In the Courts

'Intended loss' under the Fraud and Deceit sentencing guideline is not limited by the amount of loss actually possible, or likely to occur, as a result of the defendant's conduct. So ruled the Fourth Circuit in United States v. Miller. In this case, Robert Miller, MD, appealed his prison sentence following his conviction for 22 counts of mail fraud in violation of 18 U.S.C. ' 1341 (West. 2000) for over-billing third-party insurers for services rendered in his medical practice. The Sentencing Guidelines used to sentence Miller direct courts to increase the offense level for defendants convicted of fraud commensurate with the amount of loss involved in the fraud. U.S.S.G. ' 2F1.1(b)(1).

On appeal, Miller challenged the district court's interpretation of 'loss' under the Sentencing Guidelines on two grounds. First, he argued that the district court erred in interpreting the term 'loss' under the Guidelines to encompass intended loss, rather than actual loss. Second, he argued that even if the district court correctly used intended loss in its calculations, the Guidelines limited intended loss to the amount of loss that was likely, or possible, and the loss calculated by the district court was not likely. The Fourth Circuit rejected both arguments.