United States v. Francis Schmitz , 717 F.3d 536 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3269
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
F RANCIS A LAN SCHMITZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 361—Rebecca R. Pallmeyer, Judge.
A RGUED JUNE 5, 2012—D ECIDED M AY 29, 2013
Before B AUER, R OVNER, and H AMILTON, Circuit Judges.
R OVNER, Circuit Judge. Defendant-Appellant Francis Alan
Schmitz pleaded guilty to a charge of mail fraud and
was ordered to serve 84 months in prison, a term
slightly below the low end of the sentencing range
advised by the Sentencing Guidelines. Schmitz con-
tends that the district court committed two errors in
sentencing him: (1) a procedural error, when it failed to
address his contention that “factor creep” in the Guide-
2 No. 11-3269
lines has inflated beyond reason the sentencing range
for white collar frauds, and particularly for someone
of his age and health; and (2) relied on an erroneous
understanding of the timespan of the fraud to which
he pleaded guilty. Finding that the district court com-
mitted no procedural or factual error in sentencing
Schmitz, we affirm.
I.
Pursuant to a written plea agreement, Schmitz
pleaded guilty to one count of a criminal information
charging him with mail fraud affecting a financial in-
stitution, in violation of 18 U.S.C. § 1341. (A second
count charging him with committing bank fraud in viola-
tion of 18 U.S.C. § 1344 was dismissed on the govern-
ment’s motion at sentencing.) Beginning in or about
July 2003, Schmitz had convinced a series of financial
institutions and others to lend him money, ostensibly
to invest in real estate development, by telling these
institutions that he was the beneficiary of a multi-million
dollar trust fund whose assets were available as col-
lateral for the loans. In fact, there was no trust and no
trust assets. But Schmitz concocted a convincing trail
of paper and digital documents (including trust account
statements, tax returns, emails, and letters) making it
appear as if there were, going so far as to create a
phony financial services firm (with a website and
virtual office space) that purportedly held assets of the
fictitious trust, and then to file suit in state court against
two (fictitious) employees of the (non-existent) firm
No. 11-3269 3
claiming that they had mishandled the (non-existent)
trust. Ultimately, Schmitz was able to obtain more
than $6 million from seven banks and two additional
lenders. He used just under half of that total to pay off
previous lenders, in Ponzi-like fashion. The rest—roughly
$3.1 million—he used to benefit himself and his
personal business ventures, and this amount marked
the extent of the lenders’ collective loss.
The plea agreement anticipated that Schmitz’s ad-
justed offense level would be 28, after a three-level reduc-
tion for acceptance of responsibility; that his criminal
history category would be I; and that his Guidelines
sentencing range would be 78 to 97 months. Despite
a skirmish at sentencing as to whether Schmitz had
forfeited his entitlement to credit for acceptance of re-
sponsibility by submitting to the court a version of his
offense that minimized his culpability, the court granted
him the three-level reduction after he withdrew his
statement and determined his adjusted offense level to
be 28, as the parties had anticipated. However, be-
cause Schmitz began the charged fraud in 2003, while
he was still on supervised release in connection with
a prior state conviction, see U.S.S.G. § 4A1.1(d) (specifying
two additional criminal history points if the defendant
committed the offense of conviction while under any
criminal justice sentence), the parties agreed, and the
court found, that his criminal history category should
be II. The resulting advisory Guidelines range was 87 to
108 months in prison.
Schmitz sought a substantially below-Guidelines sen-
tence of 36 months, and among his arguments in sup-
4 No. 11-3269
port of a reduced sentence were two that are relevant
to this appeal. He contended that the Guidelines speci-
fied an excessive sentence for someone convicted of
a white collar crime like fraud, and that because his
age (60) combined with a variety of health conditions
meant he had both a shorter life expectancy and a
lower risk of re-offending, a sentence within the ad-
visory range was greater than necessary to serve the
statutory sentencing goals set forth in 18 U.S.C.
