Moore

MEMORANDUM *

Defendant Rahsaan Tahid Moore appeals his sentence, arguing that because his offenses had fewer than ten victims the district court erred by applying an enhancement under U.S.S.G. § 2B1.1 (b) (2) (A) (i). “This court reviews the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of [the] case for abuse of discretion, and the district court’s *17 factual findings for clear error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005). We vacate and remand for resentencing because, in light of the district court’s determination of loss under § 2Bl.l(b)(l), and limited by the arguments raised by the Government to that court, we cannot conclude that Moore’s crimes had at least ten victims.

I.

Individuals cannot be counted as victims for the purposes of U.S.S.G. § 2B1.1(b)(2)(A) unless the losses they suffered were “part of’ the district court’s determination of loss under § 2Bl.l(b)(l). See U.S.S.G. § 2B1.1 app. n. 1 (defining “victim” as “any person who sustained any part of the actual loss determined under subsection (b)(1) ”) (emphasis added); United States v. Leach,…

dissenting:

At the conclusion of Moore’s sentencing hearing, the district court held the individuals from whose bank accounts Moore stole money suffered “actual pecuniary losses,” and thus qualified as “victims” of Moore’s offense under the Sentencing Guidelines. To my surprise, the majority remands for resentencing because, despite the language just quoted, the district court purportedly failed to include the losses suffered by the individual account holders in its determination of “actual loss” under the Guidelines. See Maj. Op. at 17. Much like the unfortunate victims in this ease, I find myself at a loss: I simply cannot reconcile the district court’s expressed finding the individual account holders suffered “actual pecuniary losses” with the majority’s puzzling assertion these individual account holders’ losses were not included in the district court’s determination of “actual loss.” There is simply no other “actual loss” to which the district court could have been referring in its decision. Accordingly, I must respectfully dissent.

Rahsaan Moore admittedly conspired to steal hundreds of thousands of dollars from the bank accounts of over forty individuals. At issue in this…