United States v. Sloan, Keith ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3310
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH SLOAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 586-11—Harry D. Leinenweber, Judge.
____________
ARGUED APRIL 13, 2006—DECIDED OCTOBER 11, 2007
____________
Before COFFEY, KANNE and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. After being charged with three
counts of mail fraud, an aspiring young lawyer named
Keith Sloan entered into a plea agreement with the
government that allowed him to plead guilty to a single
misdemeanor count of making a false statement to the
Department of Housing and Urban Development (HUD)
(rather than face the three felony counts he was originally
charged with), in exchange for his promise to cooperate
and testify against his co-defendants in the fraudulent
real estate financial scheme in which he had been a
willing and ongoing participant. Somehow, satisfied with
the defendant’s cooperation, the government did not
recommend incarceration, and the judge sentenced him to
2 No. 05-3310
a term of three years of probation, and at the same time
imposed joint and several liability with ten of his co-
defendants for $638,396.47 in restitution1 and 200 hours
of community service. The government obtained an order
of garnishment in order to collect the restitution from
Sloan who has appealed the order. WE AFFIRM.
On July 25, 2000, a federal grand jury returned a
sixteen-count indictment charging Sloan and his nineteen
co-defendants with a scheme to defraud HUD and a
number of other private mortgage lenders. Three of the
counts charged Sloan with the commission of mail fraud
felonies in violation of 18 U.S.C. § 1341. Sloan had gradu-
ated from the Northern Illinois University Law School
just prior to the date of sentencing (January 31, 2002).
Thus, with his being allowed to plead guilty to a misde-
meanor (rather than three felonies), for reasons unex-
plained, the defendant was allowed to be admitted
to practice law in Illinois.2 After the completion of
Sloan’s probation, during which time he had made only a
pittance of a payment on the restitution ordered, the
government secured an order of garnishment in hopes of
collecting the outstanding balance of $3,886,004.94 (an
amount which included accrued interest) of the restitu-
tion previously ordered from him on the joint and several
liability premise. Sloan, the defendant-appellant, chal-
1
Although Sloan had a total of nineteen co-defendants, on the
recommendation of the prosecutor the court only imposed
restitution on Sloan and nine others.
2
At the time of his sentencing hearing in January of 2002, Sloan
had completed Northern Illinois University College of Law and
was awaiting clearance from the Illinois Board of Admissions
Committee on Character and Fitness. Sloan was admitted to
the Illinois Bar on November 10, 2005. He practices with the
law firm of Madsen, Sugden & Gottemoller in Crystal Lake,
Illinois.
No. 05-3310 3
lenged the order arguing, for the first time, that the
order of restitution was entered without statutory au-
thorization. Furthermore, it should be made clear that
he did not challenge the restitution order at the time of
sentencing. The district court denied his objection and
entered an order of continuing garnishment. Sloan ap-
peals.
Because a garnishment order is a final appealable order,
see United States v. Mays, 430 F.3d 963, 965 (8th Cir.
2005) (“A ‘final decision’ generally is one which ends the
litigation on the merits and leaves nothing for the court
to do but execute the judgment.”), cert. denied, 126 S.Ct.
1416 (2006), quoting Catlin v. United States, 324 U.S. 229,
233 (1945); Central States, Southeast and Southwest Areas
Pension Fund v. Express Freight Lines, Inc., 971 F.2d 5, 6
(7th Cir. 1992) (“A contested collection proceeding will end
in a judgment or a series of judgments granting supple-
mentary relief to the plaintiff [in this garnishment case,
the government]. The judgment that concludes the col-
lection proceeding is the judgment from which the defen-
dant can appeal.”), this court has jurisdiction to hear
the appeal. See 28 U.S.C. § 1291 (“The courts of appeals
(other than the United States Court of Appeals for the
Federal Circuit) shall have jurisdiction of appeals from
all final decisions of the district courts of the United
States. . . . ”); United States v. Rand, 403 F.3d 489, 493
(7th Cir. 2005) (“28 U.S.C. § 1291 . . . provides for ap-
peals from final orders of the district courts . . . .”).
Because the order of garnishment is valid, we affirm.
I. BACKGROUND
Keith Sloan came in contact with his co-defendant
Robert Voltl, a practicing attorney, while Sloan was a
student on summer break from undergraduate studies at
Purdue University and was employed as a part-time pro
shop attendant at a golf course in Dundee, Illinois. In May
4 No. 05-3310
of 1993, Sloan advised Voltl that he had completed a
paralegal program at Roosevelt University in Schaumburg,
Illinois.3 He inquired about the possibility of employment
in Voltl’s law office in Chicago, Illinois. Voltl hired him as
a full-time paralegal4 in May of 1993. He continued in that
capacity until he entered law school in 1998.
