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07-2584 & 07-2585 U.S. v. Orsburn
Sentencing
Mail fraud
Even though defendants were convicted of mail fraud, where the crime is more similar to theft of honest services, U.S.S.G. 2B1.1.
"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."
Affirmed in part, and Vacated in part.
07-2584 & 07-2585 U.S. v. Orsburn
Appeals from the United States District Court for the Northern District of Indiana, Lozano, J., Easterbrook, J.
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