Case Information
*1 Before P OSNER S YKES and H AMILTON Circuit Judges . P OSNER Circuit Judge
. A commodity pool invest ment fund made up contributions by number differ ent investors. contributions are commingled used commodity pool operator buy sell futures con tracts. Because commodity pools are common vehicles fraud, including Ponzi schemes, Sentencing Commission ordained fraud committed commodity pool operator. U.S.S.G. *2 § 2B1.1(b)(18)(B)(iii). Brant Rushton, who operated com modity pool he used vehicle for Ponzi scheme, pleaded guilty to one count each of mail fraud and money laundering. U.S.C. §§ 1956(a)(1)(B)(i). The statutory maximum prison for each of these crimes years. The probation service calculated Rushton’s guidelines sentencing range adding to base offense level for mail fraud enhancement for commodity pool op erator fraud and for abuse of posi tion of trust. U.S.S.G. 3B1.3. Other adjustments brought presentence report to and guidelines sentencing range to months. Neither side objected presentence report at sentencing hearing. Rushton’s lawyer did argue enhancements operating commodity pool and of overlap and fore including both calculating overestimated appropriate his client. he appealing judge’s discretion rather than challenging probation service’s calculation of range.
The sentenced Rushton months prison ordered him make restitution victims $1.62 mil lion. appeal challenges just prison sentence. indignant victims had, judge’s words hearing, “include[d] your parents [defrauded $116,000], relatives [including uncle defrauded $30,000 he intended care mentally disabled son—Rushton’s cousin], friends, senior citizens, disabled children.” As typical such schemes, much stole spent luxury items, including $150,000 horses alone. *3 judge dwelled particularly on plight of
Dunn, who “was years old when she invested [in Rush ‐ ton’s commodity pool]. If there’s one thing all know, [it’s that] main thing senior citizens worry about that they won’t enough live will have ask their children or others for help. And they’re generally too proud do that. Your [Rushton’s] actions made sure her concerns came true.” Despite judge’s strong lan ‐ guage about exploiting an elderly victim, did not seek, nor impose or mention, “vulnerable victim” enhancement authorized U.S.S.G. § 3A1.1(b)(1).
On appeal argues merely inap propriate add abuse trust enhancement top enhancement being commodity pool operator, argued district court, violat ed guidelines. now agrees, noting parties overlooked U.S.S.G. 2B1.1, Application Note 14(c), which bars abuse trust enhancement fraud enhancement being commodity pool operator applies. commentary explains commodity pool operators “are subject height ened fiduciary duties imposed securities law commod ities law” therefore “is required determine specifically whether abused position trust,” Application Note 14(c) “provides that, cases new, four enhancement [for com modity pool operator fraud] applies, existing two position … shall ap ply.” U.S.S.G. App. C, vol. II, p. (Amendment Nov. *4 4 13 ‐ 1343
While conceding the error in the calculation of the guide ‐ lines range, the government argues that it plain er ror, must appellant to prevail, he didn’t argue district that was an error. E.g., United States v. Garrett , 525, 527 2008). (Re call that objecting overlap was merely ap pealing judge’s exercise of discretion, con ferred judges by U.S.C. 3553(a), lists factors that judge must consider deciding, after calculating defendant’s guidelines range, what give.) A plain error an error only indisputable but also prejudicial—that is, had adverse effect party complaining it. United States v. Marcus U.S. (2010); Johnson U.S. 466–69 (1997); Olano U.S. (1993); Paladino argues error plain— reasons have changed during course this appeal.
In its appeal brief argued any error adding ‐ abuse enhancement offset judge’s failure include vulnerable victim enhancement; judge been apprised omis sion he would surely (in light what he said about Dunn) have added—and would have been required guidelines add—a vulnerable victim enhancement cal culating defendant’s guidelines range. since vulnerable victim enhancement would identical mistakenly imposed trust, applicable exactly what calculated, albeit erroneously. Moreover, thought were many victims *5 13 1343 5 fraud—as well thought—he required to impose an additional 2 enhancement, on top 2 enhancement one victim. 3A1.1(b)(2). government withdrew its argument after making
it, in acknowledgment decisions ours forbid government to seek additional enhancements on remand from an unrelated appeal. United States v. Love , F.3d 832, n. 4 (7th Cir. United States v. Tel lo F.3d 785, 798–800 (7th Cir. v. Sut ton F.3d 781, (7th Cir.
