United States of America v. Robert A. Loffredi

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1124
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. LOFFREDI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 1040—Ronald A. Guzmán, Judge.
ARGUED DECEMBER 11, 2012—DECIDED JUNE 18, 2013
Before BAUER, WILLIAMS, and SYKES, Circuit Judges.
PER CURIAM. Robert Loffredi appeals his sentence of
78 months’ imprisonment for mail fraud, 18 U.S.C.
§ 1341. He challenges only the district court’s imposition
of a two-level upward adjustment for an offense
involving ten or more victims. See U.S.S.G. § 2B1.1(b)(2)
(A)(i). We affirm the judgment.
Loffredi owned and operated a securities brokerage
firm that offered its customers investments in certificates

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2 No. 12-1124
of deposit, mutual funds, and Treasury bills. Instead of
purchasing the investments requested by his customers,
however, Loffredi diverted their money toward his
own personal expenses and business debts. Over four
years he fraudulently misappropriated approximately
$2.8 million from his brokerage customers. One customer
alerted the Securities and Exchange Commission to
some irregularities in his financial statements, and the
ensuing investigation led to an indictment charging
Loffredi with five counts of mail fraud. See 18 U.S.C.
§ 1341. He pleaded guilty to one count.
At issue here is the two-level upward adjustment
Loffredi received under U.S.S.G. § 2B1.1(b)(2)(A)(i) for
an offense involving at least ten victims. The probation
officer who prepared the presentence report counted
as victims each of the 14 defrauded customers whose
funds Loffredi had misappropriated. Loffredi filed writ-
ten objections to the presentence report, contending
that the only victim of the offense was his broker-dealer
parent firm, LPL Financial Corporation, which had reim-
bursed the losses of 12 of the 14 customers (Loffredi
reimbursed the other 2). At his sentencing hearing, his
attorney did not press the objection but instead argued
for a below-guidelines sentence based on the dispar-
ity in sentences resulting from a disagreement among
the circuits regarding this offense-level adjustment. The
district court accepted the presentence report’s factual
findings, including its calculation of the number of
victims, and sentenced Loffredi to 78 months’ impris-
onment, the top of the guidelines range.

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No. 12-1124 3
On appeal Loffredi argues that we should side with
the other circuits that, he believes, have interpreted the
guidelines in a way that would exclude his defrauded
customers from the victim tally. The guidelines define
“victim” in § 2B1.1(b)(2) as “any person who sustained
any part of the actual loss determined under subsec-
tion (b)(1).” U.S.S.G. § 2B1.1 cmt. n.1. “Actual loss,” in
turn, is defined as “the reasonably foreseeable pecuniary
harm that resulted from the offense.” Id. cmt. n.3(A)(i).
In United States v. Panice, 598 F.3d 426 (7th Cir. 2010),
we held that “[v]ictims whose losses were reimbursed
sustained an actual loss for the period of time up until
the point at which they were reimbursed” and are there-
fore properly counted as victims under § 2B1.1(b)(2)
along with those who reimbursed them. Id. at 433;
accord United States v. Stepanian, 570 F.3d 51, 55-56 (1st
Cir. 2009); United States v. Lee, 427 F.3d 881, 895 (11th Cir.
2005).
Loffredi argues that we should overturn Panice be-
cause, he says, other circuits give better effect to the plain
meaning of the language in the guidelines. He points
in particular to United States v. Yagar, 404 F.3d 967 (6th
Cir. 2005), which involved bank-account holders who
temporarily lost funds due to the defendant’s fraudulent
withdrawals but were reimbursed by the bank; the
Sixth Circuit held that because their losses were “short-
lived and immediately covered by a third-party,” the
account holders did not sustain any “actual loss,” id. at
970-72. Other circuits encountering similar circum-
stances have adopted the same reasoning. See United
States v. Kennedy, 554 F.3d 415, 419-22 (3d Cir. 2009);

