In United States v. Leslie, (2d Cir.October 3, 2011) the court rejected the argument that a defendant’s incarceration stannding alone, should be treated as a withdrawal from the conspiracy for sentencing purposes.
Defendant was serving a bank fraud sentence in 2005, but during his incarceration others continued the scheme. In 2009, Leslie was transferred to federal custody and pled guilty to the same scheme. The total loss was more than $300,000, but defendant argued that he was only responsible for the losses incurred until his July 1, 2005, incarceration, although he admitted that he had taken no affirmative steps to withdraw from the conspiracy, such as cooperating with law enforcement or telling his co-conspirators that he had abandoned it. While the circuit agreed that incarceration could be some evidence of withdrawal, the defendant had the burden of showing something more, even for sentencing purposes. “The defendant’s imprisonment is but one factor to consider in deciding whether withdrawal occurred.”