twice), and that Subsection (a)(2), not (a)(3), governed all vote
fraud schemes that entailed the casting of several corrupt ballots:
We agree with the district court that the appropriate
base offense level was 12, as provided in Section
2H2.1(a)(2). The language of (a)(2) applies in any
case in which a forgery, fraud, theft, bribery, deceit
or other means are used to effect the vote of
another person, or the vote another person was
entitled to cast. By contrast, the language of (a)(3)
addresses an individual who acts unlawfully only
with respect to his own vote, or votes more than
once in his own name. The offenses for which
Smith and Tyree were convicted involved the votes
of other individuals, in particular, the forging of
other voters’ names on applications for absentee
ballot and affidavits of absentee voters. The
district court did not err in applying a base offense
level of 12.
Smith, 231 F.3d at 817–18.
In summary, certain factors that are often involved in
election frauds will increase recommended sentences under the
sentencing guidelines:
• A defendant who occupies a leadership or supervisory
role in an election fraud scheme may receive an
additional two to four levels under Section 3B1.1.
• A defendant who abuses a position of public or private
trust (such as a public official who uses his or her
office to facilitate election fraud, or a private individual
who fraudulently marks and submits ballots entrusted
to him or her by voters) will receive two additional
178
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