UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARL MOOSE, Defendant-Appellant.
No. 16-3536
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 14, 2017 — DECIDED JUNE 27, 2018
WOOD, Chief Judge, and RIPPLE and HAMILTON, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15-CR-175-1 — Charles R. Norgle, Judge.
WOOD, Chief Judge, and RIPPLE and HAMILTON, Circuit Judges.
I. Loss Amount
We review de novo the district court‘s legal interpretations of the Sentencing Guidelines, but we review factual findings as to loss amount for clear error. United States v. White, 883 F.3d 983, 986 (7th Cir. 2018). The district court found under U.S.S.G. § 2B1.1(b) (2015) that the applicable loss amount for Moose‘s offense was about $480,000, which added 12 offense levels to his guideline calculation. Moose argues the correct amount was only about $70,000.
In early 2007, Moose began soliciting investors with a stock tip: a company called California Energy & Power (CEP) was developing vertical-axis wind turbines. He advised investors to act before an investment window closed and CEP began paying its first dividends. Rather than broker sales of CEP stock to the investors, though, Moose formed his own company, Infiniti Wind Technology, to serve as the investment vehicle for purchasing CEP stock. He persuaded his investors to buy shares of Infiniti, which he controlled, by saying that Infiniti would in turn buy shares of CEP.
Moose told investors that he planned to raise $250,000 through Infiniti to purchase four percent of CEP. He said that ownership of Infiniti would be divided into 20 units distributed to individuals based on their investments in that company. He did not tell the investors that he would reserve for himself a portion of the invested funds as either a finder‘s fee or management fees for Infiniti. In July 2008, Moose surpassed his goal of raising $250,000. Based on his representations to his original investors, Moore should have stopped raising money under the Infiniti name at that point and invested Infiniti‘s cash in CEP stock.
Moose broke the promises he made to investors in three ways. He continued to raise money from investors in exchange
Moose eventually pleaded guilty to one count of wire fraud in violation of
The Sentencing Guidelines for fraud and similar crimes give substantial weight to the relevant loss amount. See U.S.S.G. § 2B1.1. The relevant amount is the greater of the actual loss or the intended loss. Id., cmt. 3(A). Actual loss is “the reasonably foreseeable pecuniary harm that resulted from the offense,” and intended loss is the “pecuniary harm that the defendant purposely sought to inflict.” Id.
Since Moose invested only $200,000 as promised of the $680,000 he persuaded investors to entrust to him and pocketed the other $480,000, the district court‘s loss finding of $480,000 is easy to understand. Moose argues, however, that he should have benefited from a guideline feature that calls for a measure of leniency on the loss calculation, at least in limited circumstances. If a defendant returned money or property to a victim before an offense was detected, the value of the returned money or property is deducted from the loss amount. Id., cmt. 3(E)(i). The time of detection is the earlier of either the time of actual discovery or the time when the “defendant knew or reasonably should have known that the offense was detected or about to be detected by a victim or government agency.” Id.
Though Moose admits that he pocketed the $480,000, he argues for a loss figure of just $70,000. To reach that amount, Moose begins with the $680,000 that his victims gave him to invest in CEP. He points out that he initially invested $200,000 of that money before fraud was detected. So far, so good. Moose then muddies the water with internally inconsistent arguments. To qualify for the discount based on returning stolen property before the crime was detected, he contends that he returned this property before the fraud detection in July 2011. His theory is that the investors always had ultimate control over Infiniti through their ownership shares, despite his day-to-day stewardship. Moose reasons, then, that he “returned” the investors’ property on the days he purchased the CEP stock in 2007 and 2008. But if that were correct, the property had, at the time of the supposed return, a value of only $200,000, which would not help him avoid the loss amount of $480,000. To maximize the value of that property return, Moose also argues the date he should be deemed to have returned the property to investors should be in July 2011, since that was when he turned over day-to-day control of Infiniti. He argues that at that time the shares of CEP stock were worth about $610,000.