§ 3553(a)(2).
The first of these arguments was focused on the sub-
stantial lengthening of the Guidelines sentencing
range for fraud, larceny, and similar offenses that has
occurred over the last two decades. The longer sentences
for such offenses are in the main the result of a three-fold
increase in the number of specific offense characteristics
(from six to 18) incorporated into the fraud guideline,
see U.S.S.G. § 2B1.1(b), a phenomenon that has been
described as “factor creep,” see R. Barry Ruback &
Jonathan Wroblewski, The Federal Sentencing Guidelines:
Psychological and Policy Reasons for Simplification, 7 Psychol.
Pub. Policy & L. 739, 752-53 (2001), coupled with a sub-
stantial increase in the number of points imposed for
the amount of the loss, a longstanding and central offense
characteristic in fraud and theft cases, see § 2B1.1(b)(1).1
1
Schmitz’s fraud, for example, because it inflicted a loss in
excess of $2.5 million, called for an 18-point increase in his
offense level, see § 2B1.1(b)(1)(J) (Nov. 2009); under the 1987
(continued...)
No. 11-3269 5
Schmitz contended that the harsher penalties for fraud
offenses represented a departure from the philosophy
animating the original version of the Guidelines, namely
that a short but definite period of incarceration would
suffice as a deterrent to most white collar offenders.
The sentencing range produced by Schmitz’s offense
characteristics exemplified the new, more punitive phil-
osophy: With a criminal history category of II, under
the 1987 Guidelines, Schmitz’s sentencing range would
have been 24 to 30 months.2 Under the 2000 Guidelines,
it would have been 47 to 57 months.3 Under the 2009
1
(...continued)
version of the Guidelines, the same loss amount would
have demanded a 12-point increase in the offense level,
see U.S.S.G. § 2B1.1(b)(1)(M) (Oct. 1987).
2
Under the 1987 Guidelines, the base offense level would
have been 4, see § 2B1.1(a); 15 points would have been added
for the amount of the loss, see § 2B1.1(b)(1)(M); and another
two points would have been added because the offense
involved more than minimal planning, see § 2B1.1(b)(4). As
section 3E1.1 in 1987 capped the credit for acceptance of
responsibility at two points rather than three, Schmitz’s final
adjusted offense level would have been 16 points rather
than 15, as Schmitz’s counsel assumed below. See R. 47 at 9.
3
Under the November 2000 Guidelines, the base offense
level would have been 4, see § 2B1.1(a); 15 points would have
been added for the amount of the loss, see § 2B1.1(b)(1)(P); two
points would have been added because the offense involved
more than minimal planning, see § 2B1.1(b)(4)(A); and an
additional four points would have been added because
(continued...)
6 No. 11-3269
Guidelines, which were used to calculate Schmitz’s ad-
visory sentencing range, the range was 87 to 108
months. In short, the range increased by more than
300 percent in the 24 years since the original version
of the Guidelines was issued. Schmitz asserted that in
adopting much longer sentences, the Sentencing Com-
mission had failed to fulfill its institutional role by
shifting sentencing policy to a more punitive model
without the support of any empirical data demon-
strating the value of such substantial increases. Like
Schmitz, we shall refer to this argument as his “factor
creep” argument.
Schmitz secondarily argued that for a person of his
age and with his health conditions, a within-Guidelines
sentence would occupy virtually all of the remaining
productive years of his life. Schmitz was 60 years old
at time of sentencing, with an average remaining
life expectancy of 20.6 years. However, Schmitz also
had been diagnosed with high blood pressure, high
cholesterol, coronary heart disease, and an enlarged
prostate. Schmitz was taking medications for each of
these conditions, including Lisinopril and hydrochloro-
thiazide (for high blood pressure), Simvastatin (for
high cholesterol), low-dose aspirin (for the heart), and
3
(...continued)
Schmitz obtained more than $1 million in gross receipts from
one financial institution, see § 2B1.1(b)(6)(B). Three levels
would have been deducted for acceptance of responsibility
pursuant to section 3E1.1 (which by this time provided for
the third point), bringing Schmitz’s final offense level to 22.
