United States v. Omar Thomas Wala -Eastern District of Kentucky at London
Split Score
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Case Summary
Disposition
Affirmed
The Sixth Circuit affirmed Omar Thomas Wala’s 90-month sentence for a large-scale counterfeit-alprazolam conspiracy. The court upheld the $32-million loss calculation under U.S.S.G. § 2B1.1, the 10-or-more-victims (or mass-marketing) enhancement, and the § 2B1.1(b)(16)(A) enhancement for creating a conscious or reckless risk of death or serious bodily injury, rejecting Wala’s arguments about the proper Guidelines methodology and enhancements.
Circuit Split Identified
Legal Issue
Whether U.S.S.G. § 2B1.1(b)(16)(A) requires proof that the defendant was subjectively aware of the risk of death or serious bodily injury (subjective-awareness test) or whether it is enough that the risk would have been obvious to a reasonable person in the defendant’s position (objective-reasonableness test).
Circuit Positions
Objective reasonable-person standard suffices; government need not prove defendant’s subjective awareness.
Government must prove defendant actually knew of and consciously or recklessly disregarded the risk (subjective awareness required).
Position not definitively chosen; enhancement affirmed because record satisfies both objective and subjective standards.
Conflict Summary
The First, Second, Ninth, and Tenth Circuits hold that the enhancement applies whenever the offense objectively created a serious risk that would have been obvious to a reasonable person. The Seventh and Eighth Circuits require proof that each defendant actually knew of, and consciously or recklessly disregarded, that risk. The Sixth Circuit in this case declined to choose between the tests, concluding that the enhancement was proper under either approach.