United States v. Marcum

In United States v. Marcum, No. 23-10703 (5th Cir. Apr. 8, 2024) (unpublished), the Fifth Circuit rejected the defendant’s argument that his sentence was improperly enhanced under USSG § 2B1.1(b)(1) based on losses caused by his codefendant.

In the district court, Marcum had pled guilty to wire fraud in violation of 18 U.S.C. § 1343. Marcum admitted that he falsified reports and made misrepresentations about his business finances, resulting in $14 million in losses for over 90 investors.

Marcum’s codefendant used a different method to defraud investors, but that difference was insufficient to prove a separate scheme given that the two defendants had “acted in concert to defraud investors.”  For that reason, the district court did not err by treating losses caused by Marcum’s codefendant as relevant conduct, which was “within the scope of their joint criminal activity” and “reasonably foreseeable” to Marcum.  See USSG § 1B1.3.