United States v. Aron, Leonard ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2878
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEONARD ARON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 616—John W. Darrah, Judge.
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ARGUED JANUARY 21, 2003—DECIDED MAY 13, 2003
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Before POSNER, KANNE, and DIANE P. WOOD, Circuit
Judges.
KANNE, Circuit Judge. Leonard Aron pleaded guilty to
one count of wire fraud, based on two separate, fraudulent
transactions. The district court sentenced him to 60
months imprisonment. At sentencing, Aron moved for a
downward departure, which the district court denied.
Because the district court recognized that it had the
legal authority to depart downward but found that the
facts of Aron’s case did not warrant a departure, we have
no jurisdiction, and this appeal is dismissed.
2 No. 02-2878
I. History
Underlying the wire-fraud charge in this case are two
transactions involving fraudulent bonds distributed by
Leonard Aron, a seventy-four-year-old man with four prior
felony convictions dating back to the 1960s. The first
transaction in this case commenced in 1996 when Aron
traveled to Florida to visit Franco Nicoletti, a man he
originally met while serving time at a federal prison in the
mid-1980s. Nicoletti had been trying to obtain a loan of $8-
9 million from Richard Rendina, a Florida attorney. Aron
informed Nicoletti that he had access to counterfeit bonds
that Nicoletti could use to secure the loan. The two made
a deal whereby Aron sent $8.7 million in counterfeit
bonds to Nicoletti in return for an up-front fee of 25% of
the value of the loan.
During Nicoletti’s subsequent efforts to obtain the loan,
Rendina became suspicious of the bonds and contacted
law enforcement. The authorities devised an operation to
set up Nicoletti to tender the bonds to an undercover agent.
The operation was successful, and Nicoletti was arrested
and subsequently indicted on federal charges stemming
from the delivery of counterfeit bonds. No charges were
filed against Aron at that time.
The second transaction underlying Aron’s wire fraud
charge occurred in early 2000 when a Chicago entrepre-
neur put him in touch with an individual in Florida wish-
ing to obtain capital for a business investment. In April
2000, Aron sold this individual $1.96 million in counter-
feit bonds in two installments. A few days after the sec-
ond installment, the individual discovered a problem
with the bonds and went to the authorities to report his
dealings with Aron.
Following an investigation, a federal grand jury in-
dicted Aron on three counts—wire fraud, interstate trans-
portation of a security taken by fraud, and uttering coun-
No. 02-2878 3
terfeit securities, in violation of 18 U.S.C. §§ 1343, 2314,
& 513(a). Pursuant to a written plea agreement, Aron
pleaded guilty to one count of wire fraud, and the other
charges were dismissed.
At his sentencing hearing, Aron sought a three-level
downward departure under USSG § 5K2.0, arguing that
the $8.7 million portion of the intended loss (based on the
1996 transaction) would have been impossible to achieve
because it involved a government sting operation. The
government countered that Aron should not receive a
downward departure on the basis of impossibility be-
cause this was not a classic sting operation where the
intended loss is impossible because the undercover agents
will never actually purchase the contraband. Rather, the
government argued, given that these bonds were in exis-
tence and that Aron was engaged in an ongoing criminal
scheme involving the bonds, the intended loss of $8.7
million was neither unrealistic nor impossible. In other
words, had the authorities not entered the picture, Nicoletti
and Aron most likely would have tendered the bonds to
some other individual or institution willing to provide
the loan.
The district court denied Aron’s motion for a downward
departure, providing two separate reasons for the denial.
First, the court agreed with the government that the
intended loss of $8.7 million was not impossible: “Given
the totality of the facts and circumstances . . . I find that
it is not unreasonable to conclude that intended loss of
an additional eight million dollars was contemplated by
the defendant and that a loss based on the additional
eight million dollars is not impossible or fanciful.” (S.Tr.
at 21.) Second, the court stated that even “if the defen-
dant were to be considered eligible for a downward depar-
ture because such an amount would be deemed . . . to be
impossible . . . I find that based on the defendant’s criminal
history . . . that it would not be the appropriate exercise
4 No. 02-2878
of this court’s discretion to grant such a downward depar-
ture.” (Id.)
