Submitted December 12, 2014
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee: Michael L. Cheever, Assistant U.S. Attorney, David Genrich, Assistant U.S. Attorney, William J. Otteson, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Minneapolis, MN.
For John Anthony Markert, Defendant - Appellant: Joseph S. Friedberg, JOSEPH S. FRIEDBERG, CHARTERED, Minneapolis, MN; Robert D. Richman, Saint Louis Park, MN.
John Anthony Markert, Defendant - Appellant, Duluth, MN.
Before LOKEN, BRIGHT, and KELLY, Circuit Judges.
LOKEN, Circuit Judge.
John Markert, while President of Pinehurst Bank (" the Bank" or " Pinehurst" ), approved five nominee loans by the Bank to friends and family of bank customer George Wintz. The loan proceeds were used to cover a nearly $1.9 million overdraft in Wintz's checking account at the Bank. A jury convicted Markert of willful misapplication of bank funds by a bank officer in violation of 18 U.S.C. § 656. At sentencing, applying Application Note 3 to U.S.S.G. § 2B1.1(b)(1), the district court found that Markert's offense caused an actual loss to the Bank equal to the total amount of the nominee loans, resulting in a 16-level enhancement and an advisory guidelines range of 87 to 108 months in prison. The court granted a substantial downward variance and sentenced Markert to 42 months in prison. Markert appealed his conviction and sentence. A divided panel affirmed the conviction, unanimously concluded that actual loss was erroneously calculated, and remanded for resentencing. United States v. Markert, 732 F.3d 920 (8th Cir. 2013).
On remand, the government again asserted that actual loss for purposes of § 2B1.1(b)(1) was the face amount of the nominee loans, subject only to a credit for $60,000 in principal repayments made prior to detection of the fraud, see § 2B1.1, comment. n.3(E)(i). After considering arguments of counsel, but without an evidentiary hearing, the district court agreed with the government and reduced its prior finding of loss only by the amount of those repayments. This small reduction did not affect the 16-level enhancement, see § 2B1.1(b)(1)(I), and the court " re-impose[d] the same 42-month term of imprisonment previously ordered."
Markert again appeals that sentence. We again review the district court's fact findings for clear error and its interpretation of the advisory guidelines de novo. See United States v. Holthaus, 486 F.3d 451, 454 (8th Cir.), cert. denied, 552 U.S. 939, 128 S.Ct. 343, 169 L.Ed.2d 241 (2007). As explained below, the government misinterpreted (or refused to follow) the relevant loss principles discussed in
our prior opinion.
Markert, 732 F.3d at 931-33. As a result, the government failed to sustain its burden to prove actual loss, and we must again remand for resentencing. Though we agree with the district court that " the loss here cannot be zero," we decline to give the government a third chance to present evidence meeting its burden of proof. Thus, on remand, actual loss for sentencing purposes is zero, reducing the advisory guidelines range to 12-18 months in prison. As Markert has already served more than 18 months, we reverse the district court's Order dated December 26, 2013, remand with instructions to sentence Markert to time ...