prong one of the test, must be made before the issue of foreseeability, prong two, is reached.”). Only after the district court makes individualized findings concerning the scope of criminal activity the defendant undertook is the court to determine reasonable foreseeability. See Bush, 28 F.3d at 1087 (drug conspiracy); Studley, 47 F.3d at 574-75 (fraud case; citing Bush). U.S. v. Hunter, 323 F.3d 1314 (11th Cir., 2003).
In Hunter, the district court erred because it simply held that because each defendant knew that he or she was part of a ring, he or she should be held accountable for all of the acts of all of the members. Yet the Guidelines establish that the fact that the defendant knows about the larger operation, and has agreed to perform a particular act, does not amount to acquiescence in the acts of the criminal enterprise as a whole. Campbell, 279 F.3d at 400, 401; Studley, 47 F.3d at 575. The district court erred in not making particularized findings as to the scope of each Appellants’ agreement in the larger counterfeit check cashing operation.

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