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United States v. Kirschner

3rd Circuit

April 22, 2021

In 2018, the defendant pleaded guilty to impersonating an officer as well as importing counterfeit coins and bars with intent to defraud. At sentencing, the District Court applied three enhancements—a 2-level enhancement because the defendant’s fraud used sophisticated means; another 2-level enhancement because the defendant 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, though it grossed only about one-thousandth of that. The defendant appealed and challenged the application of the enhancements. In United States v. Kirschner, the Third Circuit vacated the defendant’s sentence and remand for resentencing. While the District Court was within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, it clearly erred in applying the 22-level enhancement for loss, and the error was not harmless

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