United States v. Hymas

A preponderance of the evidence standard is appropriate when calculating losses due to charged conduct; and a clear and convincing standard is appropriate when calculating losses related to dismissed charges.

Aaron Hymans ("A. Hymans") and Tiffany Hymas ("T. Hymans") were indicted on fraud charges relating to twenty mortgage loan applications submitted by the couple in the course of their housing construction businesses. The fraudulent loan applications were all orchestrated by A. Hymans although T. Hymans was also listed as a borrower on some loans. Both plead guilty to one count of wire fraud, and the additional counts were dismissed. A. Hymans was sentenced to 24 months of imprisonment, and both were required to pay restitution as calculated by the district court. A. Hymans' attorney objected to the restitution calculation, but T. Hymans attorney did not. However, both parties appealed the restitution order. A. Hymans also appealed his sentence under the theory that the district court should have applied a clear and convincing standard of proof. On appeal, the Ninth Circuit held that a preponderance of the evidence standard is appropriate when calculating losses due to charged conduct, and that a clear and convincing standard is appropriate when calculating losses related to dismissed charges. The panel also held that although the district court may have imposed the same sentence regardless of what standard applied, it did not do so, and the case, therefore, must be remanded to determine the proper sentence. AFFIRMED in Part, VACATED, and REMANDED in Part.