The original felony indictment charged him with a fraud
scheme, commencing in the month of August 1995, and
continuing until at least January of 1998. Sloan and his
nineteen co-defendants perpetrated and perpetuated a
scheme to defraud HUD. The initial step in the scheme
was to purchase a piece of property by paying the full
sales price without having to borrow funds against the
value of the property (first purchase). Brian Parr and
several other co-defendants, in the fraudulent scheme,
went in search of parcels of real estate to purchase with
the intention of reselling them to second purchasers
they recruited. A number of the defendants continued to
recruit other “straw purchasers”5 to buy these properties
immediately after their initial purchase at fraudulently
3
Despite Sloan’s claim to have enrolled, studied and completed
a paralegal program, his Presentence Investigation Report
(PSR) states: “A response from this school indicated that they
had no record of the defendant attending [Roosevelt] [U]niversity
[in Illinois].” The record is barren of any information as to
whether or not he ever attended Roosevelt University.
4
The PSR states: “The defendant was employed full-time by
Robert Voltl as a law clerk. He earned $14 per hour and he
resigned from this position in order that he might attend law
school full-time.” The terms “law clerk” and “paralegal” are not
synonyms.
5
In the context of real estate sales, a “straw purchaser” is a
person who is knowingly purchasing property to conceal the
identity of the real purchaser who is not able to complete the
transaction in his or her own name. See United States v. Dollar,
25 F. Supp. 2d 1320, 1323 (N.D. Ala. 1998).
No. 05-3310 5
inflated prices. The straw purchasers, in turn, received
cash payments from a number of the named defendants in
exchange for allowing the defendants to use their individ-
ual credit histories. Other second purchasers were told
that they could purchase residences with “no money down”
and receive cash back at closing.
In order to facilitate the second purchases, many of the
named defendants, including Sloan as well as various
agents and representatives of the innocent lenders,
actually participated in the creation of the fraudulent
documents used on behalf of the second purchasers
in support of the inflated second purchase prices. These
fraudulent documents were submitted to lenders during
the mortgage application and approval process with the
intent of ensuring that the second purchasers would
qualify for mortgage loans from lenders. Two of the
defendants, Tamara Smith and Nancy Zimmerman, had
the duty of creating the fraudulent real estate appraisals
in support of the second purchase prices. The inflated
appraisals were also submitted to the lenders with the
purpose of ensuring that the inflated mortgage loans
would be issued.
A number of the defendants assisted in the closings
during the second real estate purchase transactions by
arranging for the parties on both sides of the closings to
be represented by Robert Voltl even though there was
an obvious conflict of interest. Voltl facilitated the comple-
tion of both the first and second purchases by schedul-
ing the second purchase closing at an earlier time so
that the proceeds from the sale could be used to make
the first purchase. In this way the defendants used the
proceeds from the mortgage loans to finance properties
for second purchasers even though the first purchaser had
not yet acquired the title. Occasionally, after the comple-
tion of the two purchases, combinations of defendants
6 No. 05-3310
would enable the refinancing of the very same property
by the creation of other fake documents to accompany
the inflated appraisals.
Throughout the scheme the defendants profited from
the difference between the inflated second purchase price
and the initial purchase price (the spread). The spread
often exceeded $100,000.00 per piece of real estate. These
proceeds funded illegal payments to the defendants such
as Tamara Smyth and Nancy Zimmerman for their
participation in the fraudulent purchase and resale
scheme. The defendants persuaded the lending companies
to issue inflated mortgage loans on at least seventy-seven
properties in the Chicago area. The loans exceeded ten
million dollars of which more than three million dollars
were insured by HUD6 and the Federal Housing Admin-
istration (FHA).7
6
The United States Department of Housing and Urban Develop-
ment (HUD) was the governmental entity that provided insur-
ance protection guaranteed by the United States government
to private lending institutions which were engaged in financ-
ing federally-insured mortgage loans to qualified buyers.
7
The Federal Housing Administration (FHA) was the organiza-
tional unit within HUD that administered HUD’s mortgage
insurance program. In the case of federally-insured mortgage
loans, applicants were required to submit information to their
lenders and to HUD. The information included the applicant’s
employer’s name, the applicant’s social security number, date
of birth, monthly gross pay, prior ownership of property, assets,
and liabilities. In addition, each applicant was required to certify
that he or she was going to occupy the property for which he
or she was seeking a mortgage; further, that neither he or she
had filed for bankruptcy within the past seven years, that he
or she had no outstanding judgments and that he or she had
never been subject to any foreclosures. The applicant was also
required to certify the amount of the down payment that he
or she was making on a property.
No. 05-3310 7
Each of the twenty defendants in this fraudulent enter-
prise performed his or her own particular role which was
connected somehow with his or her respective employment
responsibilities. Robert Voltl, with the assistance of Keith
Sloan and co-defendant Sandra Lesniewski (another
paralegal in the firm), knowingly prepared materially
false and misleading documents dealing with the sales of
the properties for presentation to the lenders at closing.
