United States v. Goldberg, Jeffrey L. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-3955
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY L. GOLDBERG,
Defendant-Appellant.
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Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 CR 332—Milton I. Shadur, Judge.
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ARGUED APRIL 4, 2005—DECIDED MAY 5, 2005
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Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
mail fraud and was sentenced to 52 months in prison, the
middle of the applicable guideline range after the judge
imposed a two-level “vulnerable victim” enhancement.
U.S.S.G. § 3A1.1(b). The appeal challenges the enhancement
and also seeks, in the alternative, a Booker-motivated limited
remand under United States v. Paladino, 401 F.3d 471, 483-84
(7th Cir. 2005). It is an alternative because the defendant
would prefer that we order him resentenced rather than
merely ask the judge whether he would give the defendant
2 No. 03-3955
the same sentence under the post-Booker regime, in which
the sentencing guidelines are advisory, rather than, as
before, mandatory. We shall see later that it is a risky
preference.
A certified financial planner, acccountant, and lawyer,
Goldberg defrauded some 130 people of a total of some
$8 million. The judge received more than 20 letters from
victims of Goldberg’s scheme, and at the sentencing hearing
read into the record four of them, including one from
Goldberg’s own aunt, a woman in her eighties. Goldberg
had fleeced her and her husband of more than $100,000—in
her words, a “majority of my husband’s and my entire
lifetime assets, other than Social Security.” A letter from an-
other woman, not elderly, stated: “I was truly at a vul-
nerable point in my life when I met Jeff Goldberg . . . . At
the time of the divorce I felt I needed someone that I could
trust to help me negotiate and understand the financial
aspect of the divorce settlement as I had no knowledge at all
of financial matters.” The judge thought the four letters
showed that some of Goldberg’s victims had indeed been
vulnerable victims.
Goldberg complains that there is no evidence that he
targeted vulnerable persons. The government responds that
if a victim is vulnerable, it is irrelevant that he or she was
not a target. Concerning this issue there is tension in our
cases, compare United States v. Parolin, 239 F.3d 922, 927 n.
2 (7th Cir. 2001); United States v. Paneras, 222 F.3d 406, 413
(7th Cir. 2000), and United States v. Snyder, 189 F.3d 640, 649
(7th Cir. 1999), with United States v. Sims, 329 F.3d 937, 944
(7th Cir. 2003); United States v. Rumsavich, 313 F.3d 407, 411
(7th Cir. 2002); United States v. Grimes, 173 F.3d 634, 637-38
(7th Cir. 1999), and United States v. Almaguer, 146 F.3d 474,
478 (7th Cir. 1998), as well as in cases from other circuits.
See, e.g., United States v. Frank, 247 F.3d 1257, 1259-60 (11th
No. 03-3955 3
Cir. 2001); United States v. Brawner, 173 F.3d 966, 973 (6th
Cir. 1999); United States v. Burgos, 137 F.3d 841, 843-44 (5th
Cir. 1998). The cases that dispense with the requirement
note that an explicit “targeting” requirement in an applica-
tion note to the applicable guideline (U.S.S.G. §3A1.1(b)(1))
was removed by the Sentencing Commission in 1995.
The tension can be dissolved by noting the difference be-
tween a nonindividualized fraudulent solicitation communi-
cated indiscriminately by mail or television or other media to
a large audience of potential victims, and a personalized
solicitation in which the defendant deals face to face with his
victims. In the first type of case, the presence of vulnerable
victims is accidental and unavoidable and the defendant
makes no effort to exploit anyone’s vulnerability. “[The
current] application note says that the enhancement ‘would
not apply in a case in which the defendant sold fraudulent
securities by mail to the general public and one of the
victims happened to be senile.’ U.S.S.G. § 3A1.1, cmt. n. 2.
The missing element in that case is that the defendant had
no reason to know such a victim existed.” United States v.
Zats, 298 F.3d 182, 189 (3d Cir. 2002). In the second type of
case the defendant could easily avoid dealing with vulnera-
ble victims and, having decided not to forbear, should not
be allowed to escape responsibility for having taken advan-
tage of people unable to protect themselves. Knowledge that
some of the people he was dealing with were especially
vulnerable to financial fraud did not cause Goldberg to lay
off them. See United States v. Monostra, 125 F.3d 183, 190 (3d
Cir. 1997). He knew he was exploiting the vulnerable, along
with others who were not vulnerable. He intended the
inevitable consequences of his acts.
Very oddly, the government, in response to questions
from the bench, told us that Goldberg had not been given
adequate notice that such an enhancement was in the offing.
4 No. 03-3955
If true, he would be entitled to a new sentencing hearing.
E.g., United States v. Pandiello, 184 F.3d 682, 686 (7th Cir.
1999); United States v. Carey, 382 F.3d 387, 392 (3d Cir. 2004);
United States v. Thorn, 317 F.3d 107, 131 n. 17 (2d Cir. 2003).
It is not true. Although neither the prosecutor nor the
presentence investigation report had recommended such an
enhancement, the judge warned the parties before the
sentencing hearing that he might consider it because of the
letters he had received from victims of the fraud. At argu-
ment Goldberg’s lawyer told us he hadn’t seen many of the
letters until the sentencing hearing, but he did not contend
and could not truthfully have contended that he had had no
opportunity to inspect and if possible refute the damaging
letters well in advance. No more process than this was
required. See United States v. Pandiello, supra, 184 F.3d at 686-
87.
