Spend enough time in the trenches and you get to learn how the secret language of law develops.  Older lawyers remember when “use and carry” of a firearm meant that a defendant physically possessed a gun and displayed it during the commission of a drug deal.  Then it meant that there was a gun in the next room that no one knew about.  The words “use and carry” took on a life of their own.

The same could be said of “intended loss” as applied to the federal sentencing guidelines, which grew wings and took flight in the fertile minds of prosecutors.  It was like “chaos theory” as applied to loss, flowing to places that no one ever considered.  The only limitation was the prosecutor’s imagination and the judge’s willingness to get the sentence over.

The 10th Circuit, however, said the unthinkable in United States v. Manatau, a small-time identity theft case where the defendant made a habit of stealing “convenience checks,” those faux checks credit card companies send people who don’t want them, never asked for them and are little more than an invitation for theft.  Manatau, unfortunately, wasn’t very good at it. Not only did he get caught five times before the feds indicted him, but he significantly undervalued the credit limit when he filled in the blanks, and stole far less than he could have.  What a maroon.

That, of course, didn’t stop the government from trying to milk his sentence for all it was worth.  While the actual loss Manatau caused was embarrassingly small, that’s not the end of the discussion.

Seeking to calculate the applicable advisory guidelines sentence, the district court focused on U.S.S.G. § 2B1.1(b)(1). Under that provision, a court must compare the economic loss the defendant “actual[ly]” inflicted on his victims with the loss he “intended to result from the offense” even if it was never realized. See U.S.S.G. § 2B1.1 cmt. n.3(A)(i)-(ii). A court must identify the greater figure, the actual or intended loss, and then proceed to one of the guidelines’ inevitable charts.

What would a sentence be if it didn’t beg for the greater amount? In this case, the difference added between six to 12 months to the sentence, as the actual loss was a piddling $1,840, but the government contended that the “intended” loss was $60,000.

To reach this figure, the government argued (among other things) that the district court should simply tote up the credit limits of the stolen convenience checks. Whether or not Mr. Manatau ever intended to reach those credit limits, the government said, is neither here nor there. It is enough, the government represented, that a loss up to the credit limits was “both possible and potentially contemplated by the defendant’s scheme.”

This might actually be considered a fairly conservative estimate by the government, since they could have just as easily argued that Manatau planned to steal 100 (or maybe 1000) additional convenience checks, and upped the number to $1,000,000.  Once reality no longer serves as a constraint, anything is possible.  Apparently, this very thought occurred to the court as well.

We hold that “intended loss” means a loss the defendant purposely sought to inflict. “Intended loss” does not mean a loss that the defendant merely knew would result from his scheme or a loss he might have possibly and potentially contemplated.

Whether the defendant “knew” is itself a very iffy proposition, as he was apparently a dope at best, and an incredibly small-timer at worst.  But still, the court defines intended as that which he purposely sought to inflict.  As in, “intent” means, wait for it, “intent.”

The Circuit apparently feels just awful about its having defined a word to mean exactly what it says, so it proceeds to justify itself.

This definition is, of course, seriously circular, using the term “intended” to define itself not just once but twice. At the same time, the sentencing commission’s definition offers us no reason to think it wished us to apply anything other than the word’s ordinary meaning. If anything, the commission’s (repeated) use of the word “intended” to define itself suggests that the commission thought the word’s meaning was pretty plain. And in contemporary usage, it is. Something is intended if it is done on purpose — not merely known, foreseen, or just possible or potentially contemplated.

You can almost feel their pain in interpreting a word to mean what it says, a rending of the very fabric of federal criminal statutory construction.  And yet, the court held firm to its conclusion, that intent means intent.

But the guilt must have been too much for the court to bear, as it went on to assure that its firm, clear holding conformed to the requirement that no circuit court of appeals fail to offer love to the government.

[T]he district court should examine what losses Mr. Manatau intended.   Of course, in answering this question the court is free, as we have explained, to make reasonable inferences about the defendant’s mental state from the available facts. In the sentencing context, too, the government need only prove Mr. Manatau’s intent by a preponderance of the evidence, and the court need only make a “reasonable estimate” of the intended loss.

There’s the Court of Appeals we’ve all come to know and love, who giveth with one hand and taketh away with the other.  While the government may not be allowed to create wild and wonderful scenarios of intended loss that encompasses slightly less than the gross domestic product of China, it still need only offer the argument that most closely matches a judge’s fiscal sensibilities to meet its burden.

Though the 10th Circuit may have upset the balance of nature by employing the circular reasoning of words having their actual meaning, it returned the law to equilibrium by reminding us that it’s all just a figment of a reasonable judge’s imagination.  Carry on.