After fraudulently obtaining these monies from the
lenders, Voltl, along with Sloan and Lesniewski, wrote
checks from his own client trust account to various payees
in order that he might fund the first “cash” purchase
and also to compensate his co-schemers.
Sloan, at the direction of Voltl, regularly attended the
real estate closings, notarized the documents and prepared
all necessary documents, as well as signing the necessary
checks on behalf of Voltl. As an example, during the
closing process on the property being sold to Edward Scott
Ellis, Sloan knowingly and fraudulently notarized the
signatures of Ellis and his wife (while neither of them was
in his presence) on the lender’s Articles of Agreement,
which also falsely stated that they had sold their home.8
Based on the documents notarized by the defendant Sloan,
Ellis was approved for a HUD-insured loan in the amount
of $158,000. Within months after the closing, Ellis stopped
making mortgage payments, resulting in a net loss on
this property to the United States of approximately
$173,211.62.
8
The Illinois Notary Public Act provides that: “In witnessing or
attesting a signature, the notary public must determine, either
from personal knowledge or from satisfactory evidence, that the
signature is that of a person appearing before the notary and
named therein.” 5 Ill. Comp. Stat. 312/6-102(c) (2005) (The Act
became effective in 1986). This statute requires that the person
or persons signing the document must be physically present
when the notary attests to their signatures.
8 No. 05-3310
Under the direction of Voltl, Sloan assisted in handling
real estate closings for a co-defendant named Brian Parr.
Also, on other occasions, Sloan often notarized the signa-
tures on the closing documents in spite of the fact that
the parties were not physically present at the time of
signing in violation of the law. See 5 Ill. Comp. Stat. 312/6-
102 (2005). Furthermore, on multiple occasions, Sloan, also
at Voltl’s direction, knowingly signed the name of one
Ahmad Martins (a.k.a. Brian Parr) on warranty deeds
when he was without authorization. On a few occasions,
Voltl asked Sloan to fill out title fund commit-
ment forms setting forth that Brian Parr had sold a
parcel of property when in fact Parr and Sloan were
both well aware that Parr did not have legal title to the
land. On a number of occasions, also at Voltl’s direction,
Sloan fraudulently inscribed Voltl’s name on checks used
at closings for down payments that should have been paid
by the buyers pursuant to the terms of the loan documents
and the HUD guarantees. From 1995 to 1998, Sloan
facilitated the purchase or sale of at least fourteen “flips”9
of properties.
The lure and scheme used by the defendants was to
recruit buyers for this fraudulent enterprise with an offer
to sell them property with “no money down.” Thus, in
effect, they were essentially purchasing parcels of real
estate without using any of their own money. In some
circumstances, when necessary, the initial buyers first
rented the properties to other parties and used the funds
received from either the rental or the sale to pay off the
loans. In this way, the buyers were able to live in the
property rent free or sell. By assisting these buyers in
certifying falsely that they had used their own money for
9
To “flip” is “[t]o buy and then immediately resell . . . real estate
in an attempt to turn a profit.” Black’s Law Dictionary 670 (8th
ed. 2004).
No. 05-3310 9
the down payments, Sloan defrauded HUD. When a
property was forced into foreclosure proceedings, it was
sold for the true value of the property and not for the
fraudulently inflated value of the false appraisal
and payout, resulting in HUD incurring a substantial
financial loss.
In 1998, Sloan resigned from Voltl’s firm and entered
the Northern Illinois University College of Law in DeKalb,
Illinois, and matriculated there from August 25, 1998,
until May 26, 2001, when he obtained his Juris Doctor
degree. On July 25, 2000, a Special Grand Jury for the
Northern District of Illinois had returned a sixteen-count
indictment against Sloan and nineteen other co-defen-
dants. On August 7, 2000, Sloan entered a plea of “not
guilty” before a magistrate judge and was released on a
$4,500 personal recognizance bond. Subsequently, as
pointed out earlier, he entered into a plea agreement with
the government, and on May 14, 2001, Sloan appeared
before the district judge, withdrew his pleas of not guilty
to the felony counts, and entered into the written guilty
plea agreement referred to herein. Pursuant to the
written and negotiated plea agreement between the
United States and the defendant, the United States
Attorney withdrew the original three-felony indictment.
After the felony charges were dismissed on May 23,
2001, a one-count superceding information was filed
charging Sloan with a misdemeanor rather than with the
original three felonies. The new information recited that
on or about April 30, 1996, the defendant Sloan, with
intent to defraud, caused a material misstatement to be
made on a residential loan application document with
HUD. The information explained:
that defendant witnesses Individuals A and B [Edward
Scott Ellis and his wife] sign an Articles of Agreement,
dated March 26, 1996, indicating that they had sold
2276 McCartney Drive, Naperville, which was a
10 No. 05-3310
prerequisite to HUD insuring the residential real
estate loan, when in fact defendant did not witness
Individuals A and B sign the Articles of Agreement
and did not know if Individuals A and B had signed
the Articles of Agreement.
