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Thursday, May 08, 2008

Ind. Decisions - One Indiana decision from 7th Circuit today

In U.S.A. v. Teresa and Michael Osburn (ND Ind., Judge Lozano), a 7-page opinion, Chief Judge Easterbrook writes:

In 1998 Michael Orsburn was elected Trustee of Keener Township in Jasper County, Indiana. The Trustee administers funds for emergency services and relief of the poor. Michael appointed his wife, Teresa Orsburn, to keep records and write checks. The Orsburns were poor custodians of the public’s funds. Between 2000 and 2004 they embezzled about $310,000, roughly 15% of the money that passed through their hands. Teresa wrote checks to Michael using erasable ink; after they had been deposited in Michael’s personal checking account and the cancelled checks mailed back to the Trustee’s office, Teresa replaced Michael’s name with that of a more plausible recipient. * * *

The best way to treat similar situations alike—and thus to avoid unwarranted disparities in sentencing, see 18 U.S.C. §3553(a)(6); United States v. Boscarino, 437 F.3d 634 (7th Cir. 2006)—is to start with the right Guideline and then make adjustments at the margin. Starting with the right Guideline is essential, see Gall v. United States, 128 S. Ct. 586, 596–97 (2007), independent of any concern about disparities. Giving the Orsburns sentences apt for bribe-payers or bribe-takers would produce an unwarranted disparity. They should be classed with other embezzlers, with a potential for a higher sentence on account of their public positions if the district judge deems the adjustment under §3B1.3 inadequate.

The convictions are affirmed, but the sentences are vacated, and the cases are remanded for resentencing consistent with this opinion.

Posted by Marcia Oddi on May 8, 2008 01:26 PM
Posted to Ind. (7th Cir.) Decisions