Background
Latroy Currie and Malik Marshall were leaders of a bank-fraud conspiracy whose members obtained stolen checks, created fictitious businesses with names resembling the checks’ intended recipients, opened fraudulent bank accounts, deposited the checks, and withdrew the proceeds. The conspiracy attempted to deposit at least $15 million and obtained more than $2.9 million.
Currie pleaded guilty to conspiracy to commit bank fraud. His presentence report attributed to him $15.4 million in intended loss and $2.9 million in actual loss. Marshall pleaded guilty to conspiracy to commit bank fraud and money laundering involving more than $10,000; his report calculated $10.9 million in intended loss and $1.6 million in actual loss. Applying the 2023 Guidelines commentary directing courts to use the greater of actual or intended loss, the district court imposed 20-level enhancements and sentenced Currie to 135 months and Marshall to 188 months, with Marshall also receiving a concurrent 120-month money-laundering sentence.
The Court’s Holding
The Eighth Circuit affirmed both judgments. The defendants’ sole appellate argument was that the district court should not have used intended loss to calculate their advisory Guidelines ranges because, after Kisor v. Wilkie, courts should not defer to commentary expanding the text of U.S.S.G. § 2B1.1.
The court held that its controlling precedent foreclosed that argument. Under United States v. Nock, the Eighth Circuit continues after Kisor to treat Guidelines commentary as controlling unless plainly erroneous and has specifically continued to apply the commentary requiring use of the greater of actual or intended loss. The district court therefore correctly considered intended loss when calculating both defendants’ offense levels.
Key Takeaways
- In the Eighth Circuit, the pre-2024 commentary to § 2B1.1 authorizes sentencing courts to calculate fraud loss using the greater of actual loss or intended loss.
- Kisor did not displace the circuit’s existing precedent on deference to Sentencing Guidelines commentary.
- Because intended losses exceeded $9.5 million for both defendants, the district court properly applied the 20-level loss enhancement.
Why It Matters
The decision confirms that, pending further guidance from the Supreme Court, Eighth Circuit sentencing courts remain bound to apply the circuit’s precedent permitting intended-loss enhancements under the earlier version of § 2B1.1. The opinion notes that the Supreme Court has agreed to consider the broader circuit split over deference to Guidelines commentary.
The ruling is particularly relevant to offenses governed by pre-November 2024 Guidelines, because the Sentencing Commission has since moved the intended-loss rule from the commentary into the guideline text.