Salusthian Lutamila, formerly the Director of Finance at the Inter-American Development Bank – IIC Federal Credit Union, was convicted of bank fraud, theft by credit union employee, wire fraud, and money laundering. He had made unauthorized transfers totaling $610,000 from the credit union to his personal account. Although the credit union eventually recovered all but $76,069 of the funds, the Presentence Investigation Report calculated the 'loss' for sentencing purposes as the full $610,000. This calculation resulted in a guideline range of 51 to 63 months. While Lutamila argued in his sentencing memorandum and at the hearing that the guidelines were flawed and that loss should be measured as the unrecovered $76,069, he did not explicitly object to the court's statement that the guideline range was 51 to 63 months. Instead, he framed his arguments as a request for a variance based on the factors in 18 U.S.C. § 3553(a). The district court sentenced him to 44 months, a below-guidelines term, but Lutamila appealed, challenging the underlying loss calculation.
The court determined that Lutamila failed to preserve his argument regarding the definition of 'loss' for appellate review. Because his counsel did not object when the district court stated the guideline range was 51 to 63 months, and because Lutamila had previously agreed to that range in his sentencing memorandum, the appellate court applied plain error review. Under this standard, an error must be clear or obvious to warrant reversal. The court analyzed the text of U.S.S.G. § 2B1.1 and found that the term 'loss' is not unambiguously defined as 'net loss' after recovery. The guidelines define loss under the heading 'Specific Offense Characteristics,' suggesting it refers to the amount taken at the time of the offense. Furthermore, the concept of 'relevant conduct' includes all harm that resulted from the defendant's acts or was the object of those acts. The court noted that dictionaries offer conflicting definitions of 'loss,' with some suggesting the total amount transferred and others suggesting the net diminution of value. Since Lutamila could not show that the district court's interpretation was clear or obvious error, and because no controlling precedent supported his reading, the court affirmed the judgment.
The decision affirms that defendants must explicitly object to the district court's calculation of the guideline range at sentencing to preserve the issue for appeal. It reinforces that 'loss' under the fraud guidelines can reasonably include funds that were stolen but later recovered, preventing defendants from arguing for a lower offense level based solely on restitution. The 44-month sentence remains in effect, and the mandate is withheld for seven days pending any petition for rehearing.
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