UNITED STATES of America, Plaintiff-Appellee, v. Ralph Egmund Harald FRISCH, Defendant-Appellant.
No. 12-1004.
United States Court of Appeals, Eighth Circuit.
January 28, 2013
Submitted: Oct. 15, 2012.
For the reasons stated, I respectfully dissent.
Kevin S. Ueland, AUSA, Minneapolis, MN, appellee.
Before LOKEN, SMITH, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
Ralph Egmund Harald Frisch pleaded guilty to one count of concealment from the Social Security Administration (SSA), in violation of
I. Background
In 2002, Frisch filed a claim seеking disability benefits with the SSA. The SSA ultimately found Frisch to be disabled and began paying disability benefits to him. Frisch also made a workers’ compensation claim against Jennie-O Turkey, his former employer. In 2004, Jennie-O Turkey hired a private company to investigate and conduct surveillance of Frisch. Over the course of several days, investigators observed and videotaped Frisch performing roofing work, climbing up and down a ladder, and working with an electric saw. In 2008, the SSA Office of the Inspector General learned оf the video surveillance and began investigating Frisch. An SSA investigator interviewed Frisch, and he admitted to working at jobs requiring manual labor, including snow shoveling, painting, and roofing. Thereаfter, the SSA terminated Frisch‘s disability benefits. Frisch was 63 years old. In total, Frisch received $86,160 in Social Security disability benefits to which he was not entitled. In 2011, the government indicted Frisch for his сonduct. Frisch pleaded guilty to one count of concealment from the SSA, in violation of
Because the statutory maximum penalty for a violation of
As to the amount of loss, the government noted the absence of any indication thаt Frisch would have voluntarily disclaimed the disability benefits if his fraud had gone undetected and asked the court to find that the loss amount is the intended loss. The government requested а mid-range sentence of 36 months’ imprisonment. Frisch objected to the intended loss calculation and requested that the court sentence him to 27 months’ imprisonment to run concurrent to his 78-month state sentence for selling methamphetamine.
At sentencing, the district court found a factual basis to support using the intended-loss calculation. Consistent with the PSR, it calculated a Guidelines range of 33 to 41 months’ imprisonment. The district court also noted that if it had found the loss amount was limited to the actual loss, then the Guidеlines range would be 30 to 37 months’ imprisonment. It explained that “[i]rrespective of where I begin, ... I believe I am going to end up with the same sentence before we are done this afternoon.”
In sentencing Frisch, the district court noted that Frisch was of a relatively advanced age, had health problems, and had previously served prison time. The court also considered the need to promote respect for the law, the need to deter Frisch from committing future crimes, and the need to detеr others from committing similar crimes. And, the court considered that Frisch “ha[s] been in custody doing two-thirds of the 78-month sentence.” The court concluded that “anything less than a 25-month consecutive sentence w[ould] not promote respect for the law and would not be just punishment and would not be consistent with similarly-situated individuals.” In sentencing Frisch to 25 months’ imprisonment to run consecutive to his state sentence, the court stated that it had “taken into account ... [Frisch‘s] age, [his] health, and the fact that [he] had been in prisоn for a time.”
Frisch appeals his sentence, asserting procedural error and substantive unreasonableness.
II. Discussion
In reviewing Frisch‘s sentence, first we “ensure that the district court committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If there is no procedural error, “then [we] consider the substantive reasonableness of the sentence imрosed under an abuse-of-discretion standard.” Id. “In determining whether a procedural error has been committed, we review the district court‘s factual findings for clear error, and its interpretation and application of the [G]uidelines, de novo.” United States v. Robinson, 639 F.3d 489, 495 (8th Cir.2011) (quotations and citations omitted).
A. Procedure
Frisch claims that he relinquished the intent to defraud the SSA in 2008 when an SSA investigator interviewed him. He clаims that he demonstrated his relin-
“A district court‘s determination of loss need not be precise, although it must reflect a reasonable estimate of the loss.” United States v. Jenkins, 578 F.3d 745, 749 (8th Cir.2009) (quotation and citation omitted). “The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. For this reason, the court‘s loss determination is entitled to appropriate deference.”
Here, the district court accepted the government‘s reasoning thаt Frisch would have continued receiving benefits to which he was not legally entitled until the retirement age of 66 if he had not been caught. When calculating intended loss, the аppropriate inquiry is what the loss would have been if the defendant had not been caught. See United States v. Henderson, 416 F.3d 686, 695 (8th Cir. 2005). (“Because the jury found that [the defendant] intended to continue reсeiving SSDI, when it actually ended is irrelevant to calculating the intended loss.“); United States v. Rettenberger, 344 F.3d 702, 708 (7th Cir.2003) (“[The defendant] set out to take the insurers for all they were worth, and that meant benefits through age 65. What would have induced him to disclaim benefits earlier?“). Frisch‘s intent to stop defrauding the SSA after its investigators confronted him about it does not impact the intended loss cаlculation because the intent to cease did not arise until the authorities interdicted the offense. Nothing beyond Frisch‘s statements indicate that he would have ceased accepting payments before his meeting with SSA officials, and the district court could reasonably conclude that he intended to continue doing so. Thus, the distriсt court did not procedurally err in accepting the government‘s intended loss calculation.
B. Substantive Reasonableness
Frisch argues that his sentence is substantively unreasonable because it is greater than necessary to accomplish the goals of sentencing and it fails to give proper weight to his admission of wrongdoing and his attempt at making restitution. Frisch claims that he had repaid almost $8,000 at the time of his sentencing hearing. Furthermore, he argues that he does not need to be deterred from committing future crimes because his health problems will prevent him from being a danger to the public, and, in any case, he will be legitimately collecting social security retirement benefits by the time he is released from prison.
“[W]here a district court has sentenced a defendant below the advisory [G]uidelines range, ‘it is nearly inconceivable that the court abused its discretion in not varying downward still further.‘” United States v. Moore, 581 F.3d 681, 684 (8th Cir.2009) (quoting United States v. Lazarski, 560 F.3d 731, 733 (8th Cir.2009)). Here, the record clearly shows that the district court considered the mitigating factors Frisch cited. The court explicitly noted Frisch‘s age, his health problems, and his restitution payments. The court sentenced Frisch to 25 months’ imprisonment to run consecutive to his state sentence. This sentence was wеll below the advisory Guidelines range of 33 to 41
III. Conclusion
Because we conclude that the district court did not procedurally err or abuse its discretion in sentencing Frisch to 25 months’ imprisonment, we affirm.