Our court appears to alone refusing to allow government seek a enhancement had not been rejected original sentencing, v. Wyss 631, (7th 1998), merely not advocated, government trying take second bite from same apple. In other circuits allowed on appeal ask appellate court order authorize district add previously unmentioned if court remanding complete rather than limited resentencing, provid ed seeking punish defend ant temerity having challenged original sen tence appealing. (That is, provided government’s purpose seeking higher remand “vin dictive.” Alabama Smith, U.S. 798–99 (1989); War ing Delo, 1993).)
Illustrative cases other circuits are Matthews 2002) (en banc) (“as general matter, district errs sentencing, will remand resentencing open record—that is, *6 without limitation on the evidence that the district court consider”); Ynfante (D.C. 1996) (“the government relied on ‘the existing rec ‐ ord’ and did introduce any new evidence at the resen ‐ tencing. remand was occasioned by the govern ‐ ment’s failure to meet its burdens production and persua sion at the original sentencing, the district court’s le gal error construing the guidelines. At resentencing, the district court ʹ s task was to apply proper construction to record already before it”); Cornelius 1992) (“once has been vacated or finding related to sentencing has been reversed and remanded resentencing, district court hear any relevant evidence on that sue it could have heard at first hearing,” though course “the court must … adhere any limita tions imposed on its function at resentencing appel late court”); Sanchez Solis (2d 1989) (“in interests truth fair court able on remand take new mat ter into account behalf either Government [provided that] … both parties had an op portunity heard”).
Thus, according rule other circuits, when evidence justify an was before district court at original (namely evidence Dunn indeed victim), merely overlooked, could seek its correction remand though failed object district error. our rule—in defense note prevents holding reserve objection original sentencing, *7 need spring it the defendant and the should the defendant succeed in getting his original overturned. Fear such tactic might dissuade some de fendants from appealing sentence. this the case which reexamine our rule and rejecting eliminate conflict with the other circuits; for the challenged it.
Later still the told us, agreeing with point that we’d raised oral argument, that the had committed further error, corrected would make up for erroneous imposition en hancement for trust. Remember had pleaded guilty money laundering as well as fraud, presentence report ignored money launder ing plea calculating range. That error. The report calculated offense levels for both counts, fraud money laundering, selected higher two as basis for calculating defendant’s guide lines range. U.S.S.G. § 3D1.3(a), Application Note 2. higher level offense level money laundering count, fraud count. offense level money laundering violation
U.S.C. (as present case) levitates un derlying offense (the crime produced laundered) adding levels total offense offense. U.S.S.G. §§ 2S1.1(a)(1), (b)(2)(B); see, e.g., Hodge Anderson Cruzado Laureano (1st result offense 28—the same cal *8 culated erroneously adding level abuse of trust en hancement offense fraud. effect offsetting errors is shown detail following table: ranges been same abuse trust permissible. It permissible money laundering case—but only when abuse trust relates money laundering itself rather than underlying offense (the offense generated laundered). See U.S.S.G. § 2S1.1, Application Note 2(C); United States v. Keck , F.3d 799–801 Byors (2d Anderson It impermissible when, stated trust guideline, U.S.S.G. 3B1.3, “an abuse … included base or specific fense characteristic.” See, e.g., Cruzado Laureano supra 48. True, always often forbidden double count. E.g., *9 ‐ Vizcarra But passage we just quoted from abuse trust guideline shows double counting this was impermissi ‐ ble; ‐ level enhancement operating a commod ‐ ity pool fraud already took account trust, as ex ‐ plained guidelines commentary we quoted earli ‐ er.
