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Sentence of Con Man Who Preyed on Elderly Is Affirmed
Two Members of Ninth Circuit Panel Say Evidentiary Standard at Sentencing Should Be Reexamined
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has upheld the conviction of a Canadian telemarketer who conned more than 80 senior citizens out of funds totaling in excess of half a million dollars by impersonating their grandchildren over the telephone, claiming to be in distress in a foreign nation, and asking for funds to be wired to them.
Defendant Kelen Magael Buchan of Nova Scotia argued on appeal that the conviction pursuant to his guilty plea to one count of mail fraud, and his sentence to four years and three months in prison, should be reversed because District Court Judge Cormac J. Carney of the Central District of California used the wrong evidentiary standard in sentencing.
Two of the judges—Ryan D. Nelson and Sandra S. Ikuta—in a concurring opinion called for possible en banc review to consider what the standard should be.
Factual Determinations
Cormac erred, according to Buchan, in finding two enhancement allegations true by a preponderance of the evidence rather than applying the clear and convincing standard. Wednesday’s memorandum opinion says:
“Even if the district court erred when it applied the preponderance standard instead of the clear and convincing standard at sentencing to the two disputed enhancements…, any error was harmless because the district court held that it would have reached the same conclusion had it applied the clear and convincing standard, and this conclusion is not clearly erroneous.”
It notes that “scheme-related materials were located in Buchan’s bedroom dating back to the beginning of the scheme in December 2011, including a managerial cell phone that contained outgoing messages with the same pattern of speech as Buchan’s prison communications.”
Restitution Amount
Carney—who commented at sentencing that he might not have seen a fraud case “so cruel and heartless,” that victims were senior citizens who were duped into parting with “their life savings and their retirement” and that “gang-on-gang violence to me is more understandable than something like this”—ordered Buchan to pay restitution in the amount of $519,400. Buchan contested the amount on appeal.“Buchan waived his objection regarding the restitution order because he failed to raise that objection to the district court,” the opinion says.
Judge Mark J. Bennett joined in that opinion. Nelson wrote a concurring opinion, with Ikuta joining in the portion of it in which he asserted that the circuit should abandon its rule that the clear and convincing evidence standard be applied where factual findings at sentencing could “have an extremely disproportionate effect on the ultimate sentence.”
Concurring Opinion
That rule evolved, Nelson said, when sentencing guidelines were mandatory. He wrote:
“Now that the Guidelines are advisory, district courts have discretion to sentence anywhere within the entire statutory range, full stop….Accordingly, factual findings at sentencing cannot logically lead to a sentence that is ‘extremely disproportionate’ relative to the mandatory sentence that would be imposed absent the factual finding….because there is no longer any mandatory Guideline sentence at all.” The judge continued:
“Rather, the only ‘mandatory’ range…is the statutory range. As long as the ultimate sentence falls within that range and meets all other requirements, a district court could sentence well beyond the Guidelines range without making any additional factual findings.
“The reasoning of the clear and convincing evidence rule rested on the mandatory nature of the Guidelines: That’s why every other circuit got rid of the rule once the Guidelines became advisory. We should follow suit, en banc if necessary.”
Defendants Extradited
Buchan and three co-defendants were extradited from Canada. It was admitted that one of the victims resides in Camarillo.
The FBI, the United States Secret Service, the Royal Canadian Mounted Police and other agencies participated in the investigation.
One victim was an 86. He wired $4,300, supposedly to his grandson in Bolivia.
The person pretending to be the grandson claimed he had been in an accident.
Contact information for the victim was found in Buchan’s bedroom and evidence of the call was recovered from a phone in that bedroom.
The case is U.S. v. Buchan, No. 19-50272.
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