Sloan’s failure to witness the signing was a misdemeanor
in violation of 18 U.S.C. § 1012.
In the signed plea agreement, Sloan voluntarily ac-
knowledged his criminal conduct that formed the basis
for the charge and stipulated to his participation in the
fraudulent scheme, although he somehow now denies it.
It is interesting to note that Sloan acknowledges that he
has read the agreement and that he fully understood each
and every element of the crime with which he has been
charged as set forth in the document. He admits that he
acted with intent to defraud as a matter of law. Also in the
plea agreement, Sloan promised to cooperate with the
government in the trial of co-defendants Robert Voltl
and Reginald Owens.
As to the restitution, the parties agreed that the defen-
dant’s relevant conduct, referred to in the plea agree-
ment, formed the basis for the charge and that the net loss
for all of the properties involved was $641,183.69, less any
amounts recovered by the lenders after the sale of the
properties following any foreclosures. The government
proceeded on the theory (which Sloan did not contest) that
the offense to which Sloan pled guilty, including the
relevant conduct, was an offense against property10
committed by fraud or deceit and required an order of
10
Under 18 U.S.C. § 3663A, an “offense against property” in-
cludes all property crimes included in Title 18 of the United
States Code or under section 416(a) of the Controlled Substances
Act, 21 U.S.C. § 856(a), including any offense committed by
fraud or deceit. See 18 U.S.C. § 3663A(c)(1)(A)(ii). See also
footnote 14, infra.
No. 05-3310 11
restitution pursuant to 18 U.S.C. § 3663A.11 The plea
agreement also provided that “[t]he defendant reserves the
right to contest the entry of the order of restitution.” The
plea agreement signed and approved by the defendant
also contained the following provisions:
Defendant further understands he is waiving all
appellate issues that might have been available if he
had exercised his right to trial. The defendant know-
ingly waives the right to appeal any sentence imposed
in accordance with the agreement or the manner in
which that sentence was determined, in exchange for
the concessions made by the United States in this
Plea Agreement. The defendant also waives his right
to challenge his sentence or the manner in which it
was determined in any collateral attack, including
but not limited to a motion brought under Title 28,
United States Code, Section 2255. The waiver in this
paragraph does not apply to a claim of involuntariness,
or ineffective assistance of counsel, which relates
directly to the waiver or to its negotiation.
Plea Agreement ¶ 11 (emphasis supplied).
In the plea bargain the parties requested that the court
take the following factors into consideration when cal-
culating the sentencing guidelines range:
(1) the relevant conduct exceeded $500,000, but was less
than $800,000;
(2) Sloan’s participation in the crime involved more than
minimal planning;
11
Although the three felony charges contained in the original
indictment were offenses against property committed by fraud
or deceit which required an order of restitution, the misde-
meanor to which Sloan pleaded guilty was not a crime against
property and did not require an order of restitution.
12 No. 05-3310
(3) Sloan’s use of his special skills as a paralegal and a
notary in committing the crimes charged;
(4) Sloan was a minor participant in the scheme to
defraud;
(5) Sloan had no criminal history; and
(6) Sloan was to be credited with accepting responsi-
bility12 and cooperating.
On January 31, 2002, Sloan, along with his counsel,
participated in his sentencing hearing. When specifically
asked by the presiding judge about the accuracy of the
PSR, all parties agreed to it and neither party offered
any corrections. The sentencing hearing transcript con-
tains the following exchange:
THE COURT: Mr. Sloan, are you satisfied that it [facts
and conclusions in the PSR] is accurate factually?
THE DEFENDANT [Keith Sloan]: Yes
THE COURT: Is the government satisfied—
MR. POWERS [Assistant United States Attorney]: The
government is, as well.
The district judge next inquired of the parties before the
court about restitution:
THE COURT: The restitution is—
MR. POWERS: If I may, Your Honor. The restitution
has come down slightly for this defendant. The figure
12
In a section titled “Adjustment for Acceptance of Responsibil-
ity,” Sloan’s Presentence Report states that: “The defendant
admitted to his participation in the instant offense through his
written plea agreement acknowledging his involvement. He
meets the criteria for the third-point decrease under § 3E1.1(b)
because his offense level is greater than 16 and he timely noti-
fied authorities of his intention to plead guilty.”
No. 05-3310 13
that we would ask the court to enter is $638,396.47
[the original dollar amount had been reduced due to
payments made by co-defendants].
THE COURT: Is that correct, Mr. Polachek [attorney
representing Keith Sloan]?
MR. POLACHEK: I agree with that, yes.
THE COURT: The restitution is set at—I am going to
waive the fine because of the restitution require-
ment—$638,396.47, . . . .
