Under federal sentencing guidelines, Sonni Wilson’s sentence for bank fraud was enhanced based on the trial court’s finding that he was “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” A key dispute was whether, in determining if activity is “otherwise extensive,” a court should look primarily at the number of persons involved in the activity (the test adopted by the Second and Third Circuits), or look to the overall scale of the activity under the totality of the circumstances (the test adopted by several other circuits). Based on the Sentencing Commission’s Commentary’s focus on the role of unknowing actors, and concern about “unconstrained inquiry” and “double counting” (consideration of factors that have already been used to establish the base offensive level), the court sided with the Second and Third Circuit approach. Thus, the court found that there was no basis for the enhancement under the guidelines, and vacated the sentence.
Garland, dissenting in part, would have upheld the sentence. He sided with the view that “otherwise extensive” encompassed more than headcount; the guidelines and Commentary support an assessment of factors like duration, geographic reach, degree of organizational sophistication, and number of constituent transactions. Garland wrote that such an approach, based on a “commonsense reading of the term,” is no more unconstrained than the search for meaning of other vague guideline terms; moreover, the trial court’s discretion is ultimately constrained by appellate review. As for double counting, Garland wrote that the Commission expressly forbids it where it is not intended, and here, there is no indication that double counting was disfavored. And, he wrote, double counting is not truly an issue in this case, as the same conduct was used in addressing different attributes of culpability.