Back in September, we wrote about how James Whalen presented an oral argument to the 5th Circuit Court of Appeals stating that the restitution was calculated incorrectly when his client was convicted and sentenced for committing mortgage fraud. Last Friday, the 5th Circuit agreed with Mr. Whalen that the district court was wrong in the way that they calculated restitution.

The case in question involved buying houses with mortgage loans that were based on appraisals that had been inflated.  Mr. Whalen’s client, along with two other defendants, were accused of keeping the difference between the mortgage amount and the negotiated purchase price – a practice that is illegal and constitutes fraud.

But when the defendants were convicted for the crime, the court subtracted the foreclosure proceeds from the amount of the mortgage to determine restitution. Mr. Whalen’s argument was that the court was wrong to have used the original loan amount to calculate restitution; instead, they should have used the actual secondary prices.

The court argued that the secondary prices weren’t available, but the 5th circuit judge agreed with Mr. Whalen, saying that this didn’t matter and the original loan prices should have had nothing to do with calculating restitution.

Because of this decision, they vacated the entire sentence of Mr. Whalen’s client, including jail time. Their argument for doing so was that the extent of the other punishments may have been at least partially based on the amount of restitution.

What Does Vacating the Sentence Mean?

So what does it mean when your sentence is vacated? If you are convicted of a crime and believe that the sentence given to you by the court is too severe or that you were represented by ineffective counsel, you can file a Motion to Vacate. In simplest terms, vacating a sentence means that it becomes null and void.

Want an example? Let’s say you are sentenced to 2 years in prison, a $5,000 fine, and required counseling for shoplifting. You believe that this sentence is based on incorrect information, so you fight the decision and win. That sentence is now gone. It doesn’t exist.

Does this mean that you won’t have punishment? No. What it means is that the facts of the case will have to be examined again and a new sentence given that is determined to be more fitting of the crime.

How Does Vacating a Sentence Help?

Simple. Typically, a sentence is vacated because the government made a mistake or overstepped its bounds and tried to punish someone too harshly. Having these punishments abolished and forcing the court to set new ones almost guarantees that they will be better for you.

Do you believe that your sentence or conviction was based on incorrect information? Give The Whalen Law Office a call. He knows how these kinds of cases work and what to look for. But don’t delay – there are strict time limits on filing a Motion to Vacate, and if you fail to get yours in on time, the conviction or sentence will stand.