The government moved for a downward departure based
upon Sloan’s promise to cooperate at the trial of the co-
defendants Voltl and Reginald Owens.13 During Sloan’s
allocution, he made no mention of, nor did he refer to
or dispute, the amount set forth in the agreed upon restitu-
tion, nor did he deny, much less challenge, the statement
therein that he participated in the scheme to defraud. At
the conclusion of the hearing, and after having heard all
the parties, the court found Sloan jointly and severally
liable with ten co-defendants for $638,396.47 in restitu-
tion. Additionally, the court entered a judgment of convic-
tion and sentenced Sloan to three years of probation and
200 hours of community service.
13
At the sentencing hearing the government told the court that:
. . . Mr. Sloan provided substantial assistance to the govern-
ment in the investigation. He was proffered several times
by the agents in court today. Mr. Carver and Mr. Linsler, the
two case agents. He met with the government both plea-
indictment [sic] and post-indictment. He was prepared to
testify. Again, Your Honor did not have the benefit of
hearing his testimony because the government made a
decision not to call him as a witness but it was not due
to any unwillingness on the defendant’s part.
14 No. 05-3310
Despite the provision in the plea agreement allowing
Sloan to contest the entry of the order of restitution, at no
time during the proceedings did he dispute or object to the
amount of restitution or to the entry of the order or any
segment thereof. Sloan neither appealed nor collaterally
attacked his sentence. If the defendant had believed there
was any error, he could have moved to correct a substantive
error in a sentence within seven days of the entry of judg-
ment under Federal Rule of Criminal Procedure 36. Sloan
never saw fit to file such a motion.
On March 22, 2005, the government applied to the court
for a writ of continuing garnishment to collect Sloan’s
outstanding restitution14 pursuant to a provision of the
Federal Debt Collection Procedure Act, 28 U.S.C. § 3205.
Thereafter, the government commenced a civil action for
an order of garnishment because, on March 9, 2004, Sloan
had successfully convinced the court to terminate his
three-year period of probation after only twenty-six
months. Payment of restitution had obviously been a
paramount condition of Sloan’s probation. Once this
term of probation was completed, the government, in order
to protect its interest in the order of restitution, sought
an order from the court for a continuing garnishment.
The district court issued the writ of garnishment to
Sloan’s employer, the law firm of Madsen, Sugden &
Gottemoller in Crystal Lake, Illinois, and Sloan was
properly served with notice of the writ and application.
See 28 U.S.C. § 3205. Sloan’s employer filed an answer
to the writ stating that Sloan was paid weekly and
14
Sloan had been making payments on the court-ordered
restitution as a condition of his probation. With probation
completed, the court, as requested, issued an order for continu-
ing garnishment for the amount of restitution which remained
unpaid.
No. 05-3310 15
that the amount sought by the government—twenty-five
percent of Sloan’s disposable earnings— presently equaled
$147.76.15 The United States then moved for a garnish-
ment order directing the employer to remit twenty-five
percent of Sloan’s weekly disposable income to the
Federal Court Registry until the entire judgment of
restitution in the amount of $638,396.47 for which Sloan
and the other defendants were held to be jointly and
severally liable is paid.
Sloan responded by attempting to make an end run
around the garnishment order by alleging that the orig-
inal restitution order (to which he had agreed in writing
and in open court) had exceeded the court’s authority, and
the government responded, by pointing out that Sloan
had specifically agreed to the amount of restitution
($638,396.47). Furthermore, he never challenged the
restitution order at any time during the sentencing
hearing or thereafter until this action. Sloan without
leave of the court filed an unauthorized supplemental
response asking that his response to the garnishment be
treated as a petition for a writ of error coram nobis or as
a motion for relief under Federal Rule of Civil Procedure
60(b)(4). Sloan claimed that the restitution order was
illegal because it was issued without either jurisdiction or
statutory authority. In an oral ruling following the gar-
nishment hearing, the district court concluded that
Sloan’s challenge to the restitution order was not filed
timely (within seven days of the entry of the order. See
Federal Rule of Criminal Procedure 35(c)) and granted the
order of garnishment, which was entered on June 10, 2005.
15
The Consumer Credit Protection Act, 15 U.S.C. §§ 1671, et seq.,
prohibits a wage garnishment in excess of 25% of an employee’s
weekly disposable earnings.
16 No. 05-3310
This appeal followed. The government describes the
situation as follows and we agree:
Three years after Keith Sloan received the benefits
of a plea agreement (including dismissal of all his
felony charges), he unsuccessfully tried to renege on
his written agreement not to collaterally attack his
sentence. His belated attempt to vacate the restitu-
tion portion of his sentence—that he and his attorney
explicitly agreed to—was correctly rejected by the
district court. Sloan’s challenge should be rejected out
of hand because he voluntarily signed a plea agree-
ment supported by consideration not to collaterally
attack his sentence and now he is collaterally attack-
ing the sentence.
Brief and Appendix of the United States at 6-7.
