## Facts

- Eric Hoberg sought financing to build a grain mill in North Dakota and was advised that obtaining an insurance binder could help secure funding from a bank or finance company.
- Sheila Greenspan, acting as an intermediary for Hoberg, contacted Jay Elbel, who described himself as an attorney for Nigella Insurance Company.
- Nigella’s president was Dan Cimini, and Elbel represented that Nigella could provide an insurance guarantee for Hoberg’s project.
- Because Nigella was not a highly rated insurer, Elbel stated that a major insurance company would need to reinsure (or “wrap”) Nigella’s policy before the guarantee would be acceptable for financing purposes.
- Nigella was a sham company created by Luther McCaskill.
- To obtain the reinsurance, McCaskill contacted Ardeana Vance of A‑Vance Insurance Agency.
- Vance directed Greenspan to send Hoberg’s $35,000 binder payment to a company Vance controlled.
- The $35,000 was split among participants: McCaskill received $10,000, Vance received $10,000, Cimini received $10,000, and Elbel received $5,000.
- Hoberg never obtained financing for the grain mill project.
- McCaskill, Elbel, Vance, and Cimini were charged in a 32-count federal indictment arising from the scheme.
- Before trial, the charges against Vance were dismissed; Cimini pleaded guilty; and Elbel entered a pretrial diversion program.
- McCaskill was the only defendant who proceeded to trial, and he represented himself.
- The case went to the jury on three counts: conspiracy, wire fraud, and possession of forged securities.
- McCaskill was convicted on all three counts.
- The district court sentenced McCaskill to 60 months’ imprisonment on the conspiracy count and 60 months’ imprisonment on the wire-fraud count, to be served consecutively, and imposed a 68-month sentence on the forged-securities count, for a total of 188 months.
- McCaskill appealed his convictions and sentence.

## Issues

1. After *United States v. Booker*, may a district court increase the advisory Sentencing Guidelines range based on sentencing facts found by the judge (rather than charged in the indictment or found by a jury beyond a reasonable doubt) using a preponderance-of-the-evidence standard?
2. Did the district court violate the Sixth Amendment by relying on judge-found facts when calculating McCaskill’s advisory Guidelines range and imposing a total sentence of 188 months?

## Decision

- The court of appeals affirmed McCaskill’s convictions.
- The court of appeals affirmed McCaskill’s 188-month sentence.
- The court rejected McCaskill’s Sixth Amendment challenge to the sentencing process, concluding that post-*Booker* judicial fact-finding by a preponderance of the evidence is permitted when the Guidelines are treated as advisory.

## Legal Principles

- After *United States v. Booker*, the federal Sentencing Guidelines are advisory, not mandatory.
- When the Guidelines are advisory, a sentencing judge may determine relevant conduct and make factual findings that affect the advisory Guidelines calculation using a preponderance-of-the-evidence standard.
- The Sixth Amendment problem addressed in *Blakely*/*Booker* concerns judicial fact-finding that compels a higher sentence under a mandatory guideline system; treating the Guidelines as advisory resolves that constitutional defect so long as the sentence imposed remains within statutory limits authorized by the jury’s verdict.

## Conclusion

*United States v. McCaskill, 202 Fed.Appx. 70 (2006)* affirmed McCaskill’s fraud-related convictions stemming from a sham insurance-binder arrangement and upheld his 188-month sentence, holding that, in the post-*Booker* advisory-guidelines system, the district court could rely on judge-found sentencing facts proved by a preponderance of the evidence when calculating the advisory Guidelines range.