This theory is full of flaws. We first note the very shaky factual support for that $610,000 valuation. As support for that number, Moose points to CEP‘s stock transfer ledger, which shows that the company
More fundamental, though, Moose‘s argument depends on internal contradictions. If Moose should be deemed to have returned the property to the investors on the dates he had Infiniti buy the CEP stock, then the relevant value on those dates would be exactly what Infiniti paid for the stock: $200,000. Moose would not be entitled to the increase in the property‘s value after he supposedly returned it. But if Moose should be deemed to have returned the property to the investors only when he gave up management control of Infiniti in July 2011, then he receives no guideline credit for returning the property because the investors had already discovered the fraud at that time. The law does not need to accommodate this creative argument. Under either branch of these inconsistent positions, the loss amount would be $480,000, not Moose‘s $70,000 figure.
An even more fundamental and simpler attack on Moose‘s now-you-see-it, now-you-don‘t argument focuses on its complete failure to account for the missing $480,000, which is the central concern of the loss amount here. The government‘s evidence showed that Moose collected $680,000. He invested $200,000 and embezzled the other $480,000. This should not be a complicated problem. Moose is not entitled to set off the gains on the legitimate investments against the money he embezzled. Many embezzlers intend to pay back the money they have stolen. How often have courts heard explanations like, “I just needed a loan to tide me over, and I was going to pay it all back after ...” perhaps a visit to the horse races or the casino? We explained in United States v. Lauer, 148 F.3d 766, 768 (7th Cir. 1998): “He is nevertheless an embezzler to the full extent of the amount he took, no matter how golden his intentions or happy the consequences.”
We added in Lauer that “the amount of the intended loss, for purposes of sentencing, is the amount that the defendant placed at risk by misappropriating money or other property.” Id. The district court did not err by giving Moose credit for the $200,000 that he actually used to invest in CEP. The court did not have to treat that money as misappropriated. We assume Moose did with that money what he said he would do with it, and the government does not contend that CEP was a Ponzi or pyramid scheme or other complicated financial fraud. Thus, the properly invested $200,000 was at risk of loss due to ordinary investment risk; it was not at risk due to fraud. In this fraud, Moose simply pocketed the rest of the money—the other $480,000. Even if Moose intended that legitimate growth in the value of CEP stock would cover his theft, that intention would
II. Reasonable Prison Sentence
After calculating the guideline recommendations correctly, the district court imposed a prison sentence of 24 months, well below the 41 to 51 month guideline range. On appeal, Moose also argues that the Sentencing Guidelines give unreasonable weight to the loss calculation. This is an odd case for such a challenge, given that Moose received a sentence well below the guideline range, but we are not persuaded in any event.
We review the reasonableness of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). A sentencing court must impose terms that are “sufficient, but not greater than necessary, to comply with” statutory sentencing goals: the need to “reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;” “to afford adequate deterrence to criminal conduct;” “to protect the public from further crimes of the defendant;” and “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”
Balancing these often-conflicting goals is a difficult task, and one that federal judges widely recognize as their most difficult responsibility. The Sentencing Commission is charged with providing guidance in this area because of its institutional capacity to “base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.” Kimbrough v. United States, 552 U.S. 85, 109 (2007), quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring). Despite the Commission‘s expertise, sentencing judges must exercise their discretion and must recognize that they may vary from the guideline recommendations based on the district court‘s “superior position to find facts and judge their import under § 3553(a).” Gall, 552 U.S. at 51, quotation omitted. In fact, district judges are not permitted to presume the guideline recommendation is reasonable. Rita v. United States, 551 U.S. 338, 351 (2007).
Moose asks us to declare his sentence unreasonable on the theory that the guideline enhancements for fraud loss amounts are inherently unreasonable. He claims that the graduated enhancements for rising loss amounts in § 2B1.1 are “not based on empirical data or on national experience.” For support, he cites articles finding a lack of evidence that prison has a greater deterrent effect on white-collar crime than does probation. He also notes the escalation of recommended punishments by the Sentencing Commission in the fraud loss table since the guidelines first took effect in 1987. Based on his premise that the loss provisions of the fraud guideline are not based on the Commission‘s institutional strengths, he cautions that district judges should be extra skeptical of their recommendations in white-collar frauds like his.