II. DISCUSSION
Sloan raises one issue on appeal: “Whether the Court
erred when it entered an Order of garnishment enforcing
the restitution portion of the criminal judgment which he
contends was invalid as being beyond the statutory
authority conferred upon the District Court by the
superceding criminal information to which Sloan had
pled guilty.” Although Sloan attempts to focus on the
restitution order, we wish to make clear and point out
that he did not appeal that order as he appealed only
the order of garnishment. The garnishment action was
brought in a collateral proceeding to the underlying
criminal action against Sloan. The authority to order
garnishment is a question of law and is reviewed de novo.
See In re Southwestern Glass Company, 332 F.3d 513, 516
(8th Cir. 2003) (when a garnishment order is appealed
“[w]e review the district court’s findings of fact for clear
error and the court’s conclusions of law de novo.”).
No. 05-3310 17
ORDER OF GARNISHMENT
In a garnishment proceeding, a valid judgment against
the judgment debtor (in this case, Keith Sloan) is a
necessary essential to the validity of a judgment against
the garnishee. See Morton v. United States, 708 F.2d 680,
686 n.5 (Fed. Cir. 1983), rev’d on other grounds, 467 U.S.
822 (1984); see also Passarella v. Hilton Int’l Co., 810 F.2d
674, 677 (7th Cir. 1987); In re Wey, 66 B.R. 638, 639-40
(C.D. Ill. 1986). Sloan argues that the judgment entered
in the criminal case on January 31, 2002, which contains
the restitution provision, is invalid because the restitu-
tion order is contrary to law. The defendant points out
that he pleaded guilty to a single misdemeanor charge of
causing a material misstatement to be made on an applica-
tion for a residential loan which was to be guaranteed
by HUD. In a self-serving statement that is without a
logical, much less a legal, basis or support in precedent,
Sloan now contends that in the plea agreement he did not
admit to involvement in the overall scheme to defraud as
charged in the indictment. Yet, at the sentencing hearing,
all the parties agreed on the record that, based on the
relevant conduct described in the plea agreement (the
overall scheme to defraud), Sloan is jointly and severally
liable with the other defendants for restitution in the
amount of $638,396.41.16 Sloan also complains that the
properties to which this loss was attributed were not even
listed in the plea agreement.
The defendant contends that he did not plead guilty to
participating in the overall scheme to defraud; he did
16
Sloan’s Presentence Report states that: “The government
contends that the offense to which the defendant pled guilty,
including relevant conduct, is an offense against property, and
thus, an order of restitution is required, pursuant to 18 U.S.C.
§ 3663A.” Sloan agreed and did not contest the government’s
position at that time.
18 No. 05-3310
state that he stipulated to relevant fraudulent conduct
which included the overall multi-defendant scheme to
defraud as well as his role in the scheme as charged in
the original indictment. Paragraph six of the plea agree-
ment specifically recites that the “defendant acknowl-
edges that, as a matter of law, he came to act with intent
to defraud in his conduct as a paralegal for Voltl in the
Parr flip transactions.” In addition, even though the
preface to the plea agreement states that: “This Plea
Agreement concerns criminal liability only,” it also clearly
states that: “nothing herein shall limit or in any way waive
or release any administrative or judicial civil claim,
demand or cause of action, whatsoever, of the United States
or its agencies” (emphasis supplied).
We are cognizant of the language in United States v.
Randle which recites that: “Federal courts possess no
inherent authority to order restitution, and may do so
only as explicitly empowered by statute.” United States v.
Randle, 324 F.3d 550, 555 (7th Cir. 2003). There must
be a “direct nexus between the offense of conviction and
the loss being remedied.” Id. at 556. Only those losses
caused by “the specific conduct that is the basis of the
offense of conviction” are authorized by statute to be the
subject of any order of restitution. Hughey v. United
States, 495 U.S. 411, 413 (1990).
We have reviewed the defendant Sloan’s arguments
in their entirety, including his arguments in his brief, and
reject each of them in light of Section 3663A(a)(3) of Title
18 of the United States Code, which specifically permits
the defendant to undertake additional restitution obliga-
tions via a plea agreement. Sloan’s plea agreement, which
he read, approved and signed, as pointed out heretofore,
clearly sets forth that he understood that the “offense to
which he is pleading guilty carries a maximum penalty of
one year imprisonment, a one-year term of supervised
No. 05-3310 19
release, a fine of $100,000, as well as any restitution [in the
amount of $638,396.47] ordered by the Court.” Plea Agree-
ment ¶ 6 (emphasis supplied). Sloan, in a self-serving
declaration, somehow casts aside and forgets that the
government became a party to the plea agreement only
after he had personally stipulated in writing and again
orally in open court and on the record that he be held
jointly and severally liable for the amount of restitution
($638,396.47).
