Fourth Circuit vacates another sentence at variance with the Guidelines

In United States v. Curry, Curry was convicted in a jury trial for various fraudulent transactions on e-bay. At base, Curry sold gold coins that he did not have. The district court sentenced Curry to twelve-month terms of incarceration on each count, to be served concurrently and followed by twelve months of home detention and three years of supervised release. This sentence was at variance with the Guidelines and the Government appealed.

The district court departed from the Guidelines and imposed a variance sentence because in its view that Curry did not at the outset intend to defraud the buyers. The Fourth Circuit held that this was an improper basis on which to depart because the district court contradicted the weight of evidence and the verdict. The district court also cited Curry's payment of restitution. Again, the panel held that this was insufficient: "we find that Curry's restitution is by itself insufficient to justify the 70 percent variance at issue" because "Curry did not begin making restitution until the jury convicted him of the charges." Hence, the sentence was vacated.