Case Information
*1 Before P OSNER K ANNE R OVNER , Circuit Judges . R OVNER Circuit Judge
. second appeal before court, Donella asks us reverse court’s judgment claiming lower errantly calculated attributable conduct. Because issue, decline consider matter affirm, doing so revisit factors distinguish restitution.
I. Donella Locke co conspirator engaged real estate fraud involved, among other things, use of false documents, false social security numbers, payments fictitious vendors contractors, inflating income on documents banks. The more specific details of fraud are outlined appeal of case (7th indictment originally charged with fifteen counts illegal conduct, trial pre ‐ sented evidence only five. Upon Locke’s motion dismiss close government’s case, govern ment conceded failed present any ten counts, granted motion accord ingly. presentence investigation report recommended a
sixteen point addition offense level computation offense involved than $1 million. Specifically, report calculated $2,360,914.51 based on all properties underlying all fifteen counts against Locke, including properties formed basis ten dismissed counts. objected, arguing sentence should be based solely convicted account less $1 million. Her written presentence report stated:
Donella objects reflected paragraph It Donella’s position should based five *3 3 ‐ 3743 counts conviction (9, 11, 12, and 14) (sic) counts upon which was acquitted. If calculated on five counts conviction only, loss amount would be well below $1,000,000 would result in an addi ‐ tional levels pursuant U.S.S.G. 2B1.1(b)(1)(I).
Supplemental Addendum Presentence Report p.24.
In response, probation office argued considered determining loss amount, but even if amount was based solely Locke’s convicted conduct, still exceed $1 million.
At January hearing, lawyer stated, “I am withdrawing objection [to amount], Your Honor. We have Government’s calculation that’s reflected pre sentence report.” (R. Tr. 1/27/10, p.3).
Based government’s representations exceeded $1 million, was less $2.5 million, found adjusted offense level under advisory Sentencing Guidelines corresponds recommended sentence months. The sentenced months each count, run concurrently, followed three years super vised release, ordered pay $2,360,916.51 resti counts conviction should have included Count Count other words, should have read (8,9,10,11, ‐ tution to thirteen entities. At initial sentencing hearing, district court’s calculation—the number calculated to determine sentence—and its restitution order—the defendant must repay to victims—were identical. appeal court, Locke argued that
sentence should vacated district court did make findings necessary using relevant increase sentence based number victims. (We ignore other issues relevant second appeal). We affirmed conviction, agreed district court lacked evidentiary support for using determine number victims remanded for re sentencing. Locke F.3d at 245–46. also objected restitution noted required a different analysis for deter
mining loss. Id. at n.7. specific findings district needed make a restitution determination are governed Mandatory Victim Restitution Act (MVRA), U.S.C. § 3663A. Locke, 247; see also Robers S. Ct. (2014). held court’s findings record were insufficient satisfy requirements MVRA, remanded recalculation addition recalculation number victims. Lock e,
Before re filed successful motion limine arguing present new re proceeding without violating constitutional principles due process, Sixth Amendment, double jeopardy. moved court bar the government from introducing any evidence regarding relevant conduct not already record at first sentencing. With motion granted, government not prove that Locke committed alleged relevant conduct preponderance evidence, as it had offered relevant trial or at first sentencing hearing. meant that district court recal ‐ culated advisory guidelines without two level enhancement for offenses involving ten victims.
At second sentencing, Locke admitted that she had withdrawn her objections amount loss nevertheless asserted that she had always disputed was responsible relevant and her amount should greater restitution amount calculated without regard conduct. (R.169, Tr. 11/18/11, p.11,16). The government contended issue was properly before district court withdrawn initial sentencing hearing and thus and an appeal. Id. 18–19. Further more, noted restitution are calculated differently, restitution numbers may change as property recovered sold. After re hearing, court sentenced months imprisonment, three years supervised release, ordered pay $340,789 restitution lenders. reduced recovered sales property, as explain further below. See U.S.C. § 3663A(b). appealed, arguing erred failed reduce incurred result
6 11 3743 convicted amounts victims received they sold real estate secured fraudulently obtained loans.
