United States v. Belk, Joshua ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2711
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA BELK,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:03 CR 70—James T. Moody, Judge.
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ARGUED JANUARY 11, 2006—DECIDED JANUARY 31, 2006
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Before FLAUM, Chief Judge, and EASTERBROOK and
MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. In 1996 George Rogge
hired Joshua Belk as the bookkeeper for his insurance
agency. Belk decided that he could multiply his income
through embezzlement. Over the years he siphoned more
than $675,000 from Rogge’s business, driving it into
bankruptcy. Belk has been convicted of mail fraud, see
18 U.S.C. §1341, because several of the devices used to
divert funds from Rogge’s accounts to his own entailed
mailings. Only the sentence—51 months’ imprisonment
plus $678,306.65 in restitution to George C. Rogge Agency,
Inc.—is contested on appeal.
2 No. 05-2711
The eight counts of conviction stem from checks that
diverted $60,600 from Rogge to Belk. He contends that the
district court should have used this sum as both the loss,
when performing the advisory Guidelines calculations,
and the amount of restitution. The argument depends
largely on the sixth amendment and United States v.
Booker, 543 U.S. 220 (2005), but ignores the remedial
portion of that decision, which concluded that judges may
continue to make findings based on a preponderance of
the evidence, provided that they do not treat the Sentencing
Guidelines as “laws” with binding effect. The district court,
which sentenced Belk six months after Booker, applied that
decision correctly. Belk does not deny that a preponderance
of the evidence demonstrates that the loss under U.S.S.G.
§2B1.1(b) exceeds $400,000. His sentence of 51 months falls
within a properly calculated range (51-63 months) for such
a loss and so is presumptively appropriate. United States v.
Mykytiuk, 415 F.3d 606 (7th Cir. 2005); United States v.
Dean, 414 F.3d 725 (7th Cir. 2005). Belk does not offer us
any reason to deem his sentence unreasonable, beyond his
mistaken belief that the jury had to determine the loss.
Belk’s protest about the amount of restitution likewise
fails to the extent it rests on Booker, for restitution lacks a
“statutory maximum” and the whole Apprendi framework
(of which Booker is an instance) therefore is inapplicable.
See, e.g., United States v. George, 403 F.3d 470, 473 (7th
Cir. 2005); United States v. Behrman, 235 F.3d 1049, 1054
(7th Cir. 2000). That the judge relied on hearsay is normal
and appropriate in sentencing; Belk does not contend that
this hearsay (which reflects the Rogge agency’s financial
records) was unreliable. The district judge was not obliged
to explain why he ordered restitution while deeming Belk
unable to pay a fine. Before 1996 such an explanation for
apparently inconsistent conclusions was vital, see United
States v. Ahmad, 2 F.3d 245 (7th Cir. 1993), but the
Mandatory Victim Restitution Act, 18 U.S.C. §3663A,
No. 05-2711 3
makes a judgment of restitution obligatory regardless of the
defendant’s current or anticipated ability to pay, so there is
no inconsistency to explain.
Restitution is limited to the loss caused by the crimes
of which the defendant stands convicted, unless he agrees
to pay more, which Belk did not. See §3663A(a); Hughey v.
United States, 495 U.S. 411 (1990); United States v. Peter-
son, 268 F.3d 533 (7th Cir. 2001). Belk contends that he has
been convicted only of the eight mailings by which he
extracted $60,600. That misunderstands the nature
of a §1341 conviction, however. The “crime” covered by
§1341 is the scheme to defraud, not (just) the mailings that
occur in the course of the scheme. This indictment laid out,
and the jury convicted Belk of, a multi-year scheme to
defraud Rogge’s brokerage. The eight mailings were just
overt acts. Restitution for the whole scheme is in order. See,
e.g., United States v. Mitrione, 357 F.3d 712, 721 (7th Cir.
2004); United States v. Brown, 47 F.3d 198 (7th Cir. 1995);
United States v. Turino, 978 F.2d 315, 319 (7th Cir. 1992);
United States v. Brothers, 955 F.2d 493 (7th Cir. 1992);
United States v. Bennett, 943 F.2d 738 (7th Cir. 1991).
We recognize that some decisions limited restitution
orders to amounts entailed in those particular mailings that
underlie particular counts. See, e.g., United States
v. Seligsohn, 981 F.2d 1418, 1421 (3d Cir. 1992). These
decisions, however, did not consider the Crime Control Act
of 1990, which vindicated our approach by defining as a
“victim” entitled to compensation “any person directly
harmed by the defendant’s criminal conduct in the course of
the scheme, conspiracy, or pattern.” 104 Stat. 483 (1990),
amending 18 U.S.C. §3663; see also 18 U.S.C. §3663A(a)(2).
Courts that have considered the 1990 amendments follow
this circuit’s approach, and the third circuit has abandoned
Seligsohn. See United States v. Hensley, 91 F.3d 274 (1st
Cir. 1996); United States v. Kones, 77 F.3d 66, 68-70 (3d
Cir. 1996) (restitution is appropriate, notwithstanding
4 No. 05-2711
Seligsohn, for losses “directly” caused by the entire scheme
to defraud); United States v. Stouffer, 986 F.2d 916 (5th Cir.
1993); United States v. Davis, 170 F.3d 617, 627 (6th Cir.
1999); United States v. Hasson, 333 F.3d 1264, 1276 n.13
(11th Cir. 2003). No decision that has taken account of the
amendments made in 1990 and 1996 supports Belk’s
position.
Even apart from the statutory definition of “victim,” an
approach that links restitution to the amount extracted
by particular mailings is hard to reconcile with the fact that
the fraud in a §1341 offense need not be conducted through
the mails. One who hatches a fraudulent scheme and uses
the mails to carry truthful matter that is important to the
scheme’s success still violates the statute. A good example
is the odometer-rollback scheme in Schmuck v. United
States, 489 U.S. 705 (1989), in which the fraud was a false
representation to the purchasers that led them to pay too
much for used cars, while the mails were used to send
documents that enabled the defendant to transfer titles to
the cars’ buyers. On the view for which Belk contends, there
could be no restitution for such schemes, because none of
the mailings diverted any funds. Yet the fraudulent scheme
would remain, and a criminal scheme that imposes loss may
(and after 1996 must) lead to an award that makes the
victim whole.
AFFIRMED
No. 05-2711 5
A true Copy:
Teste:
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Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-31-06