United States v. Mary Bohlen , 562 F. App'x 520 ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 17, 2014
Decided April 18, 2014
Before
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-3224
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central District
of Illinois.
v.
No. 13-30005-001
MARY ANN BOHLEN,
Defendant-Appellant. Sue E. Myerscough,
Judge.
ORDER
For four years Mary Bohlen embezzled money from bank accounts she
controlled. She was treasurer of the Illinois Correctional Employees Memorial
Association fund, which assists families of Department of Corrections employees killed
or permanently injured in the line of duty. Bohlen recruited new members and solicited
donations while skimming more than $50,000 for herself. And in her regular
employment as assistant deputy director and supervisor of accounting at DOC, Bohlen
stole around $27,000 from several DOC funds. She pleaded guilty to two counts of mail
fraud, 18 U.S.C. § 1341, and two counts of theft from an organization that receives
federal funds, id. § 666(a)(1)(A). After calculating a guidelines imprisonment range of 21
No. 13-3224 Page 2
to 27 months, the district court sentenced Bohlen to 21 months and ordered her to pay
restitution.
Bohlen filed a notice of appeal, but her appointed lawyer asserts that the appeal
is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
Bohlen has not accepted our invitation to respond to counsel’s motion. See CIR. R. 51(b).
Counsel has submitted a brief that explains the nature of the case and addresses the
issues that a case of this kind might be expected to involve. Because the analysis in the
brief appears to be thorough, we limit our review to the subjects that counsel has
discussed. See United States v. Bey, No. 13-1163, 2014 WL 1389090, at *2 (7th Cir. Apr. 10,
2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel begins by noting that Bohlen has no interest in challenging her guilty
pleas. Thus counsel appropriately omits discussion about the adequacy of the plea
colloquy and the voluntariness of the pleas. See United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel first considers whether Bohlen could argue that the district court clearly
erred by assigning an 8-level upward adjustment based on a calculated loss of $77,889,
see U.S.S.G. § 2B1.1(b)(1)(E), and concludes that it would be frivolous for her to do so.
We agree. Bohlen objected to that calculation, arguing that the increase should be
limited to 6 levels because she used the money stolen from the DOC accounts to
“repay” about $27,000 of the funds taken from the memorial account before the
embezzlements were discovered. Id. § 2B1.1(b)(1)(D) & cmt. n.3(E)(i). Though she did
not contest the total loss amount, she argued that $27,000 should have been credited
against it. See id. § 2B1.1(b) cmt. n.3(E)(i). But courts need not deduct from the loss
amount money that the defendant spent facilitating a continuing fraud. See United States
v. Powell, 576 F.3d 482, 497 (7th Cir. 2009); United States v. Spano, 421 F.3d 599, 607 (7th
Cir. 2005); United States v. Mucciante, 21 F.3d 1228, 1238 (2d Cir. 1994) (concluding that
defendant was not entitled to credit since repayment was “meretricious effort” to
perpetuate scheme). Bohlen repaid the $27,000 with money she had stolen from the
inmate accounts in order to conceal her embezzlement from the memorial account and
enable her to keep stealing, which she did for three more years. The presentence report
noted as much and Bohlen did not object, and the district court adopted this factual
finding. The judge’s total calculation, then, was not “outside the realm of permissible
computations.” See United States v. Radziszewski, 474 F.3d 480, 486 (7th Cir. 2007)
(quotation marks and citation omitted).
No. 13-3224 Page 3
Counsel next considers whether Bohlen could argue that the district court abused
its discretion by imposing a special condition of supervised release that prohibited her
from frequenting places where gambling occurs. District courts have authority to
impose special conditions not explicitly mandated by statute, 18 U.S.C. § 3583(d), but
those conditions must reasonably relate to the nature and circumstances of the case, and
they must not infringe the defendant’s liberty more than reasonably necessary to deter,
and protect the public from, future crimes. See id. §§ 3553(a), 3583(c), (d); U.S.S.G.
§ 5D1.3(b); United States v. Silvious, 512 F.3d 364, 370–71 (7th Cir. 2008).
Preventing a defendant with a gambling problem from gambling or frequenting
places where gambling occurs is a permissible condition of supervised release, Silvious,
512 F.3d at 371, and on this record we agree with counsel’s conclusion that a challenge
to the gambling restriction on Bohlen would be frivolous. Bohlen admitted that she had
gambled with the embezzled funds and liked frequenting casinos. See United States v.
Brown, 136 F.3d 1176, 1186 (7th Cir. 1998). The court thus imposed the condition to
ensure that her income would go toward restitution and not gambling. And although
Bohlen argued that the restriction would limit her ability to find a waitressing job, the
district judge explained that many restaurants do not allow gambling.
Counsel finally evaluates whether Bohlen could argue that her concurrent prison
sentences are unreasonably long and rightly concludes that this potential claim would
be frivolous. Her lack of criminal history placed her in Category I, which, combined
with her total offense level of 16, yielded an imprisonment range of 21 to 27 months.
Her 21-month sentence is presumed reasonable, see Rita v. United States, 551 U.S. 338,
347 (2007); United States v. Smith, 721 F.3d 904, 906 (7th Cir. 2013), and nothing about
this case warrants an exception to that presumption. Before imposing the sentence the
judge considered Bohlen’s mental-health issues and her need to care for her mother. On
the other hand, the judge considered that Bohlen was stealing money that was intended
for families of DOC employees killed in the line of duty and that she may never be able
to fully repay the amount that she stole. See 18 U.S.C. § 3553(a).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.