Guidelines Calculation Plain Error

A federal jury convicted Roberto Trinidad del Carpio Frescas of engaging in write fraud and then laundering the proceeds. He “cheated” Mexican “investors” out of at least $5 million in a multi-year Ponzi scheme. He challenged his sentence.

Frescas challenged his sentence for the first time on appeal, arguing that the district court failed to calculate the offense levels for wire fraud and money laundering separately. Because he didn’t raise the issue in the district court the review was for plain error only.

The Fifth Circuit vacated his sentence, finding that the district court had missed the proper Guideline calculation by a single point but which changed the Guidelines range. The Court observed that the district court had sentenced Frescas under the money laundering Guideline, section 2S1.1(a). The note to that Guideline states, “application of any Chapter Three adjustment(s) shall be determined based on the offense covered by this guideline (i.e., the laundering of criminally derived funds) and not on the underlying offense from which the laundered funds were derived.” The district court had imposed two sentencing enhancements based on Frescas’s wire-fraud conduct, not his money-laundering conduct. This, the Court said, was plain error.