II. We begin addressing question waiver, all other arguments rise or fall on resolution question.
When a defendant intentionally relinquishes or abandons a known right, issue has waived cannot reviewed appeal, even plain error. United States v. Natale , 719 F.3d 719, 729–30 (7th Cir. 2013). On other hand, a defendant who errantly misses a viable objection an error has forfeited argument, but may ask an appellate review error if is plain. United States v. Kennedy , F.3d 968, 975 (7th Cir. 2013). That is, if clear or obvious seriously affects fairness, integrity, or public reputation judicial proceedings. United States v. Jones F.3d (7th Cir. But a defendant who affirmatively states “I do object” or “I withdraw my objection” has forfeited right, rather intentionally relinquished waived right cannot ask review. United States v. O ʹ Malley, F.3d (7th Cir. 2014); United States v. Kirklin (7th Cir. 2013) (“[c]ounsel ʹ s affirmative statement he objection proposed [jury] instruction constitutes waiver ability raise claim appeal.”). true even where defendant has initially raised then explicitly waived it. Knox (7th 2010) (noting defendant appellate review his challenge calculation where he initially raised then *7 7 3743 later withdrew it, as indicated in both his defense counsel ʹ s statements record); see also United States v. Kincaid F.3d 648, (7th Cir. 2009) (“[W]e have held defendant waived his right challenge sentencing calculation initially objecting calculation, but later withdrawing objection.”); United States v. Venturella, F.3d (7th Cir. 2009) (finding waiver where defendant filed objections presentence challenging loss calculations, but later withdrew these objections in revised sentencing memorandum reiter ‐ ated during sentencing agreed with figures resentence report addendum); United States v. Scanga (7th Cir. 2000) (finding waiver where defend ant first objected presentence report calculations but withdrew objection after calculations were revised presentence report addendum); Redding (7th 1996) (finding waiver where defendant objected calculations before accepted them during hearing). case Locke’s counsel have
clear he withdrawing objection thus he stated, “I am withdrawing objection [to amount], Your Honor. We have Government’s calcula tion that’s reflected presentence report.” (R. Tr. 1/27/10, p.3).
Indeed waiver clear, only from counsel’s explicit words, also court’s language sentencing. Given clear waiver issue, discussed only *8 8 11 3743 related number of victims and of loss:
First all, addressing [sic] paragraph [of presentence investigation report], offense involved or more victims, certainly guidelines and points if the—if does involve or more victims. So issue is whether conduct was charged and other counts that weren’t tried amounts relevant conduct.
And relevant conduct is—I think law in [sic] relevant conduct fairly clear adequately cited by Government. It causes Court find that that points extra correct, I will find correct.
(R. 1/27/10 at
And appealing that sentence court, still never raised relevant conduct. appellate brief, objected only court’s use relevant conduct increase number victims. See R. Brief Required Short Appendix Donella Later, stated, “There are points are added exceeded million dollars case, matter how you arrive million dollars, whether you arrive million dollars applying notion relevant or whether you don ʹ t. But I always interested money ʹ s lost money defendant intended be, makes—that makes sentence serious, makes sentence higher.” (R. Tr. 1/27/10, p.37). considering all, rather utilizing figure accepted defendant. ‐ 27. Specifically, after discussing general
requirements for relevant conduct, Locke argued, “Here, District Court used concept of ‘relevant conduct’ increase number of ‘victims’ for sentencing purposes, failed make ‘explicit’ findings support its reliance on ‘relevant conduct.’” Id. And after noting two point increase for number of victims sixteen point increase of loss—Locke went argue only against two ‐ point increase number of victims:
The District Court, however, made no explicit findings, nor explicitly adopted Report, it used ‘relevant conduct’ provision of Sentencing Guidelines find ‘victims’ those contained Counts. … District Court’s use of relevant conduct increased Ms. Locke’s offense level two points; giving Ms. a total offense level which carries sentencing range … If relevant conduct addition taken into account, Ms. Locke’s total offense level carries range months.
Id. 29–30. opening brief first appeal made mention relevant as related loss. It not, explicitly issue.
Although our decision appeal began its discussion with general discussion relevant conduct, clear we applied our findings regarding only number victims. Under heading “Offense Level Number Victims,” concluded, “Had additional victims *10 10 11 3743 been included offense level calculations, offense level have been 23.” Locke, 643 F.3d Because issue of of loss had been waived, court never addressed and this court had reason review it. And ʹ s silence on an issue raised on appeal means is available for consideration on remand. United States v. Barnes , F.3d 1000, 1006 (7th Cir. 2011). In short, of waived and outside scope remand. case takes on an unnecessarily complicated pallor by
co mingling concepts and restitution. this appeal, presents argument about restitu tion with same lexicon i.e. both for were based on relevant conduct—and then maintains never waived right object use relevant conduct. But argument misunder stands nature two related legally distinct concepts. Restitution is payment losses sustained victims crime. See U.S.C. § 3663A(a)(1). It limited actual losses caused specific conduct underlying offense. United States v. Orillo , F.3d (7th Cir. 2013). A calculation, used purposes on other hand, can also include defendant placed risk ( United States v. Swanson F.3d (7th Cir. 2005)) must based conviction criminal unlawful. Orillo Littrice (7th confusion case comes fact although any right ask appellate reconsider loss, remand, *11 11 11 3743 required reconsider restitution. And order calculate restitution, consider something akin “relevant conduct” making calcula tions about restitution under MVRA. 18 U.S.C. § 3663A. MVRA, however, does not speak of “relevant conduct,” term is not applicable evaluating restitution. United States v. Frith , 461 F.3d 914, 920 (7th Cir. 2006). Rather, MVRA requires, “in case of an offense involves as an element scheme, conspiracy, or pattern of criminal activity” restitution for “any person directly harmed defendant’s criminal course of scheme, conspiracy, pattern.” 18 U.S.C. § 3663A(a)(2); , 643 F.3d 247; U.S. v. Randle , F.3d 550, 556 (7th Cir.