Taken purely as theory, divorced from the facts of this case, this argument fails for two reasons. First, Moose focuses on only the deterrent effects of these enhancements. He overlooks the retributive purposes of sentencing. The first factor in
Second, Moose‘s argument that the loss enhancements are not based on the Commission‘s institutional expertise is mistaken. Even if the enhancements may lack robust empirical support related to deterrence, they have foundations in empirical data and national experience related to the goals of fair sentencing and retribution. Justice Breyer, who was a member of the original Commission before he joined the Supreme Court, has explained that “to avoid unfair anomalies” among thousands of examined cases, the Commission “increase[d] certain ‘white collar’ sentences when necessary to avoid disparity between ‘white collar’ and ‘blue collar’ crime.” Justice Stephen Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sentencing Reporter 180, 181 (1999). That data might not reflect the deterrent effects of harsher sentences, but it does reflect the Commission‘s policy judgment that increasing sentences for white-collar crimes would promote greater respect for the rule of law.
Moose has cited scholarly work that has focused on deterrence, but again, deterrence is not the only goal. See Francis T. Cullen et al., Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, 91 Prison J. 48S (2011); David Weisburd et al., Specific Deterrence in a Sample of Offenders Convicted of White-Collar Crimes, 33 Criminology 587 (1995). To the extent Moose‘s sources address the
We do not mean to suggest that the loss enhancements of the fraud guideline are beyond debate. Colleagues on other courts have expressed strong reservations about the effects of the guideline in particular cases, and Moose cites United States v. Algahaim, 842 F.3d 796 (2d Cir. 2016) (“remand is appropriate to permit the sentencing judge to consider whether the significant effect of the loss enhancement, in relation to the low base offense level, should result in a non-Guidelines sentence“), and United States v. Adelson, 441 F. Supp. 2d 506, 512 (S.D.N.Y. 2006) (finding application of the loss amount guideline combined with other guidelines in securities fraud showed “travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic“).
Moose‘s case does not present any comparable arguments for greater leniency. He was apparently the sole perpetrator of his fraud. He did not simply cover up the bad acts of others. He just put in his pocket $480,000 that he obtained under false pretenses. On these facts, we cannot say that the guideline loss enhancements were applied unreasonably here. As we have made clear, district judges are as free to disagree with the policy behind the loss amount enhancement as they are with any other guideline. See United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010) (en banc). But we have also made clear that sentencing judges may choose to follow them and need not address explicitly all arguments questioning the reasonableness of the Sentencing Guidelines. E.g., United States v. Rosales, 813 F.3d 634, 637–38 (7th Cir. 2016).
In a related point, Moose also argues that the court‘s restitution order to repay $405,945 was clearly erroneous because the district court “simply impos[ed] the entire loss amount as restitution” and did not consider his financial situation and prospects under
III. Supervised Release
Finally, Moose challenges the duration and conditions of his supervised release. We review the district court‘s imposition of the supervised release term and its conditions for abuse of discretion. United States v. Shannon, 851 F.3d 740, 743 (7th Cir. 2017). When district courts impose supervised release terms, they must consider the sentencing factors in
One overarching explanation often will provide an adequate explanation for the duration of supervised release. Supervised release serves many of the same penal functions as a prison term, so the same rationale for a prison term will often serve equally as well to adequately explain the duration of supervised release. Id. at 871. This is particularly so where the sentencing judge imposes a prison term below the guideline range. In those circumstances, the supervised release may be seen as a form of lenity, where the sentencing judge has decided to trade off a portion of the recommended prison sentence for a longer period of supervised release.
Here, the judge provided one justification, and by its terms that rationale applied only to the prison term. The judge said that “if a fair, but substantial sentence[] is not imposed, it would tend to deprecate the seriousness of what you have done. It would not serve as a deterrent to you. And a sentence too light would not serve as a deterrent to others. So it is the judgment of the Court that you serve 24 months, two years, in the Bureau of Prisons.” The judge considered mitigating factors and declared again “the judgment of the Court here that 24 months is just enough.”
