NONPRECEDENTIAL DISPOSITION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
Argued March 6, 2013
Decided March 28, 2013
Before
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐1998 Appeal from the United States District
Court for the Northern District of Illinois,
UNITED STATES OF AMERICA, Eastern Division.
Plaintiff‐Appellee,
No. 10 CR 913‐3
v.
Charles R. Norgle,
RADE MANOJLOVIC, Judge.
Defendant‐Appellant.
O R D E R
A jury convicted Rade Manojlovic of wire fraud for using straw buyers to obtain
home loans. At sentencing the district court calculated a total guidelines offense level of 21,
which included two levels for obstructing justice. See U.S.S.G. § 3C1.1. The court applied
this enhancement because Manojlovic concealed assets from the probation officer who
prepared the presentence report. Manojlovic argues that his nondisclosure was immaterial
and not willful. We reject these arguments and affirm. Truthful information about a
defendant’s financial situation is material at sentencing because it has a tendency to
influence whether a fine is imposed and how restitution is structured. And the district court
did not clearly err in finding that Manojlovic willfully concealed his assets.
No. 12‐1998 Page 2
I. Background
Manojlovic turned to mortgage fraud in 2005 when he could no longer afford the
mortgage on his own house. Assisted by his friend and codefendant, Nicholas Kangadis, he
recruited a straw buyer to apply for a home loan that would pay off his outstanding balance
and also net him a profit. The straw buyer reported a grossly inflated income on her loan
application and falsely attested that she would reside in the house she was purchasing; in
reality the house was Manojlovic’s, he continued to live there, and he pocketed more than
$120,000 when the straw buyer’s loan came through. A year later, using a different straw
buyer, Manojlovic did the same thing all over again, but when the new mortgage went
unpaid, the house entered foreclosure. Manojlovic then filed a forged quitclaim deed in an
unsuccessful attempt to regain ownership of the house.
A jury found Manojlovic guilty of two counts of wire fraud, see
18 U.S.C. § 1343, and
a probation officer met with him to collect information for the presentence report.
Manojlovic submitted a net worth statement during this meeting in which he attested to
having assets totaling no more than $25. In fact, he deposited a $25,000 check into one of his
bank accounts on the same day that he met with the probation officer. The government
learned of the deposit weeks later—but before Manojlovic’s sentencing—and informed his
lawyer and the probation officer. Only then did Manojlovic admit to having received the
money. He claimed that it was repayment for a loan he had made—to someone whose
name he could not remember—and that he had spent it on legal fees and living expenses
almost as soon as he received it.
At sentencing the prosecutor argued that the offense level should be increased by
two levels for obstruction of justice based on Manojlovic’s false net worth statement. The
obstruction adjustment applies when the defendant has “willfully obstructed or impeded,
or attempted to obstruct or impede, the administration of justice with respect to . . .
sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Providing false
information to a probation officer in connection with a presentence investigation constitutes
obstruction (or attempted obstruction) only if the information provided is “materially
false,” see id. cmt. n.4(H). Manojlovic argued that his failure to disclose the $25,000 was
neither “willful” nor “material.” He said he had simply forgotten about the money and
stressed that his possession of the money was very brief.
The district court applied the § 3C1.1 adjustment, explaining that Manojlovic’s
willfulness was evident from the timing of the deposit and that the materiality requirement
was satisfied because a defendant’s finances are relevant to “the payment of a fine,
restitution, costs, or any related expenses.” The judge then sentenced Manojlovic to 37
months’ imprisonment (the bottom of the guidelines range) and 2 years’ supervised release.
No. 12‐1998 Page 3
In addition, the judge ordered Manojlovic to pay $259,000 in mandatory restitution, but
chose not to impose a fine. The judge also explained that Manojlovic would be unable to
pay the costs of supervised release or to make restitution payments until the
commencement of his supervised release.
II. Analysis
On appeal Manojlovic again argues that the misinformation he provided in his net
worth statement was immaterial. It is well settled that a defendant’s concealment of assets
from a probation officer can support an obstruction adjustment under § 3C1.1 because his
financial situation is relevant to his ability to pay fines or restitution. See United States v.
Ramunno,
133 F.3d 476, 481–82 (7th Cir. 1998); United States v. Gabel,
85 F.3d 1217, 1221–22
(7th Cir. 1996); United States v. Miller,
607 F.3d 144, 150–51 (5th Cir. 2010); United States v.
King,
559 F.3d 810, 815 (8th Cir. 2009); United States v. Hernandez‐Ramirez,
254 F.3d 841,
843–44 (9th Cir. 2001); United States v. Romer,
148 F.3d 359, 372 (4th Cir. 1998); United States
v. Ballard,
16 F.3d 1110, 1112–13 (10th Cir. 1994); United States v. Smaw,
993 F.2d 902, 904
(D.C. Cir. 1993); United States v. Cusumano,
943 F.2d 305, 316 (3d Cir. 1991). Manojlovic
contends that his failure to disclose the $25,000 deposit was immaterial because the district
court never said that this information about his assets actually influenced the restitution
order.
This argument misunderstands the materiality requirement in § 3C1.1. The
concealed information need only “tend to influence or affect the issue under determination”
in order to be material. U.S.S.G. § 3C1.1 cmt. n.6 (emphasis added). The obstruction
adjustment may be applied to a defendant who conceals assets even if the defendant’s
assets do not ultimately influence his sentence. See Miller,
607 F.3d at 151; Hernandez‐
Ramirez,
254 F.3d at 843–44; Smaw,
993 F.2d at 904; see also United States v. Bedolla‐Zavala,
611
F.3d 392, 396 (7th Cir. 2010) (“The relevant considerations are the kind of information
provided and its tendency to influence the court, not the actual effect of a particular
misstatement.”).
The cases Manojlovic cites in his brief—United States v. Partee,
301 F.3d 576 (7th Cir.
2002), and United States v. Thomas,
11 F.3d 1392 (7th Cir. 1993)—in no way foreclose the
application of § 3C1.1 in this case. Those cases approve of applying § 3C1.1 to defendants
who misled a probation officer about something other than a bank account balance. Neither
case suggests that a defendant’s lying about his assets cannot merit an obstruction
adjustment, and neither case stands for the proposition that a falsehood is material only
when it actually influences a sentencing decision. To the contrary, the defendant in Thomas
argued, as Manojlovic does here, that the information he tried to conceal (his age) was
No. 12‐1998 Page 4
immaterial because it did not actually affect his sentence. We explained that truthful
information about the defendant’s age was relevant to the probation officer’s investigation
of an earlier arrest and concluded that the defendant’s “conduct is not mitigated by the fact
that the district court ultimately did not consider the prior arrest in imposing sentence.”
See Thomas,
11 F.3d at 1401.
Manojlovic also contends that he did not willfully conceal the $25,000 from his
probation officer. Whether a defendant acted willfully for § 3C1.1 purposes is a factual
determination, so our review is for clear error. United States v. Carroll,
346 F.3d 744, 748 (7th
Cir. 2003). The district court’s finding is not clearly erroneous. Manojlovic deposited the
$25,000 on the very day he met with the probation officer and submitted the false net worth
statement. And Manojlovic’s decision to come clean after the government discovered the
deposit makes no difference. Like the defendant in Thomas, he apparently “did not intend to
provide the correct information until he learned that he could be penalized for providing
the false information.”
11 F.3d at 1400.
AFFIRMED.