For on August 18, 2003, months before sentencing, the
district judge had told the parties that he had received
“some letters from victims and three supplemental reports
(dated July 11, July 30, and August 8, 2003) from the pro-
bation officer that summarize other victim impact state-
ments.” The judge “advise[d] the defendant and counsel for
both parties that at the time of sentencing this court will
consider one or both of the following bases for possibly
imposing a custodial sentence in excess of the range of 37 to
46 months that applies to the total offense level of 21 and a
criminal history category of 1 (the estimate reflected in the
PSI): (1) a possible two-level increase in the total offense
level, occasioned by the possible application of the vulner-
able victim adjustment under [U.S.S.G.] § 3A1.1; (2) a
possible upward departure under Guideline § 5K2.0 (or
perhaps Guideline § 5K2.3 as well) by reason of what may
be found to be the exceptionally severe impact of defendant’s
conduct on numerous victims.” The judge added that “all of
No. 03-3955 5
those materials have also been provided to defense counsel
and the United States Attorney’s Office” and that the parties
could file written responses.
On October 22, Goldberg filed a motion for a downward
departure in which he argued against a vulnerable-victim
enhancement. Further supplements identifying victims of
Goldberg’s fraud were submitted by the probation office
before the sentencing hearing on October 30—at which
Goldberg acknowledged having received them.
Although there was no infirmity in the judge’s procedure,
Goldberg is entitled to a limited Paladino remand because
the judge based the enhancement on his own findings. It is
worth pointing out, however, that Goldberg may be better
off with that relief than with his preferred relief, which is an
order resentencing him. Any resentencing would be con-
ducted under the new, post-Booker regime, in which the
guidelines are merely advisory, and so he’d be exposed to
the risk of a higher sentence. Suppose we agreed with him
that the judge hadn’t given adequate notice of intent to
impose a vulnerable-victim enhancement. Suppose further
that if the case were remanded for resentencing, the judge,
after giving Goldberg due notice, again imposed the vulner-
able-victim enhancement. The judge might then decide that
52 months was too light a punishment for Goldberg’s crime.
Although the sentence was at the midpoint of the guideline
range, the range is now merely advisory. Judge Shadur
made clear that he was disturbed by the magnitude of
Goldberg’s fraud and moved by the letters from which we
quoted. He might want to give Goldberg a longer sentence,
and if the departure were a reasonable one we would have
to affirm.
We were surprised to learn that Goldberg’s lawyer and—
we understand from him, and from the argument of another
criminal defense lawyer in an appeal argued before us the
6 No. 03-3955
same day—other members of the defense bar as well believe
that a sentence meted out in the pre-Booker era of mandatory
guidelines is the ceiling in the event of a resentencing unless
there are changed factual circumstances, such as additional
criminal conduct by the defendant. If there are no such
changed circumstances, Goldberg’s lawyer told us, the
inference would arise that any heavier sentence imposed on
remand was vindictively motivated and therefore improper.
That is a misunderstanding, and it is a misunderstanding
dangerous to criminal defendants. When there is no relevant
legal or factual change between sentence and resentence, the
motive for an increase in punishment is indeed suspect.
Alabama v. Smith, 490 U.S. 794, 798-99 (1989); United States v.
Peyton, 353 F.3d 1080, 1085-86 (9th Cir. 2003); United States
v. Rodgers, 278 F.3d 599, 603 (6th Cir. 2002). But Booker
brought about a fundamental change in the sentencing
regime. The guidelines, mandatory when Goldberg was
sentenced, are now advisory. Were he to be resentenced, it
would be under a different standard, one that would entitle
the judge to raise or lower the sentence, provided the new
sentence was justifiable under the standard of reasonable-
ness. United States v. Tedder, No. 03-3345, 2005 WL 767061,
at *8 (7th Cir. Apr. 6, 2005); United States v. Forrest, 402 F.3d
678, 684 (6th Cir. 2005). No inference of vindictiveness
would arise from the exercise of the judge’s new authority.
The risk that the judge might increase the sentence is not
significant in a Paladino remand. Such a remand asks the
judge whether he would have given the defendant a shorter
sentence had he realized the guidelines are merely advisory.
If so, this would show that his treating the guidelines as
mandatory had been a plain error, and so we would vacate
for resentencing. Since our basis for doing this would be the
judge’s having told us that he wanted to shorten the defen-
dant’s sentence, it would be an unusual case, to say the
No. 03-3955 7
least, in which the judge would impose a heavier rather
than a lighter sentence; presumably it would be a case in
which damaging new information had come to light since
the Paladino remand.
Tedder in contrast was a case in which we ordered the
defendant resentenced because the judge had misapplied
the guidelines, in which event he can impose a higher sen-
tence because the guidelines are merely advisory. And this
demonstrates that a defendant who appeals a pre-Booker
sentence on the basis that the guidelines were misapplied
(as in Goldberg’s challenge to the vulnerable-victim en-
hancement) is playing with fire, because if he wins and is
resentenced the judge will have more sentencing latitude,
up as well as down, than he did when the guidelines were
deemed mandatory.
But the challenge failed in this case, and Goldberg is
therefore entitled only to a Paladino remand, which we
hereby order.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-5-05