No. 11-3269 7
Terazosin (for the prostate); and he presented no evi-
dence that any of his conditions was life-threatening or
life-shortening even with medication. He nonetheless
argued that these conditions distinguished him from
other persons convicted of fraud offenses for sentencing
purposes in that they reduced his life expectancy as
well as his likelihood of re-offending. In Schmitz’s view,
there was no empirical data to suggest that for someone
of his age and health, a within-guidelines sentence was
no greater than necessary to achieve deterrence and
the other sentencing goals set forth in 18 U.S.C. § 3553(a).
The district court implicitly rejected the first of
these arguments and expressly rejected the second.
Judge Pallmeyer observed that she agreed with Schmitz’s
contention that it is the fact rather than length of incar-
ceration that matters for the purpose of deterring
white collar criminals (R. 72 at 34-35), which suggests
that she had taken note of his policy-based challenge to
the fraud guideline. Beyond that one remark, however,
she did not address the merits of the challenge. She
did address Schmitz’s health issues, observing that
these conditions were not uncommon for someone of
his age, and expressed confidence that adequate treat-
ment was available in prison for them. R. 72 at 33-34.
In passing sentence, Judge Pallmeyer took note of
the Guidelines range and indicated that the defense
might be right when it contended that a criminal his-
tory category of II overstated the extent of Schmitz’s
criminal background. After addressing Schmitz’s health
concerns, the judge noted the aggravating and miti-
8 No. 11-3269
gating factors that she found relevant. She remarked
that Schmitz’s fraud had been “longstanding and very
comprehensive” (R. 72 at 34); that it had been imple-
mented in a sophisticated way; and that it had injured
his family as well as the victims of the offense. On the
plus side, she found that Schmitz’s remarks at sen-
tencing reflected a genuine acknowledgment of respon-
sibility for his crime. She also commended Schmitz’s
efforts, during the period of his pre-sentence detention,
to teach his fellow inmates how to read. Schmitz’s “posi-
tive contribution” in the latter regard convinced her
that a sentence just below the low end of the Guide-
lines range was appropriate. As noted earlier, the
judge ultimately ordered Schmitz to serve a term
of 84 months.
II.
Schmitz’s first contention is that the district court
committed procedural error by failing to address
his argument that the court should abandon the fraud
guideline in determining a reasonable sentence, in that
the Sentencing Commission had neglected its institu-
tional role and had allowed factor creep to substan-
tially increase the penalties for fraud offenses without
empirical data to suggest that harsher penalties
were necessary.
The district court’s ultimate obligation is to impose
a sentence that is reasonable in light of the sentencing
criteria set forth in 18 U.S.C. § 3553(a). See United States
v. Booker, 543 U.S. 220, 260-61, 125 S. Ct. 738, 765
No. 11-3269 9
(2005); United States v. Dean, 414 F.3d 725, 730-31 (7th
Cir. 2005). The advisory Guidelines range, accurately de-
termined, provides “ ‘the starting point and the initial
benchmark’ ” for the court’s sentencing determination.
Kimbrough v. United States, 552 U.S. 85, 108, 128 S. Ct. 558,
574 (2007) (quoting Gall v. United States, 552 U.S. 38, 49,
128 S. Ct. 586, 596 (2007)); see also Rita v. United States,
551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007); United
States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009). The
court must then look to the section 3553(a) factors in
order to ascertain the appropriate length of the de-
fendant’s sentence. See Gall, 552 U.S. at 49-50, 128 S. Ct.
