United States v. Joshua Fauncher

MEMORANDUM

Defendant Joshua Vincent Fauncher appeals the 11-month sentence imposed following his guilty plea to one count of conspiracy to commit wire and bank fraud in violation of 18 U.S.C. § 1349 , in connection with a multi-level “phishing” conspiracy originating in Egypt. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291 . The facts are known to the parties, and we do not recite them here.

Whether the district court violated due process by using an improper standard of proof is a question of constitutional law that the Court reviews de novo. United States v. Berger, 587 F.3d 1038, 1042 (9th Cir.2009). We find that the district court correctly applied the preponderance of the evidence standard in determining that the sentencing enhancement for overseas nexus in a fraud scheme applied. The district court imposed an 11-month sentence, which was 4 months below the low end of the 15- to 21-month United States Sentencing Guidelines (“U.S.S.G.”) range and only one month higher than the high end of the unenhanced range of 4 to 10 months. Under the totality of the circumstances, and in light of the ultimate sentence imposed, the enhancement did not have an extremely…