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4 No. 12-1124
United States v. Conner, 537 F.3d 480, 489-91 (5th Cir. 2008);
United States v. Armstead, 552 F.3d 769, 782 (9th Cir. 2008).
Loffredi draws two principles from these cases: (1) the
word “sustained” implies some definite duration of
loss, and (2) individuals whose losses were reim-
bursed—and who therefore are not owed restitution in
the “actual loss” calculation under § 2B1.1(b)(1)—have
not suffered “any part of the actual loss” for the offense
and must not be counted as victims, lest the court
engage in improper double counting.
We reject Loffredi’s argument that a plain reading of
the word “sustained” compels the conclusion that a vic-
tim’s losses must be endured for some minimum period
of time. See Stepanian, 570 F.3d at 55 (relying on Black’s
Law Dictionary defining “sustain” to mean “ ‘undergo’ or
‘suffer’ ”); United States v. Pham, 545 F.3d 712, 718 (9th
Cir. 2008) (“[A]n individual who ‘sustained bodily
injury as a result of the offense’ would still be con-
sidered a victim under part B of the definition found in
application note 1 to U.S.S.G. § 2B1.1 even if he subse-
quently recovered from that injury.”). We stated in
Panice that the guidelines’ definition of “victim” contains
no inherent temporal baseline and does not require that
the loss persist through the time of sentencing. 598 F.3d
at 433. We are not persuaded by the reasoning of other
circuits that infer such a limitation from the text of
the guidelines.
Likewise, nothing about the plain meaning of “actual
loss” prohibits “double counting.” One can sustain “part
of” an overall loss even though the financial burden of

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No. 12-1124 5
the loss has shifted to someone else by the time the de-
fendant goes to court for sentencing because both par-
ties—the initial target of the offense and the party
who reimbursed the initial loss—have suffered pecuniary
harm that resulted from the offense. The amount of the
financial loss may not be doubly counted in computing
the total amount of restitution, but the number of indi-
viduals who bore that loss does not diminish merely
because of their eventual reimbursement. Moreover,
in the sentencing context, “double counting” is not a
disfavored concept; rather, it is a mechanism employed
by the guidelines in part to reflect the seriousness of
the offense. See United States v. Vizcarra, 668 F.3d 516, 518-
21 (7th Cir. 2012) (“[T]here is no general prohibition
against double counting in the guidelines.”).
Loffredi protests that this logic could lead to an endless
chain of victims where one victim’s loss is continually
reimbursed by someone else down the line, creating a
gross mismatch between the number of “victims” and
the amount of actual loss calculated under § 2B1.1(b)(1).
But he overlooks the fact that losses must be reasonably
foreseeable to the defendant in order to count as part of
the “actual loss” of the offense. See U.S.S.G. § 2B1.1 cmt.
n.3(A)(iv). So although one person’s financial loss may
have ripple effects, there will never be an endless chain
of “victims” as the guidelines use the term.
Finally, contrary to Loffredi’s assertions, Panice did not
foreclose the possibility that some individuals who
suffer an initial, negligible loss before reimbursement
may be excluded as victims because their reimburse-

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6 No. 12-1124
ment was so swift or—perhaps owing to contractual
obligations—so certain and complete that they suffered
no actual pecuniary harm. See Stepanian, 570 F.3d at 55 n.5
(declining to address the “situation where unauthorized
charges made on credit cards are reversed before tar-
gets actually pay for the charges”); Kennedy, 554 F.3d
at 419 (excluding account holders from victim tally
where government had not shown “that the account
holders even knew that their funds had been stolen
before they were completely reimbursed”); United States
v. Erpenbeck, 532 F.3d 423, 442 (6th Cir. 2008) (distinguish-
ing situation in which putative victim had immedi-
ate coverage from fraud due to contractual relation-
ship from situation in which victims “eventually had to
undertake a class-action lawsuit to seek relief”). We need
not explore that threshold in this case, however, because
Loffredi’s customers’ losses were neither short-lived
nor minuscule. Loffredi’s fraudulent misappropriations
went on for years before his customers caught on, and
the scheme’s success depended on misleading them
repeatedly into believing that their funds were secure.
Loffredi never asserted that his fraud was painless with
respect to his customers; he relied instead on an all-or-
nothing defense that the customers cannot be victims
because they were reimbursed. For the reasons stated,
we reject that contention.
AFFIRMED.
6-18-13

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