U. S. v. Nitzkin

Dist. Ct. erred in sentencing defendant to 42-month term of incarceration on wire-fraud charge that stemmed from defendant’s scheme to embezzle $150,000 from charity that defendant served as its executive director, where said sentence was based, in part, on section 2B1.1(b)(9)(A) of USSG, which applies two-level enhancement when offense involved misrepresentation that defendant was acting on behalf of charitable organization. While defendant argued that enhancement did not apply because there was no misrepresentation of his status as charity’s executive director, Dist. Ct. found that enhancement applied because of defendant’s intent about disposition of money coming into charity. Ct. of Appeals found that remand was required for new sentencing hearing because Dist. Ct. failed to consider Application Note 8(e)(i), which instructs Dist. Ct. not to impose instant enhancement under section 2B1.1(b)(9)(i) if conduct that formed basis for said enhancement is only conduct that formed basis for enhancement under section 3B1.3 of USSG, which Dist. Ct. also imposed on defendant. As such, Dist. Ct. must determine on remand if enhancements under sections 2B1.1(b)(9)(i) and 3B1.3 rested on different conduct.