district court, without making specific factual findings, rejected Geringer’s request to reduce the amount of loss by the value of the fund’s assets. The court concluded that “those sums ... are more appropriately placed and legally placed in the restitution column.... I don’t think they legally apply to the current state of the case.” This is incorrect. A victim’s loss should be offset by the victim’s benefit for the purpose of calculating loss under the Sentencing Guidelines. See United States v. W. Coast Aluminum Heat Treating Co., 265 F.3d 986, 992 (9th Cir. 2001). Under this principle, the district court was obligated to determine the actual value, if any, of the fund, and to deduct that value from the amount of loss. See United States v. Leonard, 529 F.3d 83, 93 (2d Cir. 2008) (<HOLDING>). The district court erred by failing to do so.
holding that district court erred in failing to consider evidence of secondary considerations holding that district court erred by failing to follow prejudgmentinterest accrual date in state statute holding that a defendant waived a sentencing issue by failing to object in district court holding that the district court erred in failing to properly charge the jury on defendants affirmative defenses holding that the district court erred by failing to determine and deduct the actual value of securities received by fraud victims