In this appeal, Aron argues that the district court erred
in refusing to grant him the downward departure based
on impossibility. He does not challenge, or even mention,
the district court’s alternative basis for not granting
the departure—that even if Aron did qualify for a down-
ward departure based on impossibility, the district court
would not exercise its discretion to depart because of
Aron’s criminal history.
II. Analysis
Appellate review of sentences is controlled by 18 U.S.C.
§ 3742. Section 3742(a) provides four circumstances under
which a defendant may seek appellate review of a sen-
tence imposed against him: “if the sentence (1) was im-
posed in violation of law; (2) was imposed as a result of
an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable
guideline range . . . ; or (4) was imposed for an offense
for which there is no sentencing guideline and is plainly
unreasonable.” 18 U.S.C. §3742(a) (2003). In United States
v. Franz, we determined based on the statute’s structure
and legislative history that a defendant may seek review
of a district court’s refusal to depart downward only under
§ 3742(a)(1)—that is, if the sentence was imposed in
violation of the law. 886 F.2d 973, 977-80 (7th Cir. 1989).
Therefore, “[i]f there is no legal error in the sentence . . .
then there is no jurisdiction over a defendant’s claim that
the court should have departed downward.” United States
v. Crucean, 241 F.3d 895, 898 (7th Cir. 2001).
We have repeatedly held that there is no legal error,
and therefore no jurisdiction for appellate review of a
district court’s refusal to depart downward, when the
district court understood that it had the legal authority
No. 02-2878 5
to depart but, in its discretion, chose not to do so. See, e.g.,
United States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002);
United States v. Albarran, 233 F.3d 972, 978 (7th Cir.
2000); United States v. Wright, 37 F.3d 358, 360-61 (7th Cir.
1994).
For instance, in United States v. Lewis, the defendant,
charged with various drug offences, argued that a down-
ward departure was warranted because he had under-
gone pre-sentence rehabilitative treatment for his drug
dependency. 79 F.3d 688, 692 (7th Cir. 1996). The defen-
dant noted that under the guidelines, a downward depar-
ture may be given “if the rehabilitation is so extraordi-
nary as to suggest its presence to a degree not adequately
taken into consideration by the acceptance of responsibil-
ity reduction.” Id. (quoting United States v. Harrington,
947 F.2d 956, 962 (D.C. Cir. 1991)) (citations omitted).
The district court refused to depart downward, noting
that defendant’s rehabilitative efforts, while honorable,
were not so extraordinary that they were not adequately
considered in the acceptance of responsibility reduction. Id.
at 692-93. On appeal, we held that we had no jurisdiction
to review the district court’s refusal to depart because
“it was clear that the district court denied Lewis’ depar-
ture motion not because it lacked the legal authority to
depart” but because the court determined that Lewis’s
rehabilitative efforts simply were not extraordinary enough
to warrant a departure. Id. at 693.
Similarly, the transcript of Aron’s sentencing hearing
reveals that the district court recognized that it had the
authority to depart but found that the facts simply did not
warrant the exercise of that authority. The court stated:
“Given the totality of the facts and circumstances of this
case . . . I find that it is not unreasonable to conclude
that intended loss of an additional eight million dollars
was contemplated by the defendant and that a loss based
on the additional eight million dollars is not impossible
or fanciful.” (S.Tr. at 21.) This statement reveals that
6 No. 02-2878
the court recognized that it could depart if the intended
loss was impossible, but refused to depart because it
made the factual determination that the intended loss
in this case was not impossible. Therefore, the district
court committed no legal error, and we lack jurisdiction
over this appeal.
Moreover, even if the district court did not recognize its
authority to depart, we still would be without jurisdic-
tion because the district court had a separate and independ-
ent reason for refusing the downward departure. The court
stated that even assuming that the intended loss was
impossible, it would not grant a downward departure
because “based on the defendant’s criminal history, particu-
larly his recent criminal history at an advanced age, that
it would not be the appropriate exercise of this court’s
discretion to grant such a downward departure.” This
alternative reason for refusing to depart was an exercise
of the district court’s discretion that is not reviewable
by this court. See United States v. Wright, 37 F.3d 358, 360-
61 (7th Cir. 1994) (“We have no jurisdiction to review a
district court’s discretionary refusal to depart downward
from the Guidelines.”).
III. Conclusion
For the foregoing reasons, we lack jurisdiction to re-
view the district court’s refusal to grant a downward
departure. This appeal is DISMISSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-13-03