The government argues that, even if the parties to
Sloan’s plea agreement might conceivably have made a
mutual mistake of law in not realizing that the restitu-
tion to which they agreed was not mandatory and that
it was not tied to the offense of conviction, the govern-
ment has continuously argued and points out now that
the plea document implicitly contained “an agreement
to pay restitution beyond the offense of conviction.” From
a reading of this record in its entirety, it is very clear
that the payment of restitution was the central theme and
focus of the parties’ bargain. Cf. United States v.
Fariduddin, 469 F.3d 1111, 1113 (7th Cir. 2006) (“. . . it
was in part by promising to make full and immediate
restitution that Fariduddin obtained a reduction in his
prison term.”). To quote Mr. Justice Holmes, “there is no
canon against using common sense in construing [plea
agreements] as saying what they obviously mean.” Roschen
v. Ward, 279 U.S. 337, 339 (1929), quoted in Moore v.
Marketplace Restaurant, Inc., 754 F.2d 1336, 1346 (7th
Cir. 1985) (emphasis supplied). The parties knowingly
and voluntarily agreed to the order of restitution.17
17
In the plea agreement, the parties agreed “that the conduct
which forms the basis for the charge in the instant case to
which the defendant is pleading guilty caused a net loss of
approximately $641,183.69 less any amounts recovered by the
(continued...)
20 No. 05-3310
Sloan, in the original language set forth in the indict-
ment, was charged with three felony offenses. In exchange
for the offer on the part of the government for a reduc-
tion from three felonies to one misdemeanor, Sloan agreed
in writing and on the record in open court to cooperate
and to be adjudged jointly and severally liable for
$638,396.41 in restitution. Furthermore, he also clearly
waived his right to appeal the sentence, including the
amount of restitution (unless he could claim that his
attorney’s ineffective assistance of counsel rendered the
plea involuntary) or to attack the judgment in a collateral
proceeding. We are aware that he was to “reserve the right
to contest the entry of the order of restitution.” If he was
contesting the entry of the restitution order, Sloan or his
counsel could have and should have raised an objection at
the sentencing hearing prior to entry of the criminal
judgment, but that contention is not set forth in a proper
manner in his meritless appeal. Furthermore, and most
telling, the district judge specifically stated that: “I am
going to waive the fine because of the restitution required.”
Plea Hearing Transcript at 15 (emphasis supplied).
When considered in their entirety, these provisions
make it most clear and obvious that the parties were
referring to nothing but the order of restitution in the
amount of $638,396.41. This was the basis for their
bargain. It is a common sense interpretation of the plea
bargain and sentence. The error of law claimed here is
not jurisdictional and, furthermore, it is not plainly
prejudicial to Sloan, who appears to believe that he can
enjoy the benefits of his plea agreement, which, after all,
reduced three felonies to a misdemeanor in addition to
17
(...continued)
Lender after sale of the property following the respective fore-
closures.” Plea Agreement ¶ 17.
No. 05-3310 21
leaving him eligible to become a licensed attorney in
Illinois. On the other hand, if this action is to be re-
manded to the district court and should the restitution
portion be invalidated in any way, the entire plea agree-
ment would, in all probability, be voided and set aside on
proper motion on the part of the government. See United
States v. Peterson, 268 F.3d 533, 534 (7th Cir. 2001). Sloan
would once again more properly face three felony counts
and a possible prison sentence in addition to the restitu-
tion imposed.
In sum, Sloan entered into an agreement freely and
voluntarily to pay restitution. He is bound to make the
payments. If his intention was not to make the payments,
he should not have entered into the agreement. He has
entered into a plea bargain from which he has already
received the benefit of not incurring felony convictions
and now he refuses to carry out and fulfill his legal
requirement to pay. Instead, Sloan is asking the court to
excuse him from performing that part of the voluntary
plea agreement which he feels was disadvantageous to
him without interfering with the benefits he has already
received.
Sloan’s arguments fail and submerge into a quagmire of
quicksand, for at no time during the long and tedious
proceedings did he challenge the legality of the restitution
nor the computation of the amount at the sentencing
hearing. Furthermore, as we have pointed out before, he
also failed to file a motion within the seven day limit to
seek relief pursuant to Federal Rule of Criminal Procedure
35. With no timely appeal, the judgment of conviction
with its restitution provision became final in 2002. Dur-
ing the garnishment proceedings in 2005, the district
judge concluded that it was too late for Sloan to challenge
the restitution order. We agree. Moreover, we hold that the
district court had jurisdiction to enter the order. We refuse
to vacate and set aside the order of garnishment.
22 No. 05-3310
CORAM NOBIS
Additionally, Sloan, as part of his buckshot approach,
asks this court to treat his submission to the district court
in the garnishment proceedings as a petition for a writ of
error coram nobis.18 The Supreme Court considers it
“difficult to conceive of a situation in a federal criminal
case today where [a writ of coram nobis] would be neces-
sary or appropriate.” Carlisle v. United States, 517 U.S.
