Restitution order must be based on actual loss to victim, not amount of defendant’s gain

SENTENCING/RESTITUTION United States v. Galloway, No. 06-1487, ___ F.3d ___ (10th Cir. Dec. 7, 2007)(Colorado). Appeal of restitution order imposed as part of sentence for convictions for fraudulent schemes to obtain mortgages and mortgage insurance for unqualified home buyers. HELD: District court erred by using defendant’s gain as measure of restitution owed in scheme to defraud government. Although gain may be used to determine defendant’s offense level for sentencing purposes, it is not appropriate estimate of loss for determining amount of restitution. Restitution order must be based on actual loss. Read the opinion here.