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Fake Lawyer Howard Kieffer Wins Sentencing Error Appeal

By Robyn Hagan Cain | Last updated on

Howard Kieffer is kind of like Leonardo DiCaprio’s character in Catch Me If You Can, (without Leo’s movie star looks). Though he never attended law school or passed the bar, Kiefer gained admission to multiple federal trial and appellate courts, and managed successful law practices across multiple states.

Courts frown on fake lawyering, so they were not kind when Kieffer’s lies finally caught up with him. In 2009, a jury in the District of North Dakota convicted the defendant of mail fraud, and making false statements. The Eighth Circuit Court of Appeals affirmed the convictions. In 2010, a jury a Colorado federal court also convicted him of making false statements, in addition to wire fraud, and contempt of court. Monday, the Tenth Circuit Court of Appeals affirmed that conviction.

Kieffer challenged his Denver convictions before the Tenth Circuit, arguing both that the government failed to prove its case beyond a reasonable doubt, and that the court improperly applied the Sentencing Guidelines. The Tenth Circuit affirmed the conviction, but actually sided with Kieffer regarding the sentencing error argument.

Kieffer offered three arguments against the district court's application of the Sentencing Guidelines:

  • The district court improperly included his sentence in the District of North Dakota in its criminal history calculation under U.S.S.G. § 4A1.1, rather than the offense underlying that sentence in its consideration of relevant conduct under § 1B1.3.
  • The district court's failure to consider his offense in the District of North Dakota as relevant conduct enabled it to impose a sentence consecutive to the sentence imposed on him in North Dakota, contrary to § 5G1.3.
  • The court failed on the evidence presented to make a reasonable estimate of loss amounts under § 2B1.1 in its calculation of his offense level.

Kieffer also challenged the district court's restitution order based on the Government's failure to "prove actual loss amounts to identified victims of his scheme by a preponderance of the evidence," and the court's imposition of the special condition of supervised release that he obtain the probation office's approval before undertaking any occupational endeavor.

Kieffer must have learned something at his fake practice specializing in the Federal Sentencing Guidelines, because the Tenth Circuit ruled that Kieffer was correct that the district court calculation of his guideline range was "seriously flawed." For example, the Guideline's instructions for computing criminal history plainly state that "the term 'prior sentence' means any sentence previously imposed upon an adjudication of guilt ... for conduct not part of the instant offense," but the district court factored in Kieffer's North Dakota crimes when calculating his sentence in Colorado.

Kieffer's sentencing judge has a law degree and is properly-licensed to practice law; that doesn't mean that she's immune from mistakes. If you represent a client who is sentenced unfairly, get ready for your challenge in the Tenth Circuit Court of Appeals. If the Tenth Circuit judges are willing to vacate a fake lawyer's sentence, they'll probably be receptive to your sentencing error argument.

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