This rationale applies equally well, however, to the determination that the term of supervised release would be “just enough” when combined with the prison sentence. Moose‘s combined prison term and supervised release term still add up to only about the middle of the recommended guideline range for prison alone. We do not think that a reasonable defendant would walk away from this sentencing hearing wondering about the reason for the length of the supervised release term. The judge‘s overarching rationale for the below-guideline prison sentence explained that duration sufficiently.
The judge then pivoted to the conditions of supervised release. Here the judge erred by failing to explain his reasons for imposing a few terms of supervised release to which Moose objected. We have said repeatedly that sentencing judges “need not belabor the obvious” when confronted with an objection where “anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.” United States v. Kappes, 782 F.3d 828, 856 (7th Cir. 2015), quoting United States v. Gary, 613 F.3d 706, 709 (7th Cir. 2010); see also, e.g., United States v. Sainz, 827 F.3d 602, 608 (7th Cir. 2016); United States v. Lyons, 733 F.3d 777, 785 (7th Cir. 2013). So requiring drug testing for drug offenders or restricting contact with children for offenders who preyed on children does not impose a burden of explanation on sentencing courts. But where the reasons for conditions are less obvious, sentencing judges must address directly objections raised by defendants. Explanations need not be longwinded, but the judge must offer some explanation for appellate review, as deferential as that review may be. See United States v. Castaldi, 743 F.3d 589, 595 (7th Cir. 2014).
At sentencing in this case, Moose objected to the restitution order, the drug testing requirement, and the requirement that he permit a probation officer to visit him at work Specifically, Moose‘s attorney
The government contends that the district court‘s explanation for the prison term provides an “overarching explanation and justification” sufficient to support both the prison term and the supervised release term. Bloch, 825 F.3d at 870. For support, the government draws on the district court‘s conclusory statements during its discussion of supervised release that given “the nature and circumstances of this case, the Court finds that they are appropriately ... imposed by the Court” and that the conditions for supervised release were “recommended by the probation officer” and considered “within the context of all of the information before the Court in the report, as well as submissions by defense counsel, and the nature of the allegation to which the defendant has entered his plea of guilty.”
In the face of the specific, rational objections by Moose, this conclusory statement was not adequate. It did not address the objections. Concerning restitution, Moose made the reasonable argument that interest on the amount should be waived while he was in prison “because if the interest is growing for two years while he‘s in prison and can‘t afford to pay restitution, then what is a difficult amount to pay becomes an impossible amount to pay.” The argument may be a bit overblown in drawing the line between difficult and impossible payments, especially since the judgment form is silent on the matter of interest accrual during his incarceration. Nevertheless, it is clear that accrued interest would create a greater burden on the defendant. This greater burden may well be justified, of course, but the district court needed to explain why it is justified.
Similarly, the court‘s rejection of Moose‘s objection to drug testing required some explanation. Moose claims he has no history of drug abuse, and submitting to drug testing periodically would be an undue nuisance if imposed without sound reason. Maybe, maybe not. Drug testing is a mandatory condition of supervised release, but the condition “may be ameliorated or suspended” in certain cases.
Finally, Moose takes issue with the condition permitting the probation officer to visit his workplace. Moose‘s main objection is that the visitation condition is overly broad and may cause him to lose his job if the officer visits him at work. Again, this concern was fairly stated, though its conclusion is debatable because we “fairly
We repeat what we have said before. Though a judge “need not give a speech about each condition, ... sentencing judges rarely, if ever, should list a multitude of conditions without discussion.” Kappes, 782 F.3d at 846. The needs for these challenged conditions were not so obvious here that explanation was unnecessary in overruling objections. The defendant, through his attorney, expressed reasonable concerns about several of the conditions imposed on him through supervised release. The sentencing judge rejected these arguments without explanation. In doing so, the sentencing judge failed to exercise properly his discretion in imposing a supervised release sentence. Because of this failure, we VACATE the challenged conditions of supervised release and REMAND for the limited purpose of addressing those conditions of supervised release. The 24-month prison sentence and 24-month supervised release terms, however, are AFFIRMED.