Here government’s argument stops. As govern ‐ ment sees it, because would face same offense (28) remand, be no plain error—and resen tencing would be futile to boot because range would unchanged (not so, we’ll soon see). overlooks fact failure under money laundering guideline was judge’s only error. Given what he said about Dorris Dunn, he should added least ‐ vulnerable ‐ victim en hancement, raising defendant’s guidelines months. That would make month im posed below sentence, doubtless contrary what intended. insists Dunn was vul
nerable victim, her (the “Dorris Dunn Trust”) presumably trustee, unlike benefi ciary, old, infirm, afflicted with mental illness (Dunn has bipolar disorder), financially inexperienced, otherwise especially vulnerable Ponzi schemer. de fendant wrong. His mistake seem academic now disclaimed seeking victim (and any event barred doing our forfeiture rule) remand resentenc *10 ing. Not so; academic, because judge impose his own, as part resentencing pro ceeding, and should do so.
For there no basis doubting Dunn was vulnerable victim. The presentence report—to which, re member, made no objection—describes Dunn as having introduced her son, another victim Ponzi scheme, she might invest his commodity pool. In son’s words, quoted presentence report, Dunn was swayed “Brant’s way words have her him and abilities investing her life savings with him.” lost result scheme was her money; she was beneficial owner. loss was $190,000, and though we don’t know her overall financial situation—only $190,000 loss her en tire investment commodity pool—it left her feeling “betrayed.” She vulnerable victim Ponzi scheme. United States v. Goldberg F.3d 891, 2005); Sims Cir. Pol Flores (1st Hawes (3d judge also have considered whether were other victims, maybe enough others (recall refer ence defrauded uncle, senior citizens, and disabled children) require further enhancement.
So what have thoroughly botched sentencing parties, probation service, are all implicated. We can’t blame any them too harshly, are absurdly complex. botched was, remedy speculation about what done *11 11 he calculated range accurately; it is a resen tencing from scratch, see United States v. Tovar Pina 1147–48 Langford 216–19 (3d Lozano 2008), beginning with a revision probation service presentence report. alternative ordering resentencing would be pronounce errors not plain they were offsetting: for was wrong, was judge’s failure sentence under laundering guideline. But ignores judge’s failure impose a further enhancement, or enhancements, presence a vulnerable victim, or vulnerable victims. That another error. Properly computed, have either months, even (sentencing range months) if were, as there well been, many victims, not just Dunn.
It argued since asking a longer sentence than gave, should let stand though based miscalculation sen tencing range. while precluded our forfeiture rule from arguing this court vulnera ble victim enhancement, defendant who appeals sentence takes risk case remanded resen tencing, as urges done, he will receive longer sentence appeals notice error favor committed proceeding appealed. As long higher re mand vindictive, its exceeding defendant’s original does invalidate it. See, e.g., *12 Warda , F.3d 573, 580–81 (7th Goldberg supra at 894; Johnson 181–82 Garcia Guizar 487–90, 2000) (“Garcia ʹ s higher sentence resulted solely district court ʹ s correction an error in Garcia ʹ s first presentence report, an error dis trict obligated correct,” id .
We cannot predict what sentence district judge will impose remand; it is unlikely be shorter uncertain whether it will longer. correct guidelines range is a range, point. There thus is discretion even when judge imposes sentence within range. calculation defendant’s guidelines range merely first step sentencing, though an essen tial step it what psychologists call “anchor ing” effect. calculation complicated, mandatory, done first; thus likely exert wholly conscious tug when, after having determined guidelines range, deciding what sentence give, guided factors U.S.C. 3553(a). See, e.g., Stephanos Bibas, “Plea Bargaining Outside Shadow Trial,” Harv. L. Rev. (2004); Birte Englich & Thomas Mussweiler, “Sentencing Under Uncertainty: Anchoring Ef fects Courtroom,” J. Applied Soc. Psychol . (2001). A mistake—in this case cascade mistakes—in cal culating range affect correct calculation would result same range. not.
Having calculated correctly, must then decide, matter discretion, whether within it; decision influenced factors *13 ‐ determined range, since he is free reject those fac tors. may believe, example, money laundering more serious offense than fraud, he might at low end new guide lines (for his disagreement with weight guidelines give particular conduct does alter range, though influence his exercise his discre tion) despite level laun dering count which pleaded guilty. In event might decide reimpose original sen tence, just month short bottom cor rect guideline. Alternatively might decide since total offense at least (because there vulnerable victim enhancement, maybe double such enhancement), previous sentence— below correctly calculated least 30—was too lenient. finally unresolved question whether there were enough additional victims warrant additional enhancement.
R EVERSED AND R EMANDED .