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3d 74
80 A.F.T.R.2d 97-8434
returns prepared by Bryant that were not audited. On appeal, Bryant contends
that the attribution to him of $600,000 in losses with respect to unaudited
returns was speculative and unfair. In his pro se brief, Bryant also contends that
he was unfairly denied access to the tax documents from which the $4,461,633
loss was calculated. Finding no merit in any of these contentions, we affirm.
2
Similarly, the commentaries to 2B1.1 and 2F1.1 state that, for purposes of
calculating the offense level for theft and fraud offenses, respectively, "the loss
need not be determined with precision. The court need only make a reasonable
estimate of the loss, given the available information." Guidelines 2B1.1
Application Note 3; id. 2F1.1 Application Note 8. A 2F1.1 "estimate, for
example, may be based upon the approximate number of victims and an
estimate of the average loss to each victim...." Id. In keeping with this
philosophy, it is permissible for the sentencing court, in calculating a
defendant's offense level, to estimate the loss resulting from his offenses by
extrapolating the average amount of loss from known data and applying that
average to transactions where the exact amount of loss is unknown. Thus, in
United States v. Sutton, 13 F.3d 595, 596-97 (2d Cir.1994) (per curiam), where
the defendant had received payments of $80-$1,500, usually in the $750-$1,200
range, for fraudulently issued driver's licenses, we found it not unreasonable for
the sentencing court to compute the loss attributable to her scheme by
estimating a payment of $250 per license and multiplying that sum by the total
number of applications. See id. at 599-600.
We see no reason why the same methodology may not be used in a 7206(2)
case in which, as here, the defendant has been convicted of assisting in the
preparation of numerous fraudulent tax returns, and government records show
many more such instances. Although extrapolation might not be reasonable if,
for example, there were few instances of fraud, or if the returns audited
constituted a minuscule percentage of the total that the defendant prepared or in
whose preparation he assisted, we see no unreasonableness here. The evidence