UNITED STATES of America, Plaintiff-Appellee, v. Timmothy WILLIAMS, Defendant-Appellant.
No. 13-1260.
United States Court of Appeals, Seventh Circuit.
Decided Feb. 7, 2014.
Submitted Jan. 23, 2014.
Nor did the district court abuse its discretion in denying the defеndants a damages hearing. The defendants argue that a hearing was necessary to permit them to question the author of the Apollo offer. They also complain about the offer being four years old. But what the defendants don‘t dispute—that the Apollo offer was genuine—is key. The Apollo offer was a reasonable way to value the company in the circumstances, and it was a definite figure. The defendants did not submit a damages expert or put forth an аlternative damages theory of their own, though they presumably possessed sufficient information to construct one. See BCS Servs., 637 F.3d at 759. The district court had figures in hand. In these circumstances it was no abuse of discretion to decline to hold a damages hearing. See Dundee, 722 F.2d at 1323 (noting that a damages hearing is unnecessary when “the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits“).
D. The denial of the defendants’ motion to stay
Lastly, the defendants claim that the district court‘s damages determination should have been stayed until the plaintiffs’ claims against the non-defaulting defendants were rеsolved. We disagree. Though we have in the past prohibited district courts from holding a damages hearing against a defaulting defendant when the same claim rеmains pending against non-defaulting defendants, this rule comes from concerns of judicial economy and inconsistent damage awards. In re Uranium Antitrust Litig., 617 F.2d 1248, 1262 (7th Cir.1980). There is no concern for inconsistent awards here. The plaintiffs have committed—both in open court and in their briefs—to dismiss all claims against the nondefaulting defendants if the judgment аgainst the Swiechs and Lewicki is affirmed. Accordingly, they will be judicially estopped from abandoning their firm commitment once we do so. See, e.g., Grochocinski v. Mayer Brown Rowe & Maw LLP, 719 F.3d 785, 795 (7th Cir.2013). This is not the case that Uranium Antitrust sought to avоid, and it was therefore no abuse of discretion for the district court to deny the defendants’ motion for a stay.
III. Conclusion
The district court was within its discretion to impose harsh sanctions, to grant a default judgment against the defendants, to calculate the damages as it did, and to decline to hold a damages hearing. We AFFIRM.
Jonathan E. Hawley, Federal Public Defender, Office of the Federal Public Dеfender, Peoria, IL, Elisabeth R. Pollock, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.
Before FLAUM, MANION, and KANNE, Circuit Judges.
PER CURIAM.
Timmothy Williams pleaded guilty to an indictment charging him with crimes related to identity theft, and the district court used the guidelines in effect at sentencing to calculate his imprisonment range. That range was higher thаn it would have been if calculated under the guidelines in effect when Williams committed his crimes, but this posed no constitutional problem under our circuit‘s preсedent at the time of sentencing. See United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006). While this case was on appeal, however, the Supreme Court held that applying the guidelines in effect аt sentencing violates the ex post facto clause if it raises the defendant‘s imprisonment range. See Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 2078, 186 L.Ed.2d 84 (2013).
The government agrees with Williams that, in light of Peugh, use of the guidelines in effect at the time of sеntencing resulted in plain error. Thus, the only issue here is the nature of the remedy: whether we should remand for resentencing, as Williams urges, or retain jurisdic-
Williams pleaded guilty to an 11-count indictment that charged him with misusing social security numbers,
Williams would not have received the upward adjustment for involving more than 10 victims if the district court had used the guidelines that were in place four years earlier when he committed his crimes. Under those guidelines, a “victim” means a person who has suffered monetary loss or physical harm,
Williams did not raise this issue at sentencing, so on appeal he argues that using the wrong rаnge is plain error that requires remanding for resentencing. No remand would be necessary if the district court had stated that the sentence would remain the sаme no matter the calculated range, because then the error would be harmless. See United States v. Burge, 683 F.3d 829, 834 (7th Cir.2012); United States v. Paladino, 401 F.3d 471, 483 (7th Cir.2005). But Chief Judge Simon did not say that he would have given the same sentence if the range had been lower. Nor does the record permit us to draw that conclusion. So some type of remand is needed.
The government opposes remanding for resentencing, contending that the judge might have imposed the same sentence anyway because he emphasized that Williams had inflicted serious non-monetary harm and imposed an above-range prison term. But acknowledging uncertainty about what the district court would have done, the government says that we should retain jurisdiction of this case and issue a limited remand. With this limited remand, the government explains, the judge can tell us whether he would hаve imposed a shorter sentence under a lower guidelines range.
We have used this approach for certain types of errors, but they are nоt present here. See, e.g., Paladino, 401 F.3d at 483-85; United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir.2008); United States v. Redmond, 667 F.3d 863, 876 (7th Cir.2012). Paladino, Taylor, and Redmond did not involve the incorrect calculation of the guidelines range; unlike this case, the district courts in those cases correctly applied the guidelines but were merely unaware of their discretion to deviate from them. This distinction is significant because the Supreme Court requirеs district courts to apply the guidelines correctly as a prerequisite to exercising their sentencing discretion. See Peugh, 133 S.Ct. at 2080; Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
The government notes two instances in which we retained jurisdiction and issued a limited remand despite finding plain error in the guidelines calculation. See United States v. Maxwell, 724 F.3d 724, 729 (7th Cir.2013); United States v. Billian, 600 F.3d 791, 795 (7th Cir.2010). But in neither instance did we set up the rule urged by the government that only this limited remand is proper when we find plain error in these circumstances. Our normal practice is to presume that the improperly calculated guidelines range influenced the choice of sentence unless the judge said otherwise at sentencing. See, e.g., Goodwin, 717 F.3d at 520-21; Burge, 683 F.3d at 834. We continue to follow that approach here and therefore will direct a remand for resentencing so the district court can sentence Williams based on the guidelines range of 30 to 37 months.
Accordingly, the sentence is VACATED, and the case is REMANDED for resentencing consistent with this opinion.