Although “in course scheme” language MVRA is similar “relevant conduct” consideration Section 1B1.3 Sentencing Guidelines, we have empha sized they are not same, despite fact necessary findings may overlap some extent. U.S. v. Westerfield , F.3d 480, (7th Cir. 2013) (“Although ‘relevant conduct’ analysis for Sentencing Guidelines is analytically different analysis under MVRA, have recognized is similar can overlap.”); , F.3d n.7 (“We caution is not same analysis as “relevant conduct” determinations, ‘relevant conduct’ not within scope MVRA.”); United States v. Hussein F.3d n.2 (7th Cir. 2011) (“the does always correspond guidelines rules calculating each differ”); Frith (Relevant within scope MVRA); Caputo (7th 2008) (loss purpose § 2B1.1, does ‐ require more than an estimate. Restitution, by contrast, requires an exact figure).
Because same determination, it is entirely possible waive finding without waiving a finding restitution vice versa. See, e.g., Hussein at n.2 (defendant argued issue loss, waived argument restitution); Stoupis n.6 (1st 2008) (defendant waived restitution, amount).
Locke argues that government waived waiver introducing at “evidence conclusively showing that actual associated with Ms. Locke’s convicted far less than $1 million.” Locke’s Reply brief at 9. fact, however, what government did was submit regarding restitution, an issue that waived. As goes say reply brief, before re sentencing, government filed what called “Sentencing Memorandum Relating Restitution .” (emphasis ours) Reply Brief And memo ‐ randum sets forth specific restitution govern ment calculated each particular victim lender. Presenting arguments about cannot waive waiver argument. case illuminates how waiver doctrine preserves fairness integrity proceedings. At
sentencing, explicitly loss. And pointed out re knew time withdrew she was agreeing $2.3 million knew might include covered counts convic tion. (R. Tr. 1/27/10, pp. 6–8, 37); (R. Tr. 11/18/11, p. One could speculate about the tactical reasons doing so: the loans enumerated in the indictment totaled over $8 million. Perhaps locking in than $1 million less than $2.5 million was good hedge. As stated at re “I share things outside record as well as to why defense withdrew [the objection amount], that be entirely improper, so we’re asking Court not engage any that speculation as why defense withdrew.” (R. Tr. 11/18/11, p.19–20). And indeed cannot speculate as why withdrew objection at time. We can only conclude withdrew any fact exceeded $1 million less $2.5 million. And, fact, banks loaned out $1.8 million five convicted counts alone. Id. at p.29. claims she opportunity challenge court’s calcula tion original sentencing hearing upon now relies—that banks recouped—did exist until after original sentencing was free to preserve challenge to amount based fair market value collateral time sentencing. See e.g. Green F.3d 583–84; U.S. v. Lane F.3d 585–90 (7th Cir. 2003). Instead, she made tactical decision to withdraw any to amount. Had not withdrawn objection, court would have taken evidence regarding both amount placed risk, fair market value collateral in determining loss. By waiving objection, court had no reason to consider either matter evidence presented. Because has been waived, need not delve deeper into manner in Circuit credits does not credit recoupment against loss, good description can be found in U.S. v. Green 583–84 (7th Cir. 2011); see also U.S. Radziszewski, 486–87 (7th
Moreover, in response to motion in limine re agreed limit its consideration to evidence already contained record. meant present additional evidence relating fraudulent transactions constituting part same scheme defraud required under 2B1.1’s calcula tion loss. It would unfair allow defendant undo her waiver loss, allow any have used against her issue. cannot now ask only consider those pieces evidence—the recovered collateral—that work favor reduce loss.
Thus because the court could not accept new evidence, the government limited the number of victims in the five counts of conviction. A calculation, however, it is measured by the actual the victim, can change over time. Robers S. Ct. 1856. As the court noted Robers “a sentencing court must reduce the restitu tion amount by the amount of money the victim received selling collateral, the value of the collateral the victim received it.” Robers S.Ct. case, time of original most of houses subject fraud were foreclosure proceedings. At time of re many of houses had been sold reclaimed banks then resold, so had accurate numbers amount of money banks actually lost. hearing. correct. application notes Sentencing Guideline 2B1.1 state shall reduced follows: case involving collateral pledged otherwise provided defendant, victim has recovered time disposition collateral, or, if collateral has disposed time, fair market value collateral time sentencing. Application note 3(E)(ii) U.S.S.G. § 2B1.1.
Although it true application notes U.S.S.G. 2B1.1 instruct amounts also should offset collateral, of been waived. Had been waived, court have considered evidence about sale homes determine offset collateral, then unconvicted counts would also have fair game. cannot argue should have considered lower loss, consider surely have increased loss. That smacks wanting have one’s cake eat too. judgment AFFIRMED.