State v. Oxborrow

Kenneth Oxborrow (defendant) co-founded the Wheatland Investment Company. Oxborrow told investors that he would place their money into the stock market and promised a large return on their investments. Oxborrow began to pay off previous investors with money acquired from newer investors, establishing a sophisticated pyramid scheme. Oxborrow stole millions of dollars for his own use to purchase expensive cars and homes. As a result, over 500 investors lost all of their investments. In August 1984, Oxborrow was served with a cease-and-desist order, prohibiting him from selling unregistered securities, which he ignored. Realizing he would not be able to pay back the investors, Oxborrow’s attorney approached the prosecutor’s office to discuss the scheme and a plea. Later, Oxborrow pled guilty to first-degree theft and willful violation of a cease-and-desist order. The Sentencing Reform Act of 1981 (SRA) created presumptive sentencing ranges for felonies. Under the SRA, the presumptive sentence ranges for Oxborrow’s crimes were 0-90 days and 0-12 months, respectively, because he had no previous criminal history. The statutory maximum sentences were 10 years for each. The statute empowers the sentencing court to impose any sentence within the presumptive range that it considers appropriate and any sentence outside the range, also called an exceptional sentence, if it finds “compelling and substantial reasons” justifying such a sentence. The SRA provides a list of aggravating factors that may be considered by the court, including that the offense was a major economic offense involving: (1) multiple victims, (2) extraordinary monetary loss, (3) sophistication and planning, and (4) the defendant's use of a position of trust to manipulate victims. The prosecutor recommended that Oxborrow serve concurrent sentences of 10 and 5 years. Instead, Oxborrow was sentenced to consecutive 10 and 5-year terms, totaling 15 years. Oxborrow appealed his sentences, arguing that they were clearly excessive and that the court did not have authority under the SRA to impose consecutive, rather than concurrent, sentences.