United States v. Sloan

FLAUM, Circuit Judge,

dissenting in part.

I join the majority’s opinion with the exception of part IIC2. Because I believe that the district court erred by increasing Sloan’s sentence under § 2F1.1(b)(4)(A), I respectfully dissent from that section. *896The rationale for the enhancement is that “defendants who exploit victims’ charitable impulses or trust in government create particular social harm.” U.S.S.G. § 2F1.1(b)(4)(A). The Guidelines commentary provides examples of such conduct to which this factor applies, including:

a group of defendants who solicit contributions to a non-existent famine relief organization by mail, a defendant who diverts donations for a religiously-affiliated school by telephone solicitations to church members, which the defendant falsely claims to be a fund-raiser for the school....

U.S.S.G. § 2F1.1(b)(4)(A), application note 5. In these examples, contributions or donations are an integral part of the fraudulent schemes that warrant the enhancement.

This Court has only decided one case dealing with an upward enhancement under § 2F1.1(b)(4)(A), and it too involved a scheme that exploited charitable donations. In United States v. Lilly, 37 E.3d 1222, 1228 (7th Cir.1994), this Court affirmed the enhancement for a defendant church pastor who told his victims that their certificates of deposit would be used to finance improvement of the church when in reality he used the money for his family’s personal expenses.

I find this case distinguishable from Lilly and the Guidelines examples because Sloan’s scheme did not take advantage of the victim’s charitable impulses; rather, it took advantage of their desire to make money and receive a free electricity generator. Indeed, the majority acknowledges that the victims testified that “they would not have paid to join the Christian Freedom Foundation had they known that they would not receive the generator or would receive less money in matrix payments than they had paid to the organization.” See supra p. 889.

The majority relies on the fact that Bemiller testified that she trusted the solicitation because the Christian Freedom Foundation was a Christian organization. Bemiller testified that she “wrote out the check. It sounded good. It had ‘Christian’ on it, so I thought well, this has got to be good.” Although Bemiller trusted the scheme because it was being orchestrated by a Christian organization, she did not subscribe to the organization because of its Christian purpose. She, like all of the other victims, subscribed because she thought that she would get a free electricity generator and a financial windfall. In my view, Sloan did not exploit his victims’ charitable impulses, and therefore I would hold that the district court erred when it enhanced his sentence under § 2F1.1(b)(4)(A).