416, 429 (1996). To the extent that the writ of coram
nobis retains vitality in criminal proceedings, such relief
is limited to (1) errors “of the most fundamental character”
that render the proceeding invalid, (2) situations where
there are sound reasons for the failure to seek earlier
relief, and (3) instances when the defendant continues
to suffer from his conviction even though he is out of
custody. United States v. Morgan, 346 U.S. 502, 509 n.15,
511-12 (1954). See also Barnickel v. United States, 113
F.3d 704, 705-06 (7th Cir. 1997).
In Sloan’s case, the error complained of is not of the
“most fundamental character” or one that amounts to a
miscarriage of justice. Restitution orders that sweep too
much conduct into their calculations are issues that
must be raised on direct appeal and do not rise to the
level of a constitutional violation. See Barnickel, 113 F.3d
at 706. Moreover, the defendant has not set forth any
18
Sloan also seeks relief under Federal Rule of Civil Procedure
60(b)(4) on the ground that the restitution order contained in
his judgment of conviction was entered without jurisdiction and
is void. Even if a judgment may come to be partially predicated
on an inapplicable law (as Sloan is claiming), this occurrence
does not divest a court of jurisdiction over the subject matter or
over the parties to an action. Because Sloan’s judgment of
conviction was properly entered with jurisdiction, this court
sees no reason to consider remanding this case to allow the
district court to consider granting relief pursuant to Rule 60.
No. 05-3310 23
valid or logical reasoning much less case law for his
failure to seek relief earlier. As related above, Sloan
neither objected at the sentencing hearing nor sought
relief under Federal Rule of Criminal Procedure 35. The
record is barren of any explanation for these omissions.
The third requirement is that the defendant must
demonstrate a lingering civil disability from his alleged
wrongful sentence. Civil disability has three elements:
(1) the disability must be causing a present harm; (2)
the disability must arise out of the erroneous sentence;
and (3) the potential harm to the petitioner must be more
than incidental. See United States v. Craig, 907 F.2d 653,
658 (7th Cir. 1990). Sloan somehow fallaciously reasons
that he is prejudiced because he does not want to pay the
$638,396.47 in restitution that he voluntarily agreed to
pay. He now contends that the restitution order is a
present harm that arises out of the criminal conviction.
However, an order of restitution is no different than an
award of damages in civil litigation. “It is a sunk cost19
rather than a continuing disability producing additional
injury as time passes.” United States v. Keane, 852 F.2d
199, 204 (7th Cir. 1988), cert. denied, 490 U.S. 1084 (1989).
Moreover, the payment of $638,396.47 is the very essence
and heart of the negotiated plea agreement between the
government and the defendant which he willingly and
knowingly entered into.20 Thus, Sloan’s financial injury
19
A “sunk cost” is a cost actually incurred which cannot be
recovered regardless of future events. Sunk Cost, at http://www.
investorwords.com/4813/sunk_cost.html (last visited March 19,
2007).
20
The government points out that this amount will not be
satisfied through garnishment of Sloan’s wages at the rate of
$148 per week (twenty-five percent of his disposable income at
the time of sentencing). The government states that: “Over the
remaining 16-year life of the judgment, the total collected will be
(continued...)
24 No. 05-3310
cannot be classified as the sort of civil disability that can
support the issuance of the writ of coram nobis. See United
States v. Bush, 888 F.2d 1145, 1148 (7th Cir. 1989).
As this court has observed:
The reason to bend the usual rules of finality is miss-
ing when liberty is not at stake. Courts must conserve
their scarce time to resolve the claims of those who
have yet to receive their first decision.
Keane, 852 F.2d at 203 (emphasis supplied). For these
reasons, the district court need not address Sloan’s re-
quest in the nature of a writ of error coram nobis.
CONCLUSION
We affirm the district court’s order of garnishment and
its refusal to consider the purported petition in the nature
of a writ of error coram nobis. Furthermore, we direct the
clerk of this court to forward a copy of this opinion to the
Attorney Registration and Disciplinary Commission of
Illinois. Although Illinois admitted Sloan to its bar in
2005, presumably with full knowledge of his conviction, the
state’s decision may well have been influenced by the
appearance that as of that date Sloan had accepted respon-
20
(...continued)
less than $125,000. 18 U.S.C. § 3613(b) (judgment expires 20
years from entry).” Brief and Appendix of the United States at 13
n.4. On the other hand, the judgment could be satisfied before
the twenty years is up because Sloan will get credit for payments
made by his ten jointly and severally liable co-defendants or he
could get a salary increase and make larger payments. This court
realizes that the order of garnishment and its amount of restitu-
tion may be renewed for another twenty years if a motion is
made before the expiration of the present order of garnishment.
See 28 U.S.C. § 3201(c).
No. 05-3310 25
sibility and was making amends, which he has not. These
proceedings clearly demonstrate that Sloan has not kept
that promise and is doing what he can to shirk his respon-
sibility; this calls into question his character and fitness
for membership in the bar.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-11-07