United States v. Oliver
2017 U.S. App. LEXIS 20255
| 7th Cir. | 2017Background
- Oliver, sole managing member of Electus, ran a fraud (2009–2012) soliciting retirement investors via co‑defendant Smith; investors were told funds were invested safely and withdrawable but were diverted.
- Oliver used investor funds for personal expenses, commissions, payments to other Electus investors, and investments in CFF (a Ponzi scheme run by Watson); total investor loss = $983,654.
- Oliver pleaded guilty to one count of wire fraud; PSR set total offense level 24 (loss, multiple victims, abuse of trust, two‑level leadership enhancement), criminal history I; Guidelines range 51–63 months; restitution $983,654.
- At sentencing the court adopted the PSR, heard victim impact, noted related prosecutions (Watson received 12 years and $37M restitution), and imposed 51 months imprisonment + 3 years supervised release (both within Guidelines).
- On appeal Oliver challenged: (1) failure to consider unwarranted disparities (comparing Watson), (2) reliance on inaccurate facts, (3) failure to calculate supervised‑release Guidelines on the record, and (4) application of a two‑level leadership enhancement. Court affirmed except for a modification of the restitution order to prevent recovery exceeding each victim’s loss.
Issues
| Issue | Oliver's Argument | Government's Argument | Held |
|---|---|---|---|
| Unwarranted sentencing disparity (§3553(a)(6)) | Sentence is disparate compared to Watson (12 years) and court failed to consider that disparity | A within‑Guidelines sentence reflects consideration of disparities; judge did consider related prosecutions | Affirmed — within‑Guidelines sentence satisfies §3553(a)(6); no further comment required |
| Reliance on inaccurate facts at sentencing | Judge relied on (1) statement that Oliver "took years off" victims' lives and (2) belief Oliver was solely responsible for restitution when Watson also contributed to losses | Judge's "years off" remark was figurative and not relied on; restitution order can be modified to prevent double recovery | Affirmed — no procedural error; court will modify restitution to cap recovery at actual loss |
| Failure to calculate supervised‑release Guidelines on record | District court did not separately recite supervised‑release Guidelines or repeat §3553(a) analysis for supervised release | Court adopted PSR, imposed within‑Guidelines supervised release, and provided overarching §3553(a) rationale; separate recitation not required | Affirmed — no plain error where PSR adopted and explanation covered both prison and supervised release |
| Two‑level leadership enhancement (U.S.S.G. §3B1.1(c)) | Enhancement inappropriate; Oliver contends he did not recruit/control Smith | PSR and plea reflect Oliver as sole managing member who recruited/directed Smith and controlled funds/commissions | Affirmed — facts support leadership enhancement (creator, channeled funds, recruited/directed Smith, paid referral fee) |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (district court must consider Guidelines and §3553(a) factors)
- United States v. Blagojevich, 854 F.3d 918 (7th Cir.) (within‑Guidelines sentences reflect consideration of disparity concerns)
- United States v. Anderson, 604 F.3d 997 (7th Cir. 2010) (waiver principles construed liberally for defendants; reciting Guidelines for supervised release not always required)
- United States v. Downs, 784 F.3d 1180 (7th Cir. 2015) (district court must calculate supervised‑release Guidelines and assess appropriateness before imposing an above‑or‑outside range term)
- United States v. Weaver, 716 F.3d 439 (7th Cir. 2013) (factors for applying §3B1.1 leadership enhancement)
- United States v. Figueroa, 682 F.3d 694 (7th Cir. 2012) (supervisor/manager defined as one who tells others what to do and checks performance)
- United States v. Trigg, 119 F.3d 493 (7th Cir. 1997) (restitution may not exceed the victim’s actual loss)