at 596-97; see also, e.g., United States v. Vallone, 698 F.3d
416, 497 (7th Cir. 2012), pet’n for cert. filed, No. 12-1056,
2013 WL 703419 (U.S. Feb. 25, 2013). After making its de-
termination, the court must articulate the reasons for
its choice of sentence. United States v. Patrick, 707 F.3d 815,
818 (7th Cir. 2013). The explanation need not be exhaus-
tive, see Rita, 551 U.S. at 356, 127 S. Ct. at 2468, but it must
be sufficient to satisfy this court that the sentencing
judge has given meaningful consideration to the sec-
tion 3553(a) factors and the parties’ arguments in deter-
mining how long the defendant’s sentence should
be, see ibid.; Patrick, 707 F.3d at 818-19. This will entail
some discussion of any significant argument the de-
fendant has made with respect to his characteristics
that might bear on the length of the sentence. Id. at 819.
Rote and frivolous arguments may be left unmentioned;
“ ‘[i]f anyone acquainted with the facts would have
known without being told why the judge had not
accepted the argument,’ then the judge need not specifi-
10 No. 11-3269
cally address that point.” Id. (quoting United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)); see also
United States v. Young, 590 F.3d 467, 474 (7th Cir. 2009).
If, on the other hand, a defendant’s argument in mitiga-
tion has sufficient merit as to cause one to wonder, in
the absence of an explanation, why the court rejected
it, then the court must address it explicitly. See Patrick,
707 F.3d at 819; United States v. Vidal, 705 F.3d 742, 744
(7th Cir. 2013).
The court did not commit procedural error in failing
to address Schmitz’s factor creep argument. That was
Schmitz’s principal argument for a below-Guidelines
sentence, and we often observe that a sentencing judge
is obliged to address a defendant’s principal argument
in mitigation. See, e.g., Vidal, 705 F.3d at 744; United
States v. Garthus, 652 F.3d 715, 718 (7th Cir. 2011) (coll.
cases), cert. denied, 132 S. Ct. 2373 (2012). But Schmitz’s
argument was not one addressed to his own charac-
teristics and circumstances. Cf. Patrick, 707 F.3d at 819-
20 (remanding where district court failed to address
defendant’s cooperation with authorities, which gov-
ernment itself cited as a basis for below-Guidelines sen-
tence); Vidal, 705 F.3d at 744-45 (remanding where
district court failed to address defendant’s argu-
ment that his documented psychiatric issues war-
ranted a below-Guidelines sentence). Rather, his was a
categorical challenge to the validity of the fraud guide-
line, on the ground that the severity of sentences called
for by the current incarnation of that guideline is unsup-
ported by any empirical data demonstrating the need
for sentences far longer than those called for by the
No. 11-3269 11
original 1987 version of the guideline, and that the Sen-
tencing Commission had thus failed its institutional
role in adopting the current guideline. Once “Booker
unbound the sentencing judges from the guidelines,”
United States v. Aguilar-Huerta, 576 F.3d 365, 366 (7th
Cir. 2009) (coll. cases), they became empowered to sub-
stitute their own views as to the appropriate sentence
for a particular crime (and defendant) for the penal theo-
ries that inform the pertinent provisions of the Guide-
lines, see id. at 366-67 (coll. cases); see United States v.
Corner, 598 F.3d 411, 414-15 (7th Cir. 2010) (en banc).
Consequently, an argument along the lines of the one
Schmitz made is a proper appeal to the judge’s discretion
to reject a sentence within the Guidelines range. United
States v. Moreno-Padilla, 602 F.3d 802, 814 (7th Cir. 2010)
(citing Aguilar-Huerta, 576 F.3d at 367). But because an
argument like Schmitz’s is a blanket challenge to the
guideline rather than one tailored to his unique charac-
teristics and circumstances, it is not one that the dis-
trict judge must explicitly address. See United States v.
Ramirez, 675 F.3d 634, 640 (7th Cir. 2011) (per curiam);
Garthus, 652 F.3d at 721; Moreno-Padilla, 602 F.3d at 814;
United States v. Pape, 601 F.3d 743, 749 (7th Cir. 2010);
Aguilar-Huerta, 576 F.3d at 367-68. Arguments urging
a reexamination of a particular guideline are more natu-
rally addressed to the Sentencing Commission, as we
pointed out in Garthus. 652 F.3d at 721. Certainly a
district court may address such an argument (and must
do so, if it chooses to reject the guideline, see Gall, 552
U.S. at 51, 128 S. Ct. at 597; Kimbrough, 552 U.S. at 109,
128 S. Ct. at 575; Rita, 551 U.S. at 357, 127 S. Ct. at 2468;
12 No. 11-3269
Corner, 598 F.3d at 415; United States v. Bradley, 675
F.3d 1021, 1025 (7th Cir. 2012) (per curiam)), but if it is
not persuaded by the argument it may pass over it in
silence. See, e.g., Moreno-Padilla, 602 F.3d at 814 (“a
district court is not required to delve into the history of
a guideline so that it can satisfy itself that the process
that produced it was adequate to produce a good guide-
line”) (internal quotation marks and brackets omit-
ted). As we have said, it is clear from the record that
Judge Pallmeyer considered the argument but im-
plicitly concluded that the fraud guideline should be
applied to Schmitz’s conduct. She was perfectly en-
titled to accept the penal philosophy embodied in the
current fraud guideline and was not obligated to
explain why she chose to do so. E.g., Garthus, 652 F.3d
at 721.
Nor do we think that the court committed any error,
procedural or otherwise, with respect to Schmitz’s
health and age. As we have noted, the district judge
expressly addressed this argument, but found that none
of Schmitz’s conditions was out of the ordinary for a
person of his age and that all could be appropriately
treated during his incarceration. Schmitz contends that
the judge’s statement is insufficient to explain why the
judge thought that a term of seven years was no greater
than necessary to deter him from future crimes given
his age and health. We disagree. None of the conditions
that Schmitz has identified (high blood pressure, high
cholesterol, etc.) is out of the ordinary for a 60-year-old.
All are amenable to treatment by medication, and
Schmitz is in fact taking medications for these condi-
No. 11-3269 13
tions. He has presented no evidence that any of his condi-
tions, alone or in combination, is unusual in kind or
degree and/or cannot be controlled with medication.
Schmitz broadly contends that the prison term ordered
by the district court will consume most of the remaining
productive years of his life. The record gives us no reason
to believe that this is true. Schmitz has been incarcerated
since he was arrested in May 2010; thus, by the time he
completes his term, he will only be in his mid-60s, which
by today’s standards does not represent the end of one’s
active years. On this record, the district court was not
required to address Schmitz’s argument in any greater
detail than it did.
Finally, we do not think that the district court com-
mitted a material factual error as to the duration of the
charged fraud offense that requires correction. Schmitz’s
argument in this regard stems from a remark about
his “fraud scheme” that the judge made in assessing
the gravity of the offense. In context, what the judge said
is this:
I am aware that [Schmitz’s] fraud was long-standing
and very comprehensive.
Apart from—it appears that since 1996, when
Mr. Schmitz left his position with the bank, he
really has not been employed in any legitimate, lawful
way. He got a severance payment from the bank, as
I understand it. He received some social security
money via his brother. But essentially his life since
1996 has been given over to this fraud scheme in ways
that are a mystery to people that—I think were con-
cealed to the people who love him and know him well.
14 No. 11-3269
The fact that it was long-standing and comprehen-
sive as it was justifies a substantial prison term,
it seems to me. . . .
***
So Mr. Schmitz’s offense conduct is very serious.
It was long-standing. It victimized not only the fi-
nancial victims but certainly victimized his family.
His wife, we learned, was unaware of what was
going on and has only been discovering a lot of it
over the months since Mr. Schmitz has been in cus-
tody. And now his family—his marriage is crumbling
and his family is among the victims as well.
R. 72 at 34-35 (emphasis ours). Schmitz interprets the
highlighted remarks as an erroneous finding by the
judge that the charged scheme to defraud the banks
dated back to 1996, some seven-plus years before it
actually began. But what prompted the judge’s remark
was the shroud of mystery that enveloped Schmitz’s
employment history from 1996 onward. The probation
officer had been largely unable to verify Schmitz’s re-
ported work as a consultant in those years (see R. 73
PSR at 20-21); the limited, available information as to
Schmitz’s income during those years (including what he
had reported to Pretrial Services, and what his wife
had believed he was earning) was inconsistent (see R. 73
PSR at 21); and Schmitz’s wife, in her own effort to sort
out the couple’s finances, “ha[d] discovered an over-
whelming abundance of information indicative of the
defendant’s deception throughout the last 15 years” (R. 73
PSR at 18). In context, it is apparent to us that what the
No. 11-3269 15
judge meant to say was that since 1996, Schmitz’s life
had been given over to deception and fraud—a pattern
that included the charged offense but was not limited to
it. That is a reasonable inference given the inability to
pin down what precisely Schmitz was doing, how
much money he was earning, and where that money
was coming from. The judge’s use of the term “fraud
scheme” was merely an unfortunate slip of the tongue.
The judge could not have been laboring under a misun-
derstanding that the charged scheme to defraud had
begun as early as 1996. The criminal information (R. 9 at
2), the plea agreement (R. 21 at 3), the remarks by both
the prosecutor and Schmitz at the change of plea
hearing (R. 71 at 16-17, 28), and the parties’ pre-sentencing
memoranda (R. 23 at 3-4; R. 27 at 1; R. 52 at 2) all
indicated to the court that the charged scheme began
in or about 2004. In her presentence report, the proba-
tion officer advocated pushing that date back to
July 2003, so as to take account of a bank loan that
Schmitz had fraudulently obtained at that time
from CitiFinancial (and which he later paid off). R. 73
PSR at 4-5.4 It was because Schmitz committed that
4
The probation officer’s view was consistent with the
probable cause affidavit that a postal inspector had prepared
in support of the original criminal complaint that resulted in
Schmitz’s arrest. See R. 1 at 3 ¶ 5 (“The investigation to date
has focused on allegations that since at least in or about 2003,
[Schmitz] has fraudulently attempted to obtain millions of
(continued...)
16 No. 11-3269
fraud while he was still on supervision from a 2001 con-
viction for credit card fraud that the probation officer
added points to Schmitz’s criminal history which
placed him in category II and not I. U.S.S.G. § 4A1.1(d);
R. 73 PSR at 16. This was a matter that the parties ad-
dressed in their pre-sentencing memoranda and that
the court resolved (in favor of the probation officer’s
view) at the sentencing hearing. R. 72 at 5, 6, 13, 16-17.
In sum, the district court’s mistake (if any) lay in its
word choice rather than any misapprehension as to the
beginning and duration of the charged scheme. We there-
fore discern no need to remand the case for clarifica-
tion on this point. It was a plausible inference that
Schmitz’s history of fraud began well before the charged
scheme did; and we do not think there is any real possi-
bility that the sentencing judge blurred the distinc-
tion between the two in evaluating the pertinent sen-
tencing factors. For example, standing alone, the
charged scheme, which lasted well over six years, was
both serious and lengthy, as the court said it was. In
short, there is no real possibility that the court was mis-
taken about the duration of the charged crime, let alone
that such an error affected the court’s evaluation of
the Guidelines and statutory factors and its choice
of sentence.
4
(...continued)
dollars of loan proceeds from at least seven different lenders,
including financial institutions. . . .”).
No. 11-3269 17
III.
Having concluded that the district court committed
no procedural or factual error in sentencing Schmitz,
we A FFIRM his sentence.
5-29-13