United States v. Michael Bourquin (6th Cir. July 2020)
Sentencing Guidelines – To support enhancement under U.S.S.G. § 2A6.1(b)(4) based on the defendant causing a “substantial expenditure” in responding to an offense, the government must provide specific evidence of his expenses and distinguish the expenses as substantial as opposed to typical.
Michael Bourquin was convicted of maliciously conveying false information concerning an attempt to kill, injure, or intimidate a former federal prosecutor by means of fire under 18 U.S.C. § 844(e). Specifically, he had called the FBI in West Virginia to report a fabricated story regarding a former inmate telling Bourquin about another, current inmate’s plot to kill a federal prosecutor. As a result, the government sent agents to interview the inmate, monitor the prosecutor’s house, reviewed surveillance footage, and interviewed Bourquin, including the use of a polygraph.
Bourquin eventually admitted that he lied and pleaded guilty without a plea agreement. At Bourquin’s sentencing hearing, the district court applied a four-level enhancement to Bourquin under U.S.S.G. § 2A6.1(b)(4) for causing “a substantial expenditure of funds to..otherwise respond to the offense.” The district court noted that the government had not provided a “specific accounting on the associated costs” of the government’s investigation and steps to protect the targeted prosecutor, but based the enhancement on the government’s description of the government’s activities, including the number of agents, the amount of surveillance, and “days and days of total manpower invested in the effort.”
Bourquin was sentenced to forty months’ imprisonment. He appealed, challenging the district court’s four-level enhancement because “the government failed to present sufficient evidence.”
The Sixth Circuit agreed, holding that the § 2A6.1(b)(4) enhancement required “proof of a ‘substantial expenditure of funds’” by a preponderance of the evidence. The Court held that the government “failed to introduce any evidence about the money it spent to respond to Bourquin’s offense” and therefore did not meet its burden. The Court further held that the government also failed its burden to show “that any expenditure of funds qualified as ‘substantial’ rather than typical.”
The Court also held that the government is “precluded from presenting additional evidence to meet its burden in support of the § 2A6.1(b)(4)(B) enhancement” upon remand because the government failed to meet its burden regarding the enhancement during the original sentencing hearing, even though it had notice since Bourquin contested it in the PSR and at the hearing, so the government was given “two opportunities to argue the issue.”
Appeal from the Eastern District of Michigan
Opinion by Donald, joined by Griffin and Stranch
Click here to read the opinion.