NONPRECEDENTIAL DISPOSITION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
Submitted December 15, 2011
Decided January 25, 2012
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐2657 Appeal from the United States
District Court for the Northern
UNITED STATES OF AMERICA, District of Illinois, Western Division.
Plaintiff‐Appellee,
No. 07 CR 50072‐1
v.
Frederick J. Kapala,
MITCHEL A. FUCHS, Judge.
Defendant‐Appellant.
O R D E R
A jury convicted Mitchel Fuchs of mail and wire fraud, see 18 U.S.C. §§ 1341, 1343,
for brokering subprime mortgages by enticing lenders with falsified loan applications and
phony documentation. At sentencing the judge determined that Fuchs qualified for a
two‐step increase in offense level for abuse of a position of trust, see U.S.S.G. § 3B1.3, which
(in combination with other factors) resulted in an advisory guidelines range of 100 to
125 months. The judge went above that range and imposed a total sentence of 144 months.
In support of his decision, the judge reasoned that Fuchs (1) caused substantial monetary
and nonmonetary harm not accounted for in the guidelines calculation; (2) presented a
greater‐than‐usual need for deterrence because his prior prison sentences had not curbed
his criminal behavior; and (3) was “a callous, manipulative, predatory, and merciless
person.”
No. 11‐2657 Page 2
Fuchs appealed, challenging only the abuse‐of‐trust increase. We agreed that the
increase was erroneous; accordingly, we vacated Fuchs’s sentence and remanded for
resentencing without the § 3B1.3 adjustment. United States v. Fuchs, 635 F.3d 929, 937 (7th
Cir. 2011).
At resentencing Fuchs raised no objection to the guidelines calculation, which when
adjusted to eliminate the § 3B1.3 increase, resulted in an advisory range of 84 to 105 months.
Instead, Fuchs argued for a sentence that reflected his postsentencing rehabilitation,
pursuant to United States v. Pepper, 131 S. Ct. 1229, 1241 (2011). Specifically, Fuchs explained
that since his first sentencing, he (1) has not been cited for misconduct; (2) has held jobs,
including tutoring other inmates; and (3) has enrolled in classes. The government agreed
with Fuchs’s reading of Pepper but argued that the aggravating factors present at the first
sentencing substantially outweighed any postsentencing rehabilitative conduct. It therefore
recommended an above‐guidelines sentence.
The judge considered the arguments on both sides and arrived at an
above‐guidelines sentence of 117 months. The judge stated that he considered Fuchs’s
postsentencing rehabilitative conduct as a mitigating factor but did not give it much weight.
Rather, the judge expressly adopted his explanation from the first sentencing, concluding
that his assessment of Fuchs had not changed. Fuchs again appealed.
Fuchs’s counsel now seeks to withdraw under Anders v. California, 386 U.S. 738
(1967), because he believes this second appeal presents no nonfrivolous issues. Fuchs
opposes this motion and requests the appointment of new counsel. We confine our review
to the potential issues identified in counsel’s facially adequate brief and in Fuchs’s response.
United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Fuchs first asserts that his criminal‐history category was incorrectly calculated. But
as his counsel points out, this issue could have been raised in the first appeal and is
therefore waived. See United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). Fuchs also
maintains that his above‐guidelines sentence was necessarily unreasonable. On the
contrary, “[t]here is no presumption that a sentence outside the guidelines’ range is
unreasonable.” United States v. Abebe, 651 F.3d 653, 657 (7th Cir. 2011) (quotation marks
omitted). As explained above, here, the sentencing judge offered an adequate statement of
reasons pursuant to 18 U.S.C. § 3553(a); under such circumstances, we will uphold an
above‐guidelines sentence. Id.
Fuchs’s primary argument is that his trial and appellate counsel provided ineffective
assistance. In particular, he accuses his current counsel of several (seemingly minor) errors
in his Anders materials. Even assuming that Fuchs’s complaints are meritorious, as his
No. 11‐2657 Page 3
counsel aptly points out, we have instructed defendants to table ineffective‐assistance issues
for collateral review. See United States v. Waltower, 643 F.3d 572, 579 (7th Cir. 2011) (citing
Massaro v. United States, 538 U.S. 500, 504 (2003)). Thus, we agree that there are no
nonfrivolous grounds for review.
Accordingly, we GRANT counsel’s motion to withdraw. Fuchs’s motion for
appointment of substitute counsel is DENIED